ADMINISTRATIVE REVIEW TRIBUNAL BILL 2023 Explanatory Memorandum

Commonwealth of Australia Explanatory Memoranda

[Index] [Search] [Download] [Bill] [Help]

ADMINISTRATIVE REVIEW TRIBUNAL BILL 2023

2022-2023 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA HOUSE OF REPRESENTATIVES ADMINISTRATIVE REVIEW TRIBUNAL BILL 2023 EXPLANATORY MEMORANDUM (Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)

TABLE OF CONTENTS GLOSSARY ........................................................................................................................................................... i GENERAL OUTLINE ......................................................................................................................................... 1 FINANCIAL IMPACT ........................................................................................................................................ 7 STATEMENT OF COMPATIBLITY WITH HUMAN RIGHTS ................................................................... 8 Administrative Review Tribunal Bill 2023 ........................................................................................................ 8 NOTES ON CLAUSES ...................................................................................................................................... 20 PART 1--PRELIMINARY ............................................................................................................................. 20 PART 2--ESTABLISHMENT OF ADMINISTRATIVE REVIEW TRIBUNAL ......................................... 32 Division 1--Preliminary ............................................................................................................................. 32 Division 2--Establishment of Tribunal ...................................................................................................... 32 PART 3--STARTING A REVIEW ................................................................................................................ 36 Division 1--Preliminary ............................................................................................................................. 36 Division 2--Key concepts for review of decisions ..................................................................................... 36 Division 3--Applying for review of decision ............................................................................................. 39 Division 4--After an application is made ................................................................................................... 42 PART 4--PROCEEDINGS ............................................................................................................................. 49 Division 1--Preliminary ............................................................................................................................. 49 Division 2--Applications to Tribunal ......................................................................................................... 49 Division 3--Practice Directions.................................................................................................................. 50 Division 4--Constitution of Tribunal for a proceeding .............................................................................. 53 Division 5--Tribunal procedure ................................................................................................................. 60 Division 6--Tribunal powers ...................................................................................................................... 73 Division 7--Public interest certificates and interventions .......................................................................... 84 Division 8--Decision .................................................................................................................................. 87 Division 9--Tribunal guidance decisions ................................................................................................... 99 Division 10--After proceeding ends ......................................................................................................... 101 Division 11--Offences.............................................................................................................................. 104 PART 5--GUIDANCE AND APPEALS PANEL ........................................................................................ 107 Division 1--Preliminary ........................................................................................................................... 107 Division 2--President may refer application on own initiative ................................................................ 107 Division 3 - Party may apply to refer Tribunal decision to guidance and appeals panel .......................... 108 PART 6--PROCEEDINGS IN INTELLIGENCE AND SECURITY JURISDICTIONAL AREA ............. 117 Division 1--Preliminary ........................................................................................................................... 117 Division 2--Starting a review ................................................................................................................... 120 Division 3--Proceedings .......................................................................................................................... 124 Division 4--Disclosure of information ..................................................................................................... 130 Division 5--Decisions on review ............................................................................................................. 138 PART 7--APPEALS AND REFERENCES OF QUESTIONS OF LAW TO THE FEDERAL COURT .... 142 Division 1--Preliminary ........................................................................................................................... 142 Division 2--Appeals on questions of law ................................................................................................. 142 Division 3--Transfer of appeals to Federal Circuit and Family Court of Australia (Division 2) ............. 147 Division 4--Matters remitted to Tribunal ................................................................................................. 148 Division 5--Referring questions of law.................................................................................................... 148 Division 6--Sending and disclosing documents ....................................................................................... 149

PART 8--MEMBERS AND STAFF OF TRIBUNAL ................................................................................. 153 Division 1--Preliminary ........................................................................................................................... 153 Division 2--Members of Tribunal ............................................................................................................ 153 Division 3--Member appointment provisions .......................................................................................... 169 Division 4--Management of Tribunal ...................................................................................................... 190 Division 5--Staff and consultants............................................................................................................. 201 Division 6--Application of finance law and reporting requirements ....................................................... 203 Division 7--Other matters concerning management ................................................................................ 204 PART 9--ADMINISTRATIVE REVIEW COUNCIL ................................................................................. 206 Division 1--Preliminary ........................................................................................................................... 206 Division 2--Establishment ....................................................................................................................... 206 Division 3--Council functions etc. ........................................................................................................... 208 Division 4--Appointment ......................................................................................................................... 211 Division 5--Staff to assist Council ........................................................................................................... 219 Division 6--Annual report ........................................................................................................................ 219 PART 10--NOTICE AND INFORMATION ABOUT ADMINISTRATIVE DECISION .......................... 220 Division 1--Preliminary ........................................................................................................................... 220 Division 2--Decision-makers to give notice of decisions ........................................................................ 220 Division 3--Decision-makers to give reasons for decisions ..................................................................... 223 PART 11--MISCELLANEOUS ................................................................................................................... 228 Division 1--Simplified outline ................................................................................................................. 228 Division 2--Confidentiality ...................................................................................................................... 228 Division 3--Delegation ............................................................................................................................ 232 Division 4--Performing and exercising functions and powers of Tribunal .............................................. 235 Division 5--Other matters ........................................................................................................................ 248 Division 6--Rules and regulations ........................................................................................................... 254 ii

GLOSSARY In this Explanatory Memorandum, the following abbreviations are used: Abbreviation Definition AAT Administrative Appeals Tribunal AAT Act Administrative Appeals Tribunal Act 1975 ABC Australian Broadcasting Corporation ACC Act Australian Crime Commission Act 2002 ACIC Australian Criminal Intelligence Commission AFP Australian Federal Police AHRC Act Australian Human Rights Commission Act 1986 APS Australian Public Service ASIO Australian Security Intelligence Organisation ASIO Act Australian Security Intelligence Organisation Act 1979 Archives Act Archives Act 1983 the Bill Administrative Review Tribunal Bill 2023 CEO Chief Executive Officer Commonwealth The Commonwealth of Australia the Committee Tribunal Advisory Committee the Council Administrative Review Council Criminal Code Criminal Code Act 1995 DHS Department of Human Services (now Services Australia) DSS Department of Social Services ET Act Electronic Transactions Act 1999 Evidence Act Evidence Act 1995 FATA Foreign Acquisitions and Takeovers Act 1975 FCA Federal Court of Australia i

Abbreviation Definition FCFCOA Federal Circuit and Family Court of Australia FCA Act Federal Court of Australia Act 1976 FOI Act Freedom of Act 1982 Guide to Offences Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers HR Human Resources Interpretation Act Acts Interpretation Act 1901 IT Information Technology Legislation Act Legislation Act 2003 Legislation Regulation Legislation (Exemptions and Other Matters) Regulation 2015 Migration Act Migration Act 1958 NDIA National Disability Insurance Agency NDIS National Disability Insurance Scheme NI Act Norfolk Island Act 1979 NIC National Intelligence Community NSI Act National Security Information (Criminal and Civil Proceedings) Act 2004 Ombudsman Act Ombudsman Act 1976 PGPA Act Public Governance, Performance and Accountability Act 2013 Privacy Act Privacy Act 1988 PS Act Public Service Act 1999 Robodebt Royal Royal Commission into the Robodebt Scheme Commission Robodebt Royal Report of the Royal Commission into the Robodebt Scheme Commission Report SBS Special Broadcasting Service ii

Abbreviation Definition SES Senior Executive Service the Tribunal Administrative Review Tribunal iii

ADMINISTRATIVE REVIEW TRIBUNAL BILL 2023 GENERAL OUTLINE 1. Effective administrative review is a cornerstone of Australia's system of government. A strong, user-focused administrative review body is fundamental to ensuring government decision-making is as transparent and robust as possible. It offers an avenue for community members to seek independent review of government decisions that have major and sometimes life-altering consequences. This function is critical to protecting the rights and interests of individuals and organisations, particularly the rights and interests of the most vulnerable members of our community. High quality review of administrative decisions is also a driver of better decision-making across government. 2. As noted in the Robodebt Royal Commission Report: Effective merits review is an essential part of the legal framework that protects the rights and interests of individuals; it also promotes government accountability and plays a broader important role in improving the quality and consistency of government decisions. 3. The Administrative Review Tribunal Bill 2023 (the Bill) would establish a new, fit-for-purpose, federal administrative review body, to be named the Administrative Review Tribunal (the Tribunal), which will replace the Administrative Appeals Tribunal (AAT). 4. The performance, funding and operation of the AAT have been considered in a number of reviews and reports over the last decade. Most recently, the Senate Legal and Constitutional Affairs Committee reported on the performance and integrity of the administrative review system in March 2022. The report recommended the abolition of the AAT and the establishment of a new federal administrative review body, the establishment of a transparent merit-based selection process for members of the AAT (and new federal administrative review body), and the re-establishment of the Administrative Review Council (the Council). This Bill gives effect to those recommendations. 5. The Bill is informed by: • the outcomes of public consultation undertaken in April and May 2023 • guidance from the Administrative Review Expert Advisory Group, chaired by former High Court Justice, the Hon Patrick Keane AC KC • close engagement across government and with the AAT, and • targeted consultation on draft legislation in September and October 2023. 6. The Attorney-General's Department (the department) released the Administrative Review Reform Issues Paper (Public Issues Paper) and short survey on 3 April 2023, with submissions open until 12 May 2023. During the public submission process, the department received 120 submissions and 287 survey responses and met with 147 individuals and organisations in 80 consultation meetings throughout April and May 2023 to discuss the matters in the Public Issues Paper. 1

7. The department also met with over 400 AAT staff and over 160 AAT members, and heard directly from AAT users across a number of user experience consultation sessions. 8. In September and October 2023, the department consulted with (among others) the Expert Advisory Group and a number of peak bodies, legal assistance providers and user advocates, on an early draft of the Bill. 9. The Bill would establish the Tribunal and the Council. The Tribunal would conduct merits review of administrative decisions. The Bill would provide a comprehensive framework for the Tribunal to improve the experience of those seeking review of government decisions and ensure that reviews are conducted effectively, efficiently and fairly. The Tribunal would be required to pursue the objective of providing an independent mechanism of review that: • is fair and just • ensures that applications for review are resolved as quickly, and with as little formality and expense, as a proper consideration of matters before the Tribunal permits • is accessible and responsive to the diverse needs of parties to proceedings • improves the transparency and quality of government decision-making, and • promotes public trust and confidence in the Tribunal. 10. To achieve this objective, the Bill includes: • a simple membership structure with clear qualification requirements and role descriptions for each level of membership • clear and delineated roles and responsibilities for those who hold leadership positions in the Tribunal, including the President and Principal Registrar • a transparent and merit-based appointment process for members, informed by the operational needs of the Tribunal • powers for the President to manage the performance, conduct and professional development of members • a user-focused design, including simpler and more consistent processes and an emphasis on non-adversarial approaches to resolving applications, and safeguards to ensure representatives comply with their obligations • a suite of powers and procedures, which would be largely harmonised across the Tribunal, to respond flexibly to changing caseloads • mechanisms to identify, escalate and report on systemic issues in administrative decision-making, and • a guidance and appeals panel, to escalate systemic issues, improve the quality and consistency of Tribunal decision-making and increase confidence in Tribunal decisions. User-focused accessible design 11. The Bill would require that the Tribunal provide an independent mechanism of review that is accessible and responsive to the diverse needs of parties. This reflects the fact that many Tribunal users may require particular adjustments to participate meaningfully in Tribunal processes. This may involve the Tribunal making appropriate adjustments in relation to facilities or technology or access to information. 2

12. The Bill would enable the President to make practice directions to promote accessibility and would provide specifically for the appointment of an interpreter or a litigation guardian where needed to ensure a person can meaningfully participate in a proceeding. Structure and membership of the Tribunal 13. The Tribunal would be made up of the President, Deputy Presidents (Judicial and Non-Judicial), senior members and general members. A single CEO and Principal Registrar (Principal Registrar) would be responsible for assisting the President to manage the administrative affairs of the Tribunal and providing corporate and registry services. The Principal Registrar would be the Accountable Authority for the purposes of Commonwealth finance law. The President would be supported by the Tribunal Advisory Committee (the Committee) consisting of the President, the Principal Registrar, the jurisdictional area leaders and any other members nominated by the President. These senior leaders, both individually and collectively through the Committee, would be responsible for ensuring that the Tribunal pursues the objective listed above. 14. The functions of the President would include participating as a member of the Tribunal by hearing matters, particularly of a complex or sensitive nature. The President would be responsible for managing the business of the Tribunal and the performance and conduct of members. The President would be required to ensure that the Tribunal continually pursues its objective, and to provide intellectual leadership to the Tribunal. 15. The Bill would set out clear and delineated functions and qualification requirements for Deputy Presidents, senior members and general members. 16. The Tribunal would be made up of eight jurisdictional areas: General, Intelligence and Security, Migration, National Disability Insurance Scheme, Protection, Social Security, Taxation and Business and Veterans' and Workers' Compensation. Jurisdictional areas would be led by the President or by a Non-Judicial Deputy President appointed on a salaried basis. The President would be able to establish lists within jurisdictional areas. 17. The Minister would assign Non-Judicial Deputy Presidents as jurisdictional area leaders in consultation with the President. Jurisdictional area leaders' functions would include providing intellectual leadership, identifying and managing trends and systemic issues in the caseload of the jurisdictional area and managing the performance, conduct and professional development of members assigned to that jurisdictional area. Importantly, jurisdictional area leaders would be required to assist the President to ensure that the Tribunal operates efficiently and effectively and continually pursues its objective across all jurisdictional areas. 18. Senior members would lead lists, established by the President within jurisdictional areas, and determine more complex matters. General members would hear and determine matters and perform functions under this Bill and other Acts as required. 19. The President would assign members within the Tribunal (other than Deputy Presidents), allowing them to be deployed flexibly across the Tribunal's jurisdictions, according to its operational needs and with regard to each member's knowledge, skills and expertise. 3

Transparent and merit-based selection process 20. The Bill would enshrine a transparent and merit-based selection process for members to ensure independent and high quality decision-making within the Tribunal. 21. The Bill would require that all membership positions in the Tribunal, other than Judicial Deputy Presidents, be filled through a competitive, publicly-advertised, merit-based process. This process would be supported by regulations and rules which would set out detailed procedural requirements and selection criteria that members must meet. The Bill would allow the Minister to establish assessment panels to assess candidates for appointment. Before recommending the appointment of a member to the Governor-General, the Minister would be required to seek and take into account the views of the President in relation to the Tribunal's operational needs, the financial capacity of the Tribunal for the appointment, and the effect on the relative number of members at each level. Performance, conduct and professional development of members 22. The President would have powers to manage the performance, conduct and professional development of members. Strong performance and conduct standards would be in place and enforceable by the President. The Bill would require the President to establish a code of conduct and a performance standard for members. The President would be empowered to direct members, investigate conduct and to temporarily restrict the duties of a member while an investigation is taking place. The President would be assisted in these functions by the jurisdictional area leaders and the Committee, and would be required to report on them in their annual report. 23. A member's appointment could be terminated by the Governor-General, on the recommendation of the Minister, if they breach the code of conduct or the performance standard, fail without reasonable excuse to disclose a conflict of interest, are declared bankrupt, are absent without leave or are convicted of an indictable offence (among other reasons). The President would be required to advise the Minister if they reasonably believe grounds for termination of a member exist. Enhanced powers and procedures 24. The Bill would provide for simple and accessible methods of applying for review, including by allowing the President to make practice directions setting out the manner in which applications may be made. The Bill would create an adaptive framework that creates flexibility for the Tribunal to adjust and continuously improve its operation, and to support collaboration on best practice across its entire caseload. The Bill would also provide for a full set of powers and procedures to conduct a review that can be applied flexibly across all matters. The Bill would provide standardised powers and procedures across the jurisdiction of the Tribunal. Other Acts and some legislative instruments could provide different provisions through a contrary intention. Bespoke arrangements for particular cohorts, where necessary, would be contained within the legislation that deals with those decisions, rather than within the Bill. 25. The Bill would allow for staff who are appropriately qualified to be authorised to perform some functions and exercise some powers of the Tribunal. This would enable registrars to perform case management functions and exercise powers to progress matters, such as conducting case conferences and issuing directions to parties. This would facilitate the timely and efficient resolution of matters by allowing members 4

and staff to undertake tasks that are most suited to their qualification, experience and skills. 26. The Bill would also set out the obligations, rights and responsibilities of the parties to a Tribunal proceeding, retaining general principles relating to proceedings that have been well-established in the AAT. Co-operation and assistance contribute to good quality decision-making. On this basis, the Tribunal would be required to provide parties with an opportunity to present their case, and parties to proceedings would be required to assist the Tribunal to reach the correct or preferable decision. 27. While recognising the important role that parties to a proceeding can play in resolving a matter, the Bill would also provide greater flexibility in the participation of decision-makers in proceedings before the Tribunal. Decision-makers could elect not to participate in a kind of proceeding or the rules could deem that, in certain kinds of proceedings, the decision-maker does not participate. This recognises that some proceedings often benefit from a less formal and less adversarial process of review and reflects that some decision-makers do not currently participate in matters in the AAT. 28. The Tribunal would be able to order a decision-maker to participate in a particular proceeding where it would assist the Tribunal in making its decision. This would provide the Tribunal with the flexibility it needs to resolve matters efficiently and with regard to the needs of the matter - in particular, where a matter may be amenable to dispute resolution. A rule-making power included in the Bill would ensure that the settings relating to the participation of decision-makers could be adjusted in response to operational experience. 29. In addition to these new powers and procedures, the Tribunal would also have all of the powers and procedures of the AAT, including powers to resolve a matter by dismissal, allowing an applicant to withdraw their matter and providing for circumstances in which the Tribunal could make a decision on the papers without holding a hearing. These powers and procedures have been enhanced to improve efficiency - for example, by providing for additional circumstances in which the Tribunal can hear a matter on the papers. 30. Recognising the importance of balancing the need for open justice and the privacy of individuals appearing before the Tribunal, the Bill would also provide for the Tribunal to make non-disclosure and non-publication orders and hear matters in private where appropriate. This is consistent with the powers available to the AAT, but the Bill rebalances the relevant considerations the Tribunal should take into account before making an order to reflect changes in attitudes towards the need to protect personal and sensitive information. 31. The Bill would also retain and simplify specific powers and procedures applicable to intelligence and security matters (matters heard in the Security Division of the AAT). 32. The Bill would require the Tribunal to provide written reasons for a decision on the review of a reviewable decision to ensure that parties to a proceeding understand the nature of and reasons for a decision that affects them. The Bill would also ensure that parties are advised of their review rights in relation to a decision of the Tribunal. The Bill would also provide for appeals pathways to the Federal Court of Australia (FCA), including transfer of matters to the Federal Circuit and Family Court of Australia (FCFCOA) consistent with arrangements in the current AAT Act. 5

Improving administrative decision-making 33. As recommended by the Robodebt Royal Commission Report and the Senate Legal and Constitutional Affairs Committee, the Bill would also re-establish the Council. Its functions would include monitoring the integrity of the Commonwealth administrative review system, inquiring into and reporting on systemic challenges in administrative law, and supporting education and training for Commonwealth officials in relation to administrative decision-making and the administrative law system. The Council's dedicated role of supporting education and training for Commonwealth officials would improve the quality of future administrative decision-making and provide decision-makers with greater understanding of how administrative law principles underpin the appropriate use of public power. 34. The members of the Council would include the President, the Commonwealth Ombudsman, the Australian Information Commissioner and appointed members with extensive knowledge or experience of administrative law or public administration. The Council would have to include at least one member with direct experience and knowledge of the needs of people significantly affected by government decisions. 35. The senior leadership of the Tribunal and the re-established Council would each have specific functions under the Bill to identify and monitor systemic issues in government decision-making. The President would be required to report systemic issues identified in the caseload of the Tribunal to government entities, ministers and the Council. The Council would report on these issues, which could include any actions taken by the Council or responses from government. These functions would operate in a coherent way to bring systemic issues to the attention of government and Commonwealth entities who make administrative decisions. The President's functions would also include consulting non-government and civil society entities, ensuring that users' voices and interests are heard directly by the most senior officials in the Tribunal. 36. The Bill would implement recommendations of the Robodebt Royal Commission Report in relation to the publication of Tribunal decisions. Under the Bill, the Tribunal can publish any of its decisions and would be required to publish decisions involving a significant conclusion of law, or with significant implications for Commonwealth policy or administration. 37. The Bill would also provide requirements for the notice and information that must be given in relation to administrative decisions more broadly. It would strengthen the requirements on decision-makers for what must be included in a statement of reasons to ensure that persons affected understand decisions that have been made about them, including whether and how they can seek review of those decisions. Guidance and appeals panel 38. Drawing on experience in administrative tribunals of other jurisdictions, the Bill would establish a guidance and appeals panel within the Tribunal to resolve matters raising systemic issues and review Tribunal decisions that may be affected by error. The guidance and appeals panel would provide a mechanism for escalating significant issues and addressing material errors in Tribunal decisions. This would promote consistent Tribunal decision-making and rapid responses to emerging issues. Although the panel may only make a small proportion of the Tribunal's decisions, the normative effect of its decisions on Tribunal members, internal reviewers and administrators would enhance decision-making across the system. 6

39. A party to a Tribunal decision would be able to apply to the President to refer the decision to the guidance and appeals panel if the decision raises a significant issue in administrative decision-making or could contain a material error. The President would also be able to refer a matter to the guidance and appeals panel on their own motion before the Tribunal makes a decision if they consider that the matter raises an issue of significance to administrative decision-making. 40. The Bill would require that matters heard by the guidance and appeals panel are constituted by appropriately senior members. For a matter of systemic significance, the Tribunal would have to be constituted by two or three members, including either the President or a Deputy President. Decision-makers would be required to participate in guidance and appeals panel reviews, and all substantive decisions of the guidance and appeals panel would be required to be published. 41. A decision of the guidance and appeals panel on an issue of significance to administrative decision-making would provide clarity and certainty for others seeking review and would enhance the quality of future administrative decisions, both by the original decision-maker and by the Tribunal, on similar issues. Tribunal members would be required to treat these decisions as guidance decisions - unless the President declares that the decision is not a guidance decision. The Bill would require that, in a proceeding, members of the Tribunal have regard to guidance decisions that the Tribunal considers raises facts or issues similar to those raised by the proceeding. 42. This is intended to improve the quality of, and increase confidence in administrative decision-making, by enabling the Tribunal to identify and address systemic issues, correct patterns of error including in original decision making, and assist applicants to address errors in Tribunal decisions without needing to resort to the courts. FINANCIAL IMPACT 43. The Government has committed $5.3 million in funding for the re-establishment and resourcing of the Council over four years, and $1.7 million in ongoing funding to support its operations. The resourcing needs of the Tribunal are being considered in the 2023-24 MYEFO context and in the 2024-25 Budget context. 7

STATEMENT OF COMPATIBLITY WITH HUMAN RIGHTS Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. ADMINISTRATIVE REVIEW TRIBUNAL BILL 2023 44. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Overview of the Bill 45. The Administrative Review Tribunal Bill 2023 (the Bill) would establish a new federal administrative review body (the Administrative Review Tribunal (the Tribunal)), provide for the appointment of members to the Tribunal and the powers and procedures of the Tribunal. It would also re-establish the Administrative Review Council. 46. The Tribunal's objective will be to providing an independent mechanism of review that is: • fair and just • ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of matters before the Tribunal permits • is accessible and responsive to the diverse needs of parties to proceedings • improves the transparency and quality of government decision-making, and • promotes public trust and confidence in the Tribunal. 47. To ensure it is able to achieve this objective, the Bill would establish a Tribunal with the following key features: • a user focused design, including simpler and more consistent processes, and an emphasis on non adversarial approaches to resolving applications • a suite of powers and procedures--largely harmonised across the Tribunal--to respond flexibly to changing caseloads • mechanisms to identify, escalate and report on systemic issues in administrative decision making, including through a new guidance and appeals panel • a simple membership structure with clear qualification requirements and role descriptions for each level of membership • clear and delineated roles and responsibilities for those who hold leadership positions in the Tribunal • a transparent and merit based appointment process for members, and • powers for the President to manage the performance, conduct and professional development of members. 48. The Bill would re-establish the Administrative Review Council (the Council). The Council's functions would include monitoring the integrity of the Commonwealth administrative review system, inquiring into and reporting on systemic challenges in administrative law, and supporting education and training for Commonwealth officials in relation to administrative decision-making and the administrative law 8

system. The Council will comprise members with administrative law expertise and knowledge of the needs of people significantly affected by government decisions. 49. The Bill would provide requirements for the notice and information that must be given in relation to administrative decisions more broadly. It would strengthen the requirements on decision-makers for what must be included in a statement of reasons to ensure that persons affected understand decisions that have been made about them, including whether and how they can seek review of those decisions. Human rights implications 50. This Bill engages the following rights: • the right to an effective remedy in Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR) • the right to a fair and public hearing in Article 14 of the ICCPR • the right to equality before the law in Article 26 of the ICCPR • the right to freedom from arbitrary and unlawful interferences with privacy in Article 17 of the ICCPR • the right of access to justice for people with disability in Article 13 of the Convention on the Rights of Persons with Disabilities (CRPD) • the right to a presumption of innocence in Article 14(2) of the ICCPR • the right to freedom of opinion and expression in Article 19 of the ICCPR (engaged tangentially). The right to an effective remedy and a fair hearing contained in Article 2(3) and 14 of the ICCPR 51. Article 2(3) of the ICCPR provides that States shall undertake to ensure the right to an effective remedy for any violation of rights or freedoms recognised by the ICCPR. It includes the right to have a remedy determined by competent judicial, administrative or legislative authorities. This right also encompasses the duty to ensure component authorities enforce any such remedies when granted. The Bill as a whole promotes the right to an effective remedy by providing for the establishment of an administrative review tribunal that is user-focused, efficient, accessible, independent and fair. It particularly promotes the right to an effective remedy in the ways listed below. 52. Article 14(1) of the ICCPR protects the right that all persons are treated equally before courts and tribunals. It further provides that every person, in the determination of 'rights and obligations in a suit at law' is entitled to a 'fair and public hearing by a competent, independent and impartial tribunal established by law'. 53. The extent to which Article 14(1) applies to administrative review proceedings (whether such proceedings constitute a 'suit at law') is not fully settled. To the extent it may apply, the Bill as a whole promotes the right to a fair hearing by providing for the establishment of an administrative review tribunal that is user-focused, efficient, accessible, independent and fair. 54. To the extent the right to a fair hearing is engaged in tribunal proceedings, the Bill particularly promotes that right in the ways listed below. 9

Right to present case 55. Division 5 of Part 4 of the Bill provide general principles of tribunal proceedings that promote the Bill's objectives of providing an independent mechanism of review that is fair and just; resolves matters as quickly, and with as little formality and expense, as is consistent with a proper consideration of the matters before the Tribunal, and is accessible and responsive to the diverse needs of parties. In particular, clause 55 promotes the right to a fair hearing under Article 14 of the ICCPR by requiring the Tribunal to ensure that each party has an opportunity to present their case and to respond to documents and evidence before the Tribunal. 56. Clause 55 is limited by clauses 69, 70, 78, 91 and all of Part 6. These clauses restrict access to hearings, information or documents and therefore engage with the right to a fair hearing and the right to an effective remedy. Clause 69 provides that hearings should generally be in public unless a Tribunal order or practice direction states otherwise. Clause 70 provides that the Tribunal may restrict the publication or disclosure of information in certain circumstances. Clause 78 applies restrictions on the inspection of documents produced under summons, including if another party objects to the party inspecting the documents. These clauses are discussed further below. 57. Clause 91 provides for the operation of public interest certificates to limit the disclosure of information given to the Tribunal. Part 6 of the Bill, which deals with proceedings in the Intelligence and Security jurisdictional area, provides a default position that these proceedings are to be held in private. Part 6 also contains various provisions that restrict the publication and disclosure of information in relation to proceedings in the Intelligence and Security jurisdictional area. These parts of the Bill provide mechanisms to protect certain information from disclosure, and being shared with parties to the review in certain circumstances. They engage with the rights to a fair hearing and an effective remedy by limiting, in some circumstances, the ability of a party to access some information in the proceedings. 58. To the extent these provisions limit rights, the limitation is for a legitimate purpose, namely to promote national security and the public interest (as envisioned by Article 14(1) of the ICCPR). Strict criteria apply for the issuing of public interest certificates over a proceeding, and the Tribunal can allow disclosure of information subject to a certificate in limited circumstances. The Bill also provides for parties to seek review of decisions on public interest certificates in the FCA. 59. The limitation is proportionate, as the certificate only applies to information in the proceeding that it would be against the public interest to disclose. Proceedings in the Intelligence and Security jurisdictional area, or involving public interest certificates under clause 91, must be constituted with a Deputy President or the President. This ensures these matters are considered at the most senior levels within the Tribunal. The information protections applied in relevant parts of the Bill promote public safety and national security, and ensure a carefully balanced framework for people to seek independent review of such decisions without compromising sensitive information. Leave to appeal from certain decisions 60. Part 7 of the Bill promotes the right to a fair hearing under Article 14 of the ICCPR by allowing for appeals to the FCA on questions of law from decisions of the Tribunal and allowing for transfer of appeals from the FCA to the FCFCOA. 10

Use of audio or video link 61. The Bill intends that proceedings be conducted in person or virtually. The word 'appear' is used in relation to parties and persons participating in proceedings (such as in subclause 66(2), subclause 68(1) and clause 73 of the Bill). 'Appear' contemplates participating in a proceeding in person or virtually. Paragraph 36(1)(f) also provides that the President may make practice directions relating to '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'. The provisions in the Bill that allow for virtual participation in proceedings, promote the right to a fair hearing and the right to an effective remedy by allowing the Tribunal to use technology to respond flexibly to the needs of its users. This may include circumstances where users of the Tribunal are unable to travel to the Tribunal, or in sensitive circumstances where attending in person is unsafe or may traumatise a person. The provisions ensure that in such circumstances, access to the Tribunal is not denied, and thus the right to a fair hearing and the right to an effective remedy are promoted. Frivolous and vexatious applicants 62. Paragraph 101(1)(a) of the Bill engages with the right to a fair hearing and the right to an effective remedy by allowing the Tribunal to dismiss an application made to the Tribunal if the Tribunal is satisfied that the application is frivolous, vexatious, misconceived or lacking in substance. If the Tribunal dismisses an application for being frivolous, vexatious, misconceived or lacking in substance, the Tribunal may, on application by a party to the proceeding or on its own initiative, order that the applicant, must not, without the leave of the Tribunal, make a subsequent application to the Tribunal of a specified kind. 63. This paragraph promotes the right to a fair hearing and the right to an effective remedy by ensuring the Tribunal is not misused for an improper purpose. However, the provision may also be viewed as limiting the use of the Tribunal by those applicants subject to the order. In circumstances where an applicant is limited to their right to a fair hearing and their right to an effective remedy, the legitimate objective of the power to dismiss an application and make an order that the applicant must not make a subsequent application to the Tribunal is to prevent the abuse of process, or the use of the Tribunal to annoy, harass, cause delay or detriment, or for another wrongful purpose. Safeguards include that an application dismissed under this power may be reinstated (clause 102) and that the applicant may appeal to the FCA from the decision to dismiss the application (clause 172). 64. This paragraph is reasonable and necessary to protect the integrity of the Tribunal system, to protect parties who may be adversely affected by frivolous or vexatious applicants and accordingly improve access to justice for genuine parties, and ensure that Tribunal resources are allocated usefully and efficiently. This paragraph replicates the AAT's current power in paragraph 42B(1)(a) of the AAT Act. Therefore, to the extent that the provisions relating to orders for frivolous and vexatious proceedings can be considered a limitation on articles 2(3) and 14 of the ICCPR, the limitation is permissible. 11

Non-publication and disclosure of information orders and circumstances in which proceedings may not be public 65. Clauses 69 to 71 engage with the right to a fair and public hearing, and the right to an effective remedy. Clause 69 provides that hearings of a proceeding in the Tribunal must be in public unless the Tribunal makes a practice direction or orders that a hearing of a proceeding be conducted in private. The Tribunal may also in practice directions or by order provide that only specific people are allowed to be present during the hearing. Clause 70 provides the Tribunal with the power to restrict the publication or disclosure of information that could reveal the identity of a party, witness or their associates and restrict the publication or disclosure of information relating to a proceeding. The factors that the Tribunal must consider in clause 71 when making an order under clause 69 and 70 include requiring that the Tribunal consider the circumstances of the parties to the proceeding and the harm that is likely to occur to a person if the order is not made. In addition, subsection 158(2) also provides that the Tribunal must also have regard to the necessity of avoiding the disclosure of national security information and, 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. 66. These provisions engage with the right to a public hearing by empowering the Tribunal to restrict the public's access to a hearing and information available during a hearing. By restricting attendance at a hearing or the publication or disclosure of information relating to a proceeding, these clauses also promote the right to a fair hearing and the right to an effective remedy. They ensure that applicants who are concerned about the public release of their personal information are not deterred from seeking a remedy through an application for review. They further ensure that proceedings involving information relating to national security or intelligence are able to be reviewed, by ensuring fair and independent review of such decisions while protecting this information. 67. Clause 69 and 70 are proportionate to the legitimate objective as clause 71 requires that the Tribunal weigh up the competing interests of open justice and the particular circumstances of the parties and other people involved in the proceeding and the harm that could occur to a person participating in the proceeding if an order or practice direction is not made. In these circumstances, the order may be necessary to promote the right to privacy in Article 17 of the ICCPR and individual safety. 68. Orders can be appealed to the FCA, which allows a relevant party with sufficient interest to apply to the court to consider the appropriateness and scope of the order. These measures ensure that the limitation on articles 2(3) and 14 of the ICCPR is reasonable, necessary and proportionate. Therefore, to the extent that the provisions relating to private hearings and restricting the publication or disclosure of information can be considered a limitation on articles 2(3) and 14 of the ICCPR, the limitation is permissible. Case management provisions 69. Paragraph 36(1)(j) of the Bill provides that the President may make practice directions in relation to the sorting, prioritisation, allocation and treatment of applications for review and related matters. This provision promotes the right to a fair and public hearing and the right to an effective remedy by empowering the President to make practice directions that apply across Tribunal proceedings. The practice directions 12

may facilitate the quick allocation of applications for review to Tribunal members and create a triaging system for the early resolution of the most urgent applications. The Bill includes a full set of powers and procedures to conduct a review that can be applied flexibly across all matters (Divisions 5 and 6 of Part 4). The President may make a practice direction under paragraph 36(1)(j) that relates to the appropriate use of this broad suite of powers and procedures to resolve disputes between parties. The operation of these provisions in the Bill will provide all applicants with a quicker and more effective dispute resolution mechanism. This will increase access to justice and promote the right to a fair and public hearing and the right to an effective remedy. Guidance and appeals panel 70. The Bill establishes the guidance and appeals panel within the Tribunal (Part 5). The guidance and appeals panel will give parties the opportunity to seek leave to appeal a decision that contains an error of fact or law. 71. By giving parties the opportunity to appeal a decision of the Tribunal that contains an error of fact or law, the guidance and appeals panel will promote the right to a fair hearing and the right to an effective remedy. 72. Clause 155 provides that the guidance and appeals panel does not apply in relation to an intelligence and security decision. This clause engages the right to a fair hearing and the right to an effective remedy. The purpose of clause 155 is to ensure that the review mechanism for intelligence and security related decisions is appropriate. It is reasonable, necessary and proportionate to exclude the intelligence and security jurisdictional area from the operation of the guidance and appeals panel for several reasons. First, all proceedings for review of decisions in the intelligence and security jurisdictional area are constituted by (at least) a Deputy President. This membership level is equivalent to the membership level if the guidance and appeal panels was considering an 'issue of significance'. Given the seniority of the constitution for the original matter in the Intelligence and Security jurisdictional area, constitution of the guidance and appeals panel at a more senior level to review a decision would be extremely limited. 73. Second, decisions of the Tribunal in these proceedings are highly unlikely to bear upon broader decision-making of the Tribunal outside the intelligence and security jurisdictional area, given the unique and sensitive nature of the information involved. Tribunal decisions in proceedings for review of intelligence and security decisions may be considered and applied by members in subsequent proceedings in the intelligence and security jurisdictional area as a matter of course. 74. For the reasons stated above, the limitation on articles 2(3) and 14 of the ICCPR is reasonable, necessary and proportionate. Therefore, to the extent that the provisions relating to private hearings and restricting the publication or disclosure of information can be considered a limitation on articles 2(3) and 14 of the ICCPR, the limitation is permissible. The right to freedom from arbitrary and unlawful interferences with privacy in Article 17 of the ICCPR 75. Article 17 of the ICCPR ensures that any interference with an individual's privacy, including their family, home and correspondence, must not be unlawful or arbitrary. Every person also has the right to legal protection against any interference or attacks on their privacy. The Human Rights Committee has interpreted the right to privacy as 13

comprising freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy. 76. This Bill promotes the right to privacy under the ICCPR by providing the Tribunal with the power to make practice directions or order that a hearing or part of the hearing take place in private (clause 69). The Tribunal may also limit the persons who may be present at a hearing and restrict the publication or disclosure of information relating to a proceeding or information that could reveal the identity of a party, witness or their associate (clause 69 and 70). By limiting the public dissemination of certain sensitive information in Tribunal proceedings or later through publication, the Bill protects against the arbitrary interference in a person's private proceedings. Therefore, the right in Article 17 of the ICCPR is promoted through clauses 69 and 70. The right of equality and non-discrimination in Articles 2 and 26 of the ICCPR 77. Article 26 of the ICCPR provides that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. Article 2 provides that all persons are entitled to the rights recognised within the Covenant, without distinction of any kind. 78. This Bill promotes the rights to equality and non-discrimination in Articles 2 and 26 of the ICCPR by providing that the Tribunal must be accessible and responsive to the diverse needs of its users, and provides a mechanism of review that is quick, informal and inexpensive. Most relevantly, the Bill includes the following: • In Part 2, the objectives of the Tribunal include to provide an independent mechanism of review that is; fair and just, 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 is accessible and responsive to the diverse needs of parties to proceedings (clause 9). • In Part 1, the Bill includes a definition of the term 'accessible' in relation to the Tribunal, which means 'enables persons to apply to the Tribunal and to participate effectively in proceedings' (clause 4). The note to the definition includes examples of areas where arrangements may be made to support accessibility, including: premises, facilities and technology; ease of locating and understanding information about the Tribunal and documents relating to proceedings; and adjustments, such as interpretation services, that can reasonably be made to accommodate a person's needs. • In Part 4, the President (in paragraph 36(1)(k)) is vested with power to make practice directions in relation to the accessibility of the Tribunal and the responsiveness of the Tribunal to the diverse needs of parties to the proceedings. This paragraph has been included so that the President has the power to ensure that the operations of the Tribunal are, as far as possible, responsive to the needs of parties, allowing them to fully participate and understand proceedings in the Tribunal. • A general principle that the Tribunal must conduct each proceeding in a way that is accessible for the parties to the proceeding, taking into account the needs of the parties (clause 51). • A general principle that the Tribunal is to act with as little formality and technicality as proper consideration of the matters before the Tribunal permits 14

(clause 50). This clause reinforces the fact that the Tribunal is not a court, and so should not act--or require parties, representatives, witness et cetera--to act with the level of formality required during court proceedings. • A general principle that the rules of evidence do not bind the Tribunal, and the Tribunal may inform itself on any matter in such manner as it considers appropriate (clause 52). This clause replicates the effect of paragraph 33(1)(c) of the AAT Act and reflects the fact that the Tribunal is not a court, and is therefore not constrained like courts by strict rules about standards of proof or the admissibility of evidence. • Clause 67 which empowers the Tribunal to appoint a litigation guardian for a party to a proceeding where a person lacks the capacity to understand, conduct, or give adequate instruction for the conduct of the proceedings. A litigation guardian would stand in the place of the party, and make all the decisions about the conduct of the proceedings that would have been made by the party. The clause includes safeguards to ensure that the agency, will and preferences of the party are respected and a litigation guardian is not appointed if other measures can be put in place to support their effective participation in the proceeding. • Clause 68 which empowers the Tribunal to appoint an interpreter for a proceeding. • Paragraph 193(h) provides that one of the President's functions is to promote the training, education and professional development of members. The training may include, for example, training members in effective decision making with respect to people with disability, cross-cultural communication, working with interpreters, or trauma-informed practice. • Division 3 of Part 8 of the Bill requires members of the Tribunal to be rated suitable through a publicly advertised, merit-based process. The definition of 'merit-based' includes taking account of the need for a diversity of skills, expertise, lived experience and knowledge within the Tribunal. 79. These provisions empower and allow the Tribunal to adapt its procedure and offer a range of supports to ensure that all persons seeking review can participate in proceedings, and therefore exercise the rights engaged and promoted by this Bill. This includes persons from culturally and linguistically diverse backgrounds, migrants, persons with a disability, persons of any age, gender, sex or religion, First Nations Australians and those who cannot afford to engage representation or participate in court processes. The right of access to justice for people with disability in Article 13 of the Convention on the Rights of Persons with Disabilities (CRPD) 80. Article 13 of the CRPD places an obligation on the government to 'ensure effective access to justice for persons with disabilities on an equal basis with others', including facilitating their effective role in all legal proceedings. To support this right, the government also has a duty to promote appropriate training for any person working in the administration of justice. 81. The Bill promotes the right of access to justice for people with disability. Many users of the Tribunal will be persons with disabilities since the Tribunal will have jurisdiction to review National Disability Insurance Scheme (NDIS) decisions, 15

disability support pension, workers compensation and veterans' appeal decisions, amongst other categories of decisions particularly affecting persons with disabilities. 82. The provisions listed above, that promote the right to equality and non-discrimination, also promote the right to effective access to justice for persons with a disability. 83. The Bill establishes a Tribunal that is flexible, informal and accessible, has the power to appoint practitioners to assist people with disability and expressly empowers the President to make practice directions in relation to the accessibility of the Tribunal and the responsiveness of the Tribunal to the diverse needs of parties to the proceedings, such as people with disability. These provisions empower the Tribunal to adapt to the differing needs of persons with disabilities and as a result, promote their right of access to justice. The right to freedom of opinion and expression in Article 19 of the ICCPR 84. Article 19(2) of the ICCPR provides that everyone has a right to freedom of opinion and expression, including the freedom to seek, receive and impart information. The Bill engages the rights under Article 19 of the ICCPR tangentially in relation to the regulation of access to and disclosure of information. 85. The Tribunal will have jurisdiction to review decisions relating to Freedom of Information (FOI). It will provide an avenue for reconsideration of administrative decisions to refuse access to material under FOI legislation. This role of the Tribunal promotes the right to freedom of opinion and expression. 86. Clause 70 empowers the Tribunal to restrict the publication or disclosure of information relating to a proceeding or information that could reveal the identity of a party, witness or their associate. Clause 119 makes it an offence if a person engages in conduct that contravenes an order under clause 70. These clauses limit the right to freedom of opinion and expression. However, this limitation has a legitimate objective of facilitating access to the Tribunal. This is on the basis that the publication or disclosure of certain information may cause a person distress, harm or embarrassment and therefore discourage their participation in a Tribunal proceeding. The limitation on the right in clause 70 is reasonable and necessary as it encourages access to the Tribunal by parties and also other persons who would otherwise be reluctant to participate in Tribunal proceedings. The clause is proportionate to the legitimate objective as clause 71 requires that the Tribunal weigh up the competing interests of open justice and the particular circumstances of the parties and other people involved in the proceeding and the harm that could occur to a person participating in the proceeding if an order or practice direction is not made. Orders can be appealed to the FCA, which allows a relevant party with sufficient interest to apply to the court to consider the appropriateness and scope of the order. 87. Clause 276 provides that an entrusted person commits an offence if they make a record of or disclose information that they obtained either in the course of performing or exercising their functions or powers as an entrusted person or because they are an entrusted person. An 'entrusted person' is a person who is or has been a member of the Tribunal, the Principal Registrar, a staff member or a person engaged to provide services to the Tribunal. This clause limits the right to freedom of opinion and expression by limiting an entrusted persons capacity to lawfully record or disclose information. However, this limitation has a legitimate objective of promoting open disclosure to the Tribunal. This clause is reasonable, necessary and proportionate because it promotes open disclosure to the Tribunal by providing reassurance to 16

persons involved in Tribunal proceedings that information disclosed will be appropriately protected. 88. Clause 158 provides an ability for the responsible Minister to issue a 'security certificate' in relation to evidence to be adduced by, or a submission to be made by, or on behalf of, certain people in a proceeding for review of an intelligence and security decision, other than in an exempt security record decision. These certificates can be made in relation to evidence or submissions of: • the agency head • a relevant body • an officer or employee of the agency head's agency • an officer or employee of a relevant body, or • a person connected with the agency or a relevant body. 89. Subclause 158(8) provides that the applicant's representative commits an offence if a certificate is in place, and they are present when relevant evidence is adduced or a submission made and the representative discloses the evidence or any information that was part of the submission to the applicant or to any other person. 90. Clause 158 limits the right to freedom of opinion and expression by making it an offence to reveal certain information. However, this limitation has a legitimate objective of promoting open disclosure to the Tribunal. This clause is reasonable, necessary and proportionate because it promotes open disclosure to the Tribunal by providing reassurance to persons involved in Tribunal proceedings that information disclosed will be appropriately protected. It also promotes legitimate objectives of public safety and national security. 91. These measures ensure that the limitation on articles 19(2) of the ICCPR is reasonable, necessary and proportionate. Therefore, to the extent that the provisions relating to restricting the publication or disclosure of information can be considered a limitation on Article 19(2) of the ICCPR, the limitation is permissible. The right to a presumption of innocence 92. Article 14(2) of the ICCPR provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. Clauses 116, 118 and 277 engage with the right. These offences promote the effective operation of the Tribunal. In doing so, they promote the right to a fair hearing and right to an effective remedy while engaging with the right to a presumption of innocence. 93. Subclause 116(1) of the Bill provides that a person commits an offence if a person summoned under clause 74 does not comply with the summons. The maximum penalty for committing this offence is six months imprisonment, or 30 penalty units, or both (subclause (1)). An exception applies if it is not reasonably practicable for the person to comply with the summons within the period specified in the notice (or any further time as the Tribunal allows). 94. Subclause 118(1) of the Bill provides that it is an offence to knowingly provide evidence that is false or misleading or omits any matter or thing which makes the evidence false or misleading. The maximum penalty for committing this offence is 12 months imprisonment, or 60 penalty units, or both (subclause (1)). An exception applies if the evidence is not false or misleading in a material particular. 17

95. Clause 276 provides that an entrusted person commits an offence if they make a record of or disclose information that they obtained either in the course of performing or exercising their functions or powers as an entrusted person or because they are an entrusted person. An exception applies if the disclosure was authorised under clause 277. 96. Clause 277 authorises entrusted persons to record or disclose information in appropriate circumstances, for example in the course of their duties. In authorising the use and disclosure of information, this clause operates as an exception to the offence in clause 276 that requires an entrusted person to keep information confidential. The circumstances in which an entrusted person may make a record or disclose information without committing an offence under clause 276 include: • where the recording or disclosure of information is done for purposes connected with the entrusted person performing or exercising their functions or powers under this Bill, another Act or an instrument made under an Act (subclause 277(1)) • where the disclosure is required or authorised under this Bill, another Act or an instrument made under an Act (subclause 277(2)) • where the entrusted person reasonably believes that disclosure is necessary to lessen or prevent a serious threat to the life, health or physical safety of any individual, or to public health or safety (subclause 277(3)) • where the information has already been lawfully made available to the public (subclause 277(4)) • where they are required to disclose information or produce a document to a court, tribunal, authority or person (including the parliament) that has the power to require them to do so (subclause 277(5)). However, they cannot do this if, under clause 274, they are exempted from having to provide protected information or documents to the relevant entity (subclause 277(6)). 97. The Bill limits the right to the presumption of innocence under Article 14(2) of the ICCPR because it places an evidential burden on defendants with respect to the exceptions in Clauses 116, 118(1) and 277. 98. The evidential burden on defendants in subclause 116(2) is for the legitimate objective of ensuring that the Tribunal can access relevant material to conduct merits review, unless it is not reasonable to require the material's production. It is reasonable, necessary and proportionate for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests that it was not reasonably practicable for them to comply with a requirement to produce information, documents or things within the required timeframe, because: • the reasons why it was not reasonably practicable for a person to comply with a requirement to produce or give information, documents or things are likely to be entirely within the knowledge of the person on whom the summons or requirement was served, and • it would be an onerous task for the prosecution to disprove the existence of all circumstances that would make it reasonably practicable for a defendant to comply with the notice, especially where these circumstances are peculiarly within the knowledge of the defendant. 18

99. The evidential burden on defendants in subclause 118(2) is for the legitimate objective of ensuring that the information available to the Tribunal is accurate. This enables the Tribunal to conduct effective merits review. It is reasonable, necessary and proportionate for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility the evidence was not false or misleading in a material particular given this information will be peculiarly within the knowledge of the defendant. 100. The evidential burden on the defendant in clause 277 is for the legitimate objective of ensuring that members, the Principal Registrar and staff of the Tribunal are able to effectively perform their role, which includes complying with relevant legal obligations. It is reasonable, necessary and proportionate for the defendant to bear the evidential burden of adducing or pointing to evidence in relation to each of the defences in clause 277 as the information is particularly within the knowledge of the defendant, for example, the purpose for which they recorded or disclosed the information. To rely on the defence, the person will only need to adduce or point to evidence suggesting a reasonable possibility that the information was recorded or disclosed for purposes connected with the exercise of the powers, or the performance of the functions, of that person under this Bill. Other rights 101. The Bill promotes other human rights, to the extent that subject specific cases are before the Tribunal and the decisions that the Tribunal will consider engage with these human rights. In particular, the Bill promotes: • the right to social security in Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) - for example, by providing access to a fair and independent mechanism of reviewing social security decisions, • the right of a child to express his or her opinion in Articles 3 and 12 of the Convention on the Rights of the Child (CRC) - for example, by providing for reviews of decisions affecting children, • the right to freedom from unlawful expulsion in Article 13 of the ICCPR - for example, by providing an independent mechanism of review of migration and refugee decisions. • the right to work and rights in work contained in Articles 6(1), 7 and 8(1)(a) of the ICESCR - for example, by providing an independent mechanism of review of workers' compensation matters, and • the right to health in Article 12(1) of the ICESCR - for example, by providing an independent mechanism of review of a range of entitlements, supports and compensation decisions relating to a person's health and wellbeing. Conclusion 102. The Bill is compatible with human rights. It advances the right to an effective remedy, a fair and public hearing, the right of equality and non-discrimination, the right of access to justice for persons with a disability and the right to freedom from arbitrary and unlawful interference with privacy, along with other rights that may be engaged and promoted in specific reviews. To the extent that the Bill limits any human rights, those limitations are reasonable, necessary and proportionate. 19

NOTES ON CLAUSES PART 1--PRELIMINARY 103. This Part contains a number of preliminary matters, including the commencement and general application of the Bill and the definitions. Clause 1: Short Title 104. This clause provides for the short title of the Act to be enacted by the Bill to be the Administrative Review Tribunal Act 2023. Clause 2: Commencement 105. This clause provides for the commencement of each provision in this Bill, as set out in the table at subclause 2(1). The table provides that the whole of this Bill commences on a single day to be fixed by Proclamation. 106. If the provisions do not commence within the period of 12 months beginning on the day the Bill receives the Royal Assent, they commence on the first day of the next calendar month following the end of that period. Standing up a new Tribunal following passage of legislation is a complex undertaking, requiring the appointment of new members, the development of practices and procedures, training of staff and communicating with Tribunal users about how the Tribunal will operate. A 12-month commencement period provides flexibility for these activities to occur following the passage of legislation. It is intended that the Tribunal commence operations as soon as practicable in 2024, subject to the passage of the legislation. 107. Subclause 2(2) specifies that information in column 3 of the table at subclause 2(1) is not a part of the Bill, and information may be inserted in this column, or information in it may be edited, in any published version of the Bill. Clause 3: Simplified outline of this Act 108. This clause provides a simplified outline of the Bill including the framework and processes for the Tribunal. 109. The simplified outline is included to assist readers to understand the substantive provisions of the Bill. The outline is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions of the Bill. Clause 4: Definitions 110. This clause defines a number of terms for the purposes of the Bill. 111. Accessible, in relation to the Tribunal, means enable persons to apply and participate effectively in all stages of the Tribunal process. This includes Tribunal case events (such as dispute resolution processes), and proceedings generally (including guidance and appeal proceedings). Recognising that 'accessible' is part of the Tribunal's objective (see clause 9(c)), this definition is intended to clarify that objective and the obligation that it places on the Tribunal. The Tribunal is required to conduct proceedings, as far as practicable, in a way that is accessible to the parties, taking into account their needs (see clause 51). 112. The term 'accessible' refers to persons generally, and does not only refer to a person with a disability. For example, this could also include, but is not limited to, people 20

from culturally and linguistically diverse backgrounds who may need an interpreter to meaningfully participate in a proceeding. The note to this definition provides examples of areas where arrangements may be made to make the Tribunal process more accessible. This is a non-exhaustive list and is intended to help readers understand the types of arrangements or adjustments that the Tribunal may implement to aid accessibility where practicable. These types of arrangements may include changes to the physical environment of the Tribunal or making sure information is easy and clear for people to understand. 113. Adduce in relation to evidence, includes give. This means that for a person to put evidence before they Tribunal, they may simply give it to the Tribunal, including orally. This replicates the definition in section 3 of the AAT Act. 114. The term 'administrative affairs' in the Bill has a meaning affected by subclause 224(2). Subclause 224(1) provides that the President is responsible for managing the administrative affairs of the Tribunal. Subclause 224(2) provides that 'administrative affairs' do not include corporate and registry services (see definition below). The term 'administrative affairs' relates to the President's management function of the Tribunal and is broader than the President's responsibility in relation to the 'business of the Tribunal', which relates to the conduct of reviews. 115. Australian Federal Police Commissioner means the Commissioner of Police appointed under the Australian Federal Police Act 1979. The AFP Commissioner is the head of the Australian Federal Police. This term is used in Part 6--Proceedings in Intelligence and Security jurisdictional area. 116. Agency head is used in Part 6--Proceedings in Intelligence and Security jurisdictional area to capture the following people for the purpose of fulfilling certain obligations in relation to proceedings about certain decisions or assessments: • Chief Executive Officer of the Australian Crime Commission for criminal intelligence assessments • the principal officer of an agency, or the relevant Minister, to who the request for access to documents under the FOI Act was made, for exempt security record decisions relating to the FOI Act • Director-General of the National Archives of Australia, for exempt security record decisions relating to the Archives Act • Treasurer, for foreign acquisitions and take over decisions • Australian Federal Police Commissioner for preventative detention decisions • Director-General of Security for security assessments, security clearance decisions, and security clearance suitability assessments. 117. Agency within the national intelligence community has the same meaning as in the Office of National Intelligence Act 2018. This term is used in Part 6--Proceedings in Intelligence and Security jurisdictional area. 118. Where the Bill uses the term 'appear' in relation to a Tribunal case event (see definitions for a Tribunal case event), it is intended that the meaning provided for in clause 73 applies. In general, a party can appear at a Tribunal case event themselves or through a representative. However, the Tribunal can order a party, other than the decision-maker, to appear personally, whether or not their representative also appears. This includes attending a Tribunal case event both in person and virtually and is 21

intended to be technology neutral. In other contexts, the term should be read and understood according to its ordinary meaning. 119. Appointed member is a member of Council as defined by paragraph 247(1)(d). This term is used in Part 9 of the Bill, and is intended to differentiate between Council members who are ex officio members of the Council (the President of the ART, the Commonwealth Ombudsman and the Australian Information Commissioner) and Council members who are appointed by the Governor-General. 120. ASIO means the Australian Security Intelligence Organisation. 121. ASIO Act means the Australian Security Intelligence Organisation Act 1979. 122. ASIO Minister means the Minister administering the Australian Security Intelligence Organisation Act 1979. 123. An authorised person is a person who the President has authorised in writing to perform a function or exercise a power of the Tribunal in accordance with Subdivision B of Division 4 of Part 11. A member, the Principal Registrar, a registrar or staff of the Tribunal can be authorised by the President to be an authorised person. This combines the concepts of officer of the Tribunal, authorised officer and authorised member defined in sections 24PA, 59A and 59B of the AAT Act to simplify the operation of the Bill. It also enables the President to authorise a wider cohort of persons to exercise and perform the functions and powers of the Tribunal, to give it greater flexibility in conducting and finalising proceedings efficiently. 124. Code of conduct refers to the instrument that the President is required to create by clause 201 which will set out the conduct expectations of non-judicial members. 125. Commonwealth entity has the same meaning as in the PGPA Act. This includes a Department of State, a Parliamentary Department, a listed entity, a body corporate established by a law of the Commonwealth or established under a law of the Commonwealth and prescribed by an Act or the rules to be a Commonwealth entity. The High Court and the Future Fund Board of Guardians are not Commonwealth entities. 126. Corporate and registry services of the Tribunal are listed in subclause 226(2), and explained in that part of the Explanatory Memorandum. 127. Council means the Administrative Review Council. See Part 9 of the Bill regarding the establishment and operation of the Council. 128. Council member is any member, including the chair, of the Administrative Review Council. 129. Criminal intelligence assessment means an adverse criminal intelligence assessment within the meaning of Division 2A of Part II of the ACC Act. These decisions are reviewed in the Intelligence and Security jurisdictional area. 130. The definition of 'decision' is replicated from subsection 3(3) of the AAT Act, and is intended to have the same meaning. It includes a range of things, including: • making, suspending, revoking or refusing to make an order or determination • giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission • issuing, suspending, revoking or refusing to issue a licence, authority or other instrument 22

• imposing a condition or restriction • making a declaration, demand or requirement • retaining, or refusing to deliver up, an article • doing or refusing to do any other act or thing. 131. This definition is intended to be broad and the list of things in paragraphs (a), (b), (c), (d), (e), (f) and (g) is inclusive rather than exhaustive. However, not all decisions made by decision-makers are 'reviewable decisions' (see clause 12). 132. Decision-maker is defined by clause 14. It is defined as the person who makes a decision. 133. Deputy President is a person who is appointed as either Judicial Deputy President or a Non-Judicial Deputy President. They are the most senior members of the Tribunal beneath the President, with functions set out in clause 194. 134. Dispute resolution process means a method or Tribunal service, conducted by a Tribunal member, registrar or other person engaged by the Tribunal, aimed at the voluntary resolution of disputes. It includes: • conferencing, a process conducted for the purpose of defining the issues in a matter, identifying what further evidence may be gathered, exploring whether an agreed outcome may be reached and/or discussing the future conduct of the matter, • mediation, a process during which the Tribunal mediator assists the parties to identify the issues in dispute and to develop options and consider alternatives in attempting to resolve the matter • neutral evaluation, a process during which the Tribunal evaluator assists the parties to resolve the matter by evaluating the facts and law at issue in the dispute and providing a non-binding opinion on the likely outcome(s) • conciliation, a process during which the Tribunal conciliator assists the parties to identify the issues in dispute and to reach an agreed outcome, including by suggesting terms of settlement and actively encouraging the parties to reach an agreement, or • a procedure or service specified in the practice directions (see clause 36). 135. Dispute resolution processes do not include: • arbitration, a formal process before an arbitrator who hears the parties and makes a decision based on this information, or • court procedures or services. 136. This definition replicates the definition of alternative dispute resolution process in section 3 of the AAT Act, but omits from that definition 'case appraisal'. This is because a case appraisal and a neutral evaluation are substantively the same process. 137. Election notice is defined by subclause 60(1). It is a notice provided by a decision-maker specifying the kinds of proceedings that they will not participate in, unless ordered otherwise by the Tribunal, or unless they elect to participate in a particular proceeding and the Tribunal allows it. 23

138. Engage in conduct means both to do, or fail to do, an act. This definition mirrors the definition in the Criminal Code. 139. Entrusted person means a Tribunal member, the Principal Registrar, Tribunal staff members, or any person engaged to provide services to the Tribunal. This is consistent with the definition in subsection 66(4) of the AAT Act. This is used in the provisions in Division 2 of Part 11 of the Bill relating to the confidentiality of information given to the Tribunal. 140. Exempt security record decision means the following decisions: • decisions under the FOI Act that may be appealed to the Tribunal regarding access to documents which have been claimed to be exempt from disclosure on the basis that their release could cause damage to national security, defence or international relations (exemption under section 33 of the FOI Act) • a decision of the National Archives of Australia regarding access to an exempt record under the Archives Act 1983 as prescribed in paragraph 33(1)(a) (disclosure could cause damage to national security, defence or international relations) or paragraph 33(1)(b) (information that was communicated by a foreign government), or a record of ASIO. 141. Federal Court means the Federal Court of Australia. 142. 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. 143. General member means a person appointed by the Governor-General as a general member of the Tribunal under clause 208. General members have the functions provided in clause 195. 144. Guidance and appeals panel means where the Tribunal is constituted for the purposes of a proceeding in accordance with Subdivision C of Division 4 of Part 4. The guidance and appeals panel is a new feature of the Tribunal, and provides a mechanism to consider issues of significance to administrative decision-making, or a Tribunal decision that may contain an error of fact or law materially affecting the decision. Further explanation of the guidance and appeals panel can be found at Part 5. 145. Guidance and appeals panel application is an application that is taken to have been made when the President decides, on application by a party to a review that has been completed, to refer the Tribunal's decision in that review to the guidance and appeals panel, as per subclause 130(2). This term is used in the Bill to apply provisions that require an application to have been made, or that rely on the existence of a proceeding (commenced by an application) to a matter in the guidance and appeals panel. 146. Guidance and appeals panel proceeding is a proceeding that is being heard by the guidance and appeals panel because the application is a guidance and appeals panel application, or an application for review of a decision was referred to the guidance and appeals panel by the President. 147. Hearing of a proceeding is the substantive hearing of the matter before the Tribunal. Where this term is used, it does not include directions hearings, as these matters are procedural in nature. 24

148. Intelligence and security decision means the following assessments or decisions: • a criminal intelligence assessment • an exempt security record decision • a foreign acquisition and take overs decision • a preventative detention decision • a security assessment • a security clearance, and • a security clearance suitability assessment 149. Proceedings in relation to the above matters are dealt with in the Intelligence and Security jurisdictional area of the Tribunal. 150. Judge means a Judge of a court created by the Parliament. 151. Judicial Deputy President is a Judge of the FCA or FCFCOA (Division 1) who has been appointed a Judicial Deputy President under clause 206. Subclause 194(1) outlines the functions of Judicial Deputy Presidents. 152. Jurisdictional area is defined by subclause 196(1). It refers to the organisational structure of the Tribunal and the way in which matters are grouped by similar process or subject matter. 153. Jurisdictional area leader is the head of a jurisdictional area of the Tribunal. Jurisdictional area leaders must be salaried Non-Judicial Deputy Presidents and have the functions conferred on them by clause 197. 154. Law enforcement interests has the same meaning as section 36A in Division 2A of Part II of the ACC Act. This term is used in Part 6--Proceedings in Intelligence and Security jurisdictional area. 155. 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. This term is used to refer to the qualifications of individuals to be eligible for appointment to the Tribunal (clauses 207 and 208), and in relation to immunities and protections for legal representatives (clauses 204 and 293). 156. List is a subarea within a jurisdictional area of the Tribunal. The President has the authority to establish and abolish lists as prescribed by subclause 196(2). 157. Litigation guardian is a person appointed by the Tribunal to act on behalf of a party during a proceeding of the Tribunal as prescribed by clause 67. Litigation guardians can only be appointed in limited circumstances and stands in the place of the party. Litigation guardians must give effect to the will and preferences of the party or, if this cannot be ascertained, act in a manner that promotes the personal and social wellbeing of the party. 158. An instrument is made under an Act if it is created under an Act or under a provision of another legal instrument created by an Act. The term is used throughout the Bill. 159. Member is any person who is the President, Deputy President, a senior member or general member of the Tribunal. 160. Merit-based refers to a quality of the assessment process used for appointments to the Tribunal. The merit-based process in the context of appointments is discussed in Division 3 of Part 8. To be merit-based, an assessment must: 25

• assess the comparative suitability of various candidates for the duties of the relevant office, which includes a competitive selection process • analyse whether the candidates' skills, expertise, experience and knowledge match the skills, expertise, experience and knowledge required to effectively fulfil the duties of the office, and • consider the importance of the Tribunal having a diverse range of skills, expertise, lived experience and knowledge. This could include, for example, whether those holding office in the Tribunal reflect the diversity of the Australian community. 161. The inclusion of this definition ensures that the people appointed to the Tribunal are of a high calibre and suited to making decisions and performing the functions of the office that they are appointed to. 162. National security information has the same meaning as in section 7 of the National Security Information (Criminal and Civil Proceedings) Act 2004. It means information that relates to national security or the disclosure of which may affect national security. Proceedings involving national security information may be considered in the Intelligence and Security jurisdictional area. 163. Non-Judicial Deputy President is a person that is appointed as a Deputy President of the Tribunal and who is not a Judge. Subclause 194(2) outlines the functions of Non-Judicial Deputy Presidents. 164. Non-judicial member is a person who is a member of the Tribunal and is not a Judge. 165. Non-participating party is defined by clause 61. This refers to a decision-maker who has given the Tribunal an election notice in relation to a kind of proceeding and is not otherwise participating in a proceeding. This term is used to clarify how various provisions in Part 4 relating to the procedures and powers of the Tribunal apply to a non-participating party. 166. Norfolk Island enactment is an enactment under section 4 of the NI Act (being an Ordinance made by the Governor-General in relation to Norfolk Island, an Ordinance continued in force by the NI Act, or a Norfolk Island Legislative Assembly law continued in force by the NI Act). A Norfolk Island enactment also includes any instrument made under one of the enactments outlined above, and amendments of the above. This definition is replicated from section 3 of the AAT Act. 167. Official has the same meaning as in section 13 of the PGPA Act. This includes a person who is in, or forms part of, the Tribunal, the accountable authority, a person who is an officer, employee or member of the entity, and other persons (including classes) who are prescribed to be an official. 168. 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. This term is used in Part 8 of the Bill relating to other paid work undertaken by Tribunal members and the Principal Registrar. 169. Parliament means the Parliament of the Commonwealth, or a parliament of an Australian state or territory. This includes any committees established by these parliaments. 170. Participation notice is defined by clause 62 and refers to a written notice given to the Tribunal that a non-participating party wishes to participate in a proceeding. 26

171. Performance standard is the instrument that the President is required to create by clause 202 which will set out the performance expectations for non-judicial members. 172. Person whose interests as affected by a decision has a meaning affected by clause 15, which provides for when an organisation or association are taken to be a person whose interests are affected by a decision. Otherwise, the term should be interpreted in accordance with the case law. 173. Practice directions are made by the President (see clause 36). The President may make practice directions in relation to a number of things, including the operations and procedures of the Tribunal, the conduct of proceedings by the Tribunal, the arrangement of the business of the Tribunal and the places where the Tribunal may sit. 174. President is a judge of the FCA that has been appointed as the President of the Tribunal in accordance with clause 205. The President's functions are contained at clauses 193 and 224. 175. Presiding member is the member who the President directs will preside at a Tribunal case event where the Tribunal is constituted by more than one member (see subclause 37(2)). 176. Preventative detention decision is a decision that is made under section 105.8 or 105.12 of the Criminal Code to make a preventative detention order, or to extend the period of a preventative detention order under section 105.10 or 105.15 of the Criminal Code. 177. Principal Registrar is a person who has been appointed as the CEO and Principal Registrar of the Tribunal under clause 227. The Principal Registrar's functions are contained at clause 226. 178. A proceeding includes a proceeding in relation to any of the following: • an application for review of a reviewable decision • an application to obtain reasons for a reviewable decision or an adequate statement of reasons for a reviewable decision • any other application to the Tribunal under this Bill, any other Act or any instrument made under an Act • any matter referred to the Tribunal for inquiry or review under this Bill or an instrument made under this Bill or any other Act or instrument made under an Act • an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application of the kinds listed above. 179. This substantially replicates the definition of proceeding in the AAT Act however it simplifies it by combining former paragraphs (d) and (e) of the AAT Act definition into paragraph (d) of the new definition. The change does not affect the meaning. The new definition also does not replicate paragraph (c) of the AAT Act definition, as the Bill no longer provides for an application to be made for review of a taxation of costs. 180. Produce includes permit access to. This means that when a person produces a document under summons, they can both give documents to the Tribunal, or permit them to have access, for example, via a password protected website. 181. Protected document is defined by subclause 274(3). It refers to a document that concerns another person and was obtained by an entrusted person in the performance 27

or exercise of the person's functions and powers under this Bill, another Act, or an instrument made under an Act. Clause 274 relates to when an entrusted person can and cannot be required to produce or disclose such documents. 182. Protected information is defined by subclause 274(4). It refers to information that concerns another person and was obtained by an entrusted person in the performance or exercise of the person's functions and powers under this Bill, another Act, or an instrument made under an Act. Clause 274 relates to when an entrusted person can and cannot be required to produce or disclose such documents. 183. Reconstitute the Tribunal means the revoking of a direction to constitute the Tribunal made under subclause 37(1) in relation to a proceeding, and the making of a subsequent direction that the Tribunal will be constituted by a different member or members. 184. Registrar is a staff member of the Tribunal who has been appointed by the Principal Registrar under clause 237. A registrar must be appropriately qualified in accordance with clause 237 and is able to perform or exercise some powers or functions of the Tribunal if authorised by the President under clause 285. 185. Relevant body refers to certain entities and agencies for the purposes of proceedings in the Intelligence and Security jurisdictional area that have an important role in relation to specific decisions and assessments. These include, but are not limited to, security, criminal intelligence, foreign acquisitions and preventative decisions (see subclause 137(2)). 186. Responsible Minister is used in provisions in Part 6--Proceedings in the Intelligence and Security jurisdictional area, including in relation to the certification of certain information. The responsible minister is the Minister, or any of the Ministers, administering the provision under which the reviewable decision is made. 187. Reviewable decision is defined by clause 12. A decision is a reviewable decision if an Act or a legislative instrument provides that an application can be made to the Tribunal for review of that decision. 188. Review pathway is defined by subclause 266(3). It refers to decisions that are, or could become, reviewable by the Tribunal. That is, a reviewable decision and any decision which on review or further review would become a reviewable decision. The decision-maker must take reasonable steps to give notice of such a decision, including of any right to have the decision reviewed. 189. Rules are made under clause 295, which allows the Minister to make rules prescribing matters that are required or permitted to be prescribed by the rules, or necessary or convenient for carrying out or giving effect to the Bill. Rules are legislative instruments and are disallowable by the Parliament. 190. Salaried member is a member who is appointed on a salaried basis. A salaried member has regular patterns of work and is paid a salary, either on a full-time basis or part-time basis with their salary prorated in accordance with hours worked. 191. Security assessment is an adverse security assessment or qualified security assessment within the meaning of Part IV of the ASIO Act. This definition has been replicated from the AAT Act. 192. Security clearance decision has the same meaning as in section 4 of the ASIO Act. This includes a decision to grant or deny a security clearance or impose, vary or 28

remove conditions on a security clearance or suspend or revoke a suspension of a security clearance or revoke a security clearance. This definition has been replicated from the AAT Act. 193. Security clearance suitability assessment has the meaning as in section 4 of the ASIO Act. This means a statement furnished by ASIO and is about a person's suitability to hold a security clearance that has been, or may be, granted by another security vetting agency and expressly states that it is a security clearance suitability assessment. This definition has been replicated from the AAT Act. 194. Security vetting agency has the same meaning as in Part IVA of the ASIO Act. It includes an authority of the Commonwealth, a State or an authority of a State, whose functions or activities include making security clearance decisions. This definition has been replicated from the AAT Act. 195. Senior member means a person appointed by the Governor-General as a senior member of the Tribunal under clause 208. Subclause 195(1) outlines the functions of a senior member. 196. Serious misconduct includes conduct that would amount to unlawful discrimination within the meaning of the AHRC Act (see section 3 of that Act) which includes acts, omissions or practices that are unlawful under a range of Acts within the human rights legislation framework. Serious misconduct also includes serious or repeated bullying or harassment of a person, or any related behaviour. If a member (other than a member who is a Judge) or the Principal Registrar engages in serious misconduct, their appointment may be terminated by the Governor-General. This definition is non-exhaustive. 197. Sessional member means a member who is appointed on a sessional basis. A sessional member is called upon as needed or available and does not have a regular weekly work pattern. Sessional members are paid a daily rate. 198. Sponsoring agency has the same meaning as in Part IVA of the ASIO Act. It is defined as the Commonwealth agency, State or authority of a State that sponsors a security clearance or would sponsor the security clearance if it were granted. This definition has been replicated from the AAT Act. A sponsoring agency is a relevant body for the purposes of Part 6--Proceedings in the Intelligence and Security jurisdictional area. 199. Staff member is a member of staff of the Tribunal or a person whose services are made available to the Principal Registrar under clause 239. These may be an APS employee or officer of the Supreme Court of Norfolk Island. 200. Statement of reasons means a written statement about a decision that: • sets out the finding on material questions of fact • refers to the material (including evidence) on which those findings are based, and • explains the reasons for the decision. 201. A statement of reasons might refer to the written statement provided by the decision-maker about their decision, or provided by the Tribunal about a Tribunal decision on review. This definition is drawn from subsection 28(1) of the AAT Act, which provides that a person can request a statement of reasons for a decision and describes what should be included in a statement of reasons. The definition in the Bill alters the definition to require that the decision-maker explains, rather than only give, 29

reasons for the decision. This is to ensure that decision-makers provide a statement of reasons to a person that clearly sets out the basis for of the decision, in a way that allows a person to understand why the decision was made. 202. State or Territory government entity means any state or territory government department, or a body, whether incorporated or not, established by state or territory for a public purpose, or a body established by state or territory law. 203. Tribunal means the Administrative Review Tribunal as established by clause 8. This definition simplifies the definition of 'Tribunal' in the AAT Act which also refers to the Tribunal as constituted for the purposes of a proceeding and a member or an officer of the Tribunal exercising powers of the Tribunal. These additional concepts are now dealt with through Division 4 of Part 11 of the Bill where, in addition to the Tribunal as constituted for the purposes of a proceeding, members, registrars and staff can be authorised to perform the functions or exercise the powers of the Tribunal. 204. Tribunal Advisory Committee means the Tribunal Advisory Committee established by clause 236. This is a new Committee within the Tribunal that is intended to strengthen the leadership in the Tribunal. It includes the President, jurisdictional area leaders, the Principal Registrar and any other members or staff members nominated in writing by the President. Its functions include, but are not limited to, promoting the Tribunal's objective, reviewing the performance of the Tribunal and providing advice to the President and Principal Registrar in relation to a range of functions. 205. Tribunal case event is any type of event at which parties are required to appear before the Tribunal in a proceeding, including a substantive hearing, a directions hearing, or a dispute resolution process referred to in Division 6 of Part 4 of this Bill. 206. Tribunal guidance decision is a decision defined by subclause 109(1). It refers to a decision made by the Tribunal constituted as the guidance and appeals panel in a proceeding where the President was satisfied the application raised an issue of significance to administrative decision-making that has not been excluded as a Tribunal guidance decision by the President. The Tribunal must have regard to Tribunal guidance decisions in proceedings raising similar facts and issues (see clause 110). Tribunal guidance decisions are intended to provide internal guidance to the Tribunal and have a normative effect on the decision-making of the Tribunal, and administrative decision-making more broadly. Clause 5: Other Acts can change how some provisions in this Act apply 207. This clause provides that provisions in other Acts and instruments may modify or disapply provisions contained in this Bill. 208. This Bill contains a set of standard procedures and powers which the Tribunal can use to deal with applications. They have been developed to be flexible and adaptable to the Tribunal's broad caseload. There are significant benefits to the Tribunal and users in relying on these standard procedures, rather than applying particular arrangements. 209. Users engage with a range of government agencies over their lifetime, and may seek review of several different government decisions in that time. Recognising that the majority of Tribunal users are self-represented, increased similarity and predictability in how matters will proceed will better equip them to have a positive experience of review. 30

210. For the Tribunal, there are significant efficiencies from greater harmonisation. It reduces the complexity of the Tribunal's operating environment, streamlining procedures and systems, as well as allowing shared members and staff to work more flexibly across caseloads. 211. However, there are circumstances where the standard powers and procedures must be modified to respond to the unique features of a particular caseload. Clause 5 provides that other Acts or instruments may modify or disapply provisions of this Bill if there is a contrary intention (express or implied). Contrary intention can be prescribed by a legislative instrument 212. An instrument can only disapply or modify the application of a provision in this Bill if the Act under which the instrument is made authorises it to do so. That is, the Act must specify that an instrument can contain provisions that apply in addition to, instead of, or contrary to this Bill. Provisions of the AAT Act may be disapplied or their effect altered by any enactment (subsections 25(3), (6) and (6A) of the AAT Act). The Bill enhances transparency and scrutiny by limiting this to legislative instruments and only where provided for by primary legislation. For clarity, subclause 5(2) itself does not provide for instruments to modify the application of Bill, it only clarifies that there may be situations where the Bill's operation or effect is modified by an instrument, where provided for by another Act. Exceptions 213. Subclause 5(3) lists parts of this Bill that other Acts and instruments cannot seek to change. As legislation cannot bind future parliaments, subclause 5(3) is intended to signal that future legislation should not seek to change the effect of these parts of this Bill, and to operate as a presumption that they will apply in the absence of a clear intention to the contrary. 214. The parts of the Bill that cannot be modified are those relating to the establishment of the Tribunal (Part 2), the Tribunal's members, staff and management (Part 8), and the establishment of the Council (Part 9). This ensures that no future legislation can change or impact the structures of the Tribunal and the Council. Clause 6: Extension to external Territories 215. This clause is equivalent to section 4 of the AAT Act, and the policy intent remains relevant to this Bill. This clause provides that the Bill applies both within Australia, and to the external territories. 216. Extending the Bill to the external territories enables the Tribunal to conduct proceedings, in whole or in part, in external territories such as Norfolk Island. 31

PART 2--ESTABLISHMENT OF ADMINISTRATIVE REVIEW TRIBUNAL Division 1--Preliminary Clause 7: Simplified outline of this Part 217. This clause provides a simple outline of the Part. 218. The simplified outline assists readers to understand the substantive provisions of this Part. The outline is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions of the Bill. Division 2--Establishment of Tribunal Clause 8: Establishment 219. This clause establishes the Administrative Review Tribunal. Clause 9: Objective 220. The 1995 Administrative Review Council report 'Better Decisions: review of Commonwealth Merits Review Tribunals' articulated the 'overall objective of the merits review system is to ensure that all administrative decisions are correct and preferable'. This reflected the position endorsed in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, and a line of authority on the role of the AAT and merits review continuing through to the present day. 221. Set against this system-wide objective, this clause provides the objective of the Tribunal. Section 15AA of the Interpretation Act provides that statutes should be interpreted in accordance with their objects. 222. The objective of the Tribunal is to provide an independent mechanism of review that: • is fair and just • 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 • is accessible and responsive to the diverse needs of parties to proceedings • improves the transparency and quality of government decision making, and • promotes public trust and confidence in the Tribunal. 223. Each paragraph is discussed in more detail below. 224. It is intended that the President, the Principal Registrar, members and staff consider the objective as they discharge their functions. 225. While each paragraph of this clause should be read and understood in its own right, no paragraph should be read as having priority above the others. Any tension between them should be resolved in the context of the particular circumstances of each matter. 226. The Tribunal as a whole must pursue the objective - a responsibility that is explicitly conferred on the Tribunal's senior leadership (the President, Deputy Presidents, Principal Registrar and the Committee). 32

Review that is fair and just 227. Paragraph (a) requires the Tribunal to provide an independent mechanism of review that is fair and just. These principles are integral to the Tribunal's function of providing the public with access to review of government decisions they believe are not correct or preferable. 228. Providing a fair and just mechanism of review was part of the objective of the AAT (paragraph 2A(b) of the AAT Act), along with providing economical, informal and quick reviews. The objective clause in the Bill separates the just and fair elements of the objective from the others - highlighting that fairness and justness go principally to the outcome of the review, whereas economy, informality and speed relate principally to the process. This formulation attempts to more clearly articulate the relationship between the elements of the objective. 229. The Bill provides the Tribunal with powers and functions that support it to provide a mechanism of review that is fair and just. These powers and functions include the general principles that provide that the Tribunal has discretion in how it runs a proceeding (subject to the Act and the rules), that the Tribunal must operate with as little formality and technicality as is appropriate, that proceedings must, as far as practicable, be accessible for parties to a proceeding, that the Tribunal is not bound by the rules of evidence, that the Tribunal may determine the scope of the review, that the Tribunal may exercise the powers of the decision-maker, and that the Tribunal must ensure each party to a proceeding is given a reasonable opportunity to present their case. Review that is quick, informal, inexpensive 230. Paragraph (b) requires the Tribunal to provide an independent mechanism of review that resolves matters quickly, inexpensively and informally. This recognises that the Tribunal is not a court, and is not bound by the strict rules and formal processes that apply to them. Importantly though, these goals need to be balanced with providing appropriate merits review of each individual matter - doing the review quickly, cheaply and informally should not come at the expense of properly considering the issues in each particular case. This enshrines the principle of proportionality and acknowledges that some matters cannot - and therefore should not - be reviewed swiftly or cheaply. 231. The Bill provides the Tribunal with powers and functions that support it to provide quick, informal and inexpensive review. These powers and functions include that the Tribunal is not bound by the rules of evidence; that the Tribunal may determine the scope of the review; the provision of discretion to the Tribunal in how it conducts a proceeding; the requirement the Tribunal must operate with as little formality and technicality as is appropriate; the ability for the Tribunal to give directions about the Tribunal's procedure; expanding the circumstances where a matter can be resolved without a hearing; and the ability for an agency party to elect not to participate in the proceeding. 232. This element of the objective effectively combines parts of paragraphs 2A(b) and (c) of the objective in the AAT Act. Review that is accessible 233. Paragraph (c) requires the Tribunal to provide an independent mechanism of review that is accessible and responds to the diverse needs of Tribunal parties. 33

234. The reference to the diverse needs of parties intends to recognise that the Tribunal engages with a broad range of people who may require additional and tailored support to meaningfully participate in Tribunal processes, including people with disability and people who do not speak English as a first language (or at all). 235. The term 'accessible' is defined in clause 4 of the Bill. While accessibility was part of the objective of the AAT (paragraph 2A(a) of the AAT Act), this paragraph (and the associated definition), clarifies its contents. This element of the objective requires the Tribunal to consider each party, their circumstances, and the supports they may need to meaningfully engage in the Tribunal process. 236. The Bill provides the Tribunal with powers and functions that support it to provide accessible review. These powers and functions include the ability for the Tribunal to appoint a litigation guardian for a party to a proceeding in appropriate circumstances, the provision of discretion to the Tribunal in how it runs a proceeding; the requirement the Tribunal must operate with as little formality and technicality as is appropriate; and the obligation to appoint an interpreter for a person appearing at a Tribunal case event in certain circumstances. Review that promotes transparent and high quality government decision-making 237. Paragraph (d) requires the Tribunal to provide an independent mechanism of review that improves the transparency and quality of government decision-making. This element of the objective recognises that, in addition to reviewing individual decisions, the Tribunal can provide an important systemic safeguard by identifying systemic issues in government decision-making. This occurs because avenues of review are an important check on poor decision-making, and because Tribunal decisions provide guidance to decision-makers on the making of correct or preferable administrative decisions, particularly through identifying errors. 238. The Bill provides the Tribunal with powers and functions that support it to promote transparent and high quality government decision-making. These powers and functions include scope to publish Tribunal decisions generally; an obligation to publish Tribunal decisions that raise significant issues of law or have major implications for Commonwealth policy; an obligation to publish all substantive decisions made by the guidance and appeals panel; and requirements for jurisdictional area leaders to identify systemic issues in administrative decision-making, and for the President to inform Ministers of those issues. This element of the objective is also supported by the establishment of the guidance and appeals panel, and the re-establishment of the Council. Review that promotes public trust and confidence in the Tribunal 239. Paragraph (e) requires the Tribunal to provide an independent mechanism of review that promotes public trust and confidence in the Tribunal. This recognises that for the Tribunal to provide effective administrative review of government decisions, the public and decision-makers must view it as skilled, accountable, and independent. 240. This element of the objective is slightly amended from paragraph 2A(d) of the AAT Act. The change ensures that the Tribunal provides a mechanism of review that promotes public trust and confidence in the Tribunal as a whole, rather than just the Tribunal's decision-making process. This acknowledges that the Tribunal has a broader range of functions than only decision-making and that a broad range of Tribunal actions could potentially damage its reputation, including poorly conducted 34

dispute resolution processes, inadequate recruitment processes, or a failure to appropriately manage bullying or harassment claims. This provision aims to ensure the Tribunal conducts all of its activities in a way that builds public trust and confidence in the organisation as a whole. 241. The Bill provides the Tribunal with powers and functions that support this element of the objective. These powers and functions include robust performance management powers to ensure members are held to a high standard; a publicly available member code of conduct; requirements for disclosing, avoiding and managing conflicts of interest; and the ability for matters to be referred at first instance or on appeal to the guidance and appeals panel (to ensure high quality, consistent decision-making). This element of the objective is also supported by the appointment of members following a transparent and merit-based selection processes enshrined in legislation. Clause 10: Members of Tribunal 242. Subclause (1) provides that the Tribunal is comprised of the following members: • the President • Deputy Presidents • senior members, and • general members. 243. The functions and appointment processes for these positions are set out in Part 8. 244. The member structure of the Tribunal is simpler than that of the AAT, with a single member level at the general and senior member designations (rather than two or three). 245. A 'general member' in the Tribunal is equivalent to a 'member' in the AAT. The terminology is updated to clarify that references to a 'member' in the Bill refer to any member of the Tribunal, rather than a specific level of member. 246. Subclause (2) provides that a Judge appointed to the Tribunal can only hold the position of President or Judicial Deputy President. This reflects the experience and skill that Judges bring to the Tribunal, and upholds judicial independence by ensuring that they are not subject to direction by any non-judicial member. 35

PART 3--STARTING A REVIEW 247. This Part makes provision for key concepts for Tribunal review. It also outlines steps involved in initiating a review of a decision in the Tribunal. Division 1--Preliminary Clause 11: Simplified outline of this Part 248. This clause provides a simplified outline of this Part. 249. The simplified outline assists readers to understand the substantive provisions of this Part. The outline is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions of the Bill. Division 2--Key concepts for review of decisions 250. This Division defines key concepts of administrative review by the Tribunal, including which decisions are reviewable by the Tribunal, who the decision-maker is for a decision, when an organisation or association is taken to be a person whose interests are affected by a decision and when a decision is taken to be made if the timeframe for making it expires. Clause 12: Reviewable decisions 251. This clause defines the concept of 'reviewable decision'. A decision is reviewable by the Tribunal if an Act or legislative instrument provides for an application to be made to the Tribunal for review of the decision. This means that other Acts and legislative instruments - not this Bill - determine the Tribunal's jurisdiction. The same Act or legislative instrument that provides for decisions to be made also provides for review of those decisions. This proximity of decision-making power and rights of review reflects the principle that individuals should be able to easily ascertain their review rights. 252. The note under subclause (1) provides guidance on how to find out whether or not a decision is a reviewable decision and may be reviewed by the Tribunal. This will depend on the Act or legislative instrument under which the decision is made. 253. This clause uses the term 'Act or legislative instrument' rather than the outdated term 'enactment' used in subsection 25(1) of the AAT Act in determining what may provide for an application to the Tribunal. This language, along with the language of clause 13, has the effect of excluding notifiable instruments from providing for applications for review. This is a change from the AAT Act. It reflects the position that notifiable instruments, which are not legislative in character, do not provide the appropriate level of parliamentary oversight where review rights are created or removed, and should not confer jurisdiction on the Tribunal. 254. Subclause (2) provides that if an Act or legislative instrument provides for the Tribunal to review a decision of a person under a power conferred on that person, the decision is reviewable whether or not it is made by the person. The note under this subclause clarifies that the effect of this subclause is that a decision is reviewable even if made by a person not empowered to do so - in other words, even in the absence of delegation or lawful authorisation. 36

255. This subclause makes clear that decisions purportedly made by individuals who do not have authority to make those decisions are reviewable. The drafting of this subclause departs from subsection 25(3A) of the AAT Act, which clarifies that where a decision is reviewable by the AAT, decisions of relevant delegates, office-holders or any other person lawfully authorised to make the decision are also reviewable but is silent on decisions made by a person not validly authorised to make them. However, the drafting of this subclause reflects the interpretation of the AAT Act provisions in current case law (see, for example, Minister for Home Affairs v CSH18 [2019] FCAFC 80). Providing explicitly for review of purported decisions maintains review rights for applicants, and ensures that such decisions can be reviewed in the Tribunal. Clause 13: Instruments may provide for application to Tribunal for review 256. This clause provides that a legislative instrument may provide for an application to be made to the Tribunal for review of a decision made under that instrument. This means that legislative instruments may validly confer jurisdiction on the Tribunal for the review of such decisions. This is equivalent to paragraph 25(1)(a) of the AAT Act, with the update (discussed above) to the outdated term 'enactment'. 257. Instruments that are not legislative instruments cannot provide for Tribunal review. As discussed above, this reflects the position that notifiable instruments should not create or remove review rights, or confer jurisdiction on the Tribunal. Clause 14: Decision-maker 258. This clause defines the term 'decision-maker' in the Bill. The term is used throughout the Bill. The decision-maker is a party to a proceeding for review (see clause 22) and has particular responsibilities in a proceeding for review (see, for example, Subdivision B of Division 4 of this Part). General rule 259. Subclause (1) provides that the decision-maker is the person who makes the decision. This definition is intended to be clear and simple, and reflects the common-sense understanding of the term. This will, however, depend on how the decision-making power is conferred in the Act or instrument under which the decision is made. As subclause (7) clarifies, where a delegate or authorised officer makes a decision, the decision-maker will refer to the person in whom the Act or instrument vests the decision-making power. 260. The note under subclause (1) directs readers to clause 108 of the Bill which stipulates that a decision by the Tribunal to vary or substitute a reviewable decision is taken to be a decision of the original decision-maker. Exception--person ceases to hold office, appointment or position 261. Subclause (2) provides that, where a decision-maker has ceased to hold or occupy the office, appointment or position they were in at the time the decision was made, the 'decision-maker' is deemed to be the person who has taken up the office, appointment or position. If the position is vacant, the President may specify a person as the decision-maker. 262. This subclause provides certainty and allows the review to proceed efficiently in circumstances of machinery of government changes or other changes or restructures 37

within decision-making agencies. It is equivalent to subsection 25(7) of the AAT Act, with minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Exception--any other circumstance 263. Subclause (3) provides that if a decision-maker is not identified under subclause (1) or (2), the decision-maker is a person the President considers most able to satisfy the requirements of this Bill on decision-makers of reviewable decisions. This new subclause provides a fall-back where there is particular ambiguity or uncertainty about the person who made a decision, such as in cases of automated decision-making. 264. Although decisions are invalid if not made (or deemed to be made) by an individual properly authorised to do so, the inclusion of this provision is consistent with the principle, established by subclause 12(2), that such invalid decisions can and should be reviewed by the Tribunal. It allows for the review to proceed efficiently in rare circumstances where the person who made the decision is not able to be identified. Specifying a decision-maker 265. Subclause (4) provides a limitation on the President's power to specify a person as the 'decision-maker' for the purposes of subclauses (2) and (3). The President must only specify a person if they consider that they are able to satisfy the requirements in this Bill for decision-makers. This ensures that only appropriate persons are specified and that the power is not exercised arbitrarily. Although not explicitly stated, the President may seek submissions from the person prior to specifying them as decision-maker. 266. There is no requirement for the President to specify this person in writing. However, if they do, subclause (5) is included to assist readers and clarify that the written specification is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act (which means that it does not have to be registered or published). Extension--unincorporated decision-maker is treated as if it were a person 267. Subclause (6) provides that an unincorporated decision-maker who makes a decision, such as a board or committee, is treated as if it were a person making a decision. This is necessary because unincorporated bodies are not legal persons. This subclause is equivalent to subsection 3(2) of the AAT Act. Clarification--decisions made by delegates 268. Subclause (7) clarifies that, where a decision has been made by a delegate, the decision is taken to have been made by the person or body on whom the function or power was conferred by an Act or instrument. This reflects well-established principles of delegation and authorisation of administrative powers, including as expressed in paragraph 34AB(1)(c) of the Interpretation Act. It ensures that, regardless of delegation arrangements in place in decision-making agencies, an appropriately senior person (usually the Minister or Secretary) has the responsibilities and obligations of 'decision-maker' in Tribunal review. In practice, these responsibilities and obligations may also be delegated to or performed by others. Clause 15: Organisation or association whose interests are affected by a decision 269. This clause stipulates the circumstances in which an organisation or association is taken to be a person whose interests are affected by a decision. It is equivalent to 38

subsections 27(2) and (3) of the AAT Act, with minor updates to reflect modern drafting practices and clarify the provision. Its purpose is to ensure that organisations or associations whose interests are affected by a decision are able to apply for review under clause 17, become a party under clause 22, or request reasons for decisions under clauses 268 and 270. 270. This clause provides that, where the decision relates to a matter included in the objects or purposes of an organisation or association, the organisation or association is considered to be a person whose interests are affected by that decision. This applies whether or not the organisation or association is incorporated. 271. The 'matter' relating to the decision must have been included in the objects or purposes at the time of the decision, and continuously after that. This is the defining feature which makes an organisation 'a person whose interests are affected' and is a slight adjustment from the framing of subsection 27(3) of the AAT Act, which does not stipulate that the 'matter' must be connected to the objects or purposes at the time of the review. This ensures that organisations and associations are only deemed to have their interests affected as long as the matter under review remains relevant to their objects or purposes. 272. Clause 15 is a deeming provision. An organisation or association may still be a person affected by a decision despite not falling within the scope of this provision. Clause 16: Decision is taken to be made if timeframe expires 273. This clause provides that, if a decision-maker does not do a thing within a quantified time period as required or permitted, the expiry of that period is deemed to be a decision to not do the thing. This clause is equivalent to subsection 25(5) of the AAT Act, with drafting changes to clarify the period must be quantified (as opposed to 'prescribed') and add a note referring readers to section 10 of the Ombudsman Act. 274. This clause only applies if an Act or instrument provides a quantified period during which the person is required or permitted to do a thing, and the person does not do the thing within the quantified period. The use of the word 'quantified' (rather than 'prescribed' as in subsection 25(5) of the AAT Act) clarifies that this provision is only intended to apply where there is a quantified period (for example, 28 days) rather than a more general period (for example, 'as soon as reasonably practicable') for the making of a decision. 275. The purpose of this provision is to enable a person to make an application to the Tribunal when there has been a failure to make an actual decision. This clause ensures that the decision is deemed for the purposes of this Bill, and the parent Act or instrument. 276. The note under this clause explains that, where there is no quantified time period specified in the Act or instrument, section 10 of the Ombudsman Act applies. Section 10 provides that, where there has been an unreasonable delay in exercising a power, a person may apply to the Ombudsman for a declaration that a decision has been made, enabling an application for review to the Tribunal. Division 3--Applying for review of decision 277. This Division deals with who can apply for review of a reviewable decision and when an application for review must be made. It does not cover how an application is made to the Tribunal, which is dealt with in Division 2 of Part 4 of the Bill. 39

Clause 17: Who can apply 278. This clause provides that any person whose interests are affected by a decision has standing to apply to the Tribunal for review of that decision. This is equivalent to subsection 27(1) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 279. It is a fundamental principle of administrative law that persons affected by government decision-making should be able to seek review. 280. There are several notes that provide context to this clause. Note 1 refers readers to clause 12 to determine which decisions are reviewable. Note 2 refers readers to clause 15 to determine when an organisation's or association's interests are taken to be affected by a decision. Note 3 highlights the right of appeal to the FCA under clause 173 if the Tribunal determines that a person does not have standing to apply for review. 281. Subclause (2) clarifies that the Commonwealth, and incorporated and unincorporated bodies, may apply to the Tribunal. This could occur if a statutory authority had its interests affected by a reviewable decision and wished to seek review. It may also occur if a Commonwealth entity wishes to seek Tribunal review of a decision made on external merits review by the Australian Information Commissioner or the Veterans' Review Board. Example 282. Person A is the owner of Fly Food, a company that delivers snacks across Sydney via a drone. Person A applies for a drone licence and is notified by the Civil Aviation Safety Authority that their application has been approved. Airservices Australia, a separate government body, is unhappy with the decision, as it thinks that Fly Food's flights run too close to certain flight paths into Sydney Airport. Airservices Australia may apply to the Tribunal under subclause 17(2) for review of the Civil Aviation Safety Authority decision. Clause 18: When to apply--general rule 283. Subclauses (1) and (2) provide that the timeframe for applying to the Tribunal for review will be set in the rules, subject to the ability to apply for an extension of time. Subclause (3) provides that rules made under subclause (1) cannot prescribe a timeframe for applying that is less than 28 days from the date of the decision. This is the minimum amount of time that persons affected by government decisions should have to consider the decision, understand the reasons for the decision and their review rights, and decide whether or not to apply for review. 284. This clause is equivalent to subsections 29(2) and (3) of the AAT Act, with some substantive changes to make the information clearer and more user-friendly. This is achieved by moving the detail of those subsections - which provide different starting points for the 28-day period for applying for different scenarios, such as where the decision includes reasons or the applicant requests reasons or there are no reasons provided but only the terms of decision - to the rules. 285. Subclause (4) provides that the rules may prescribe different periods for different classes of application. Having these matters contained in rules provides more flexibility for the Tribunal to manage its workload in the future, and to respond to unanticipated issues in relation to the timeliness of applications. 40

Clause 19: Exception--Tribunal may extend period 286. This clause provides the Tribunal the power to extend the timeframe for applying to the Tribunal for review of a decision. This clause is equivalent to subsections 29(7), (8), (9) and (10) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 287. Subclause (1) allows a person to request an extension. Subclause (2) allows the Tribunal to grant this extension if it considers it reasonable. Subclause (3) provides that the Tribunal can grant an extension even after the timeframe has expired. The power to grant such an extension ensures fairness for potential applicants to the Tribunal. For some, a 28-day timeframe may not be long enough to secure legal aid and other necessary support services, or personal circumstances might prevent the making of a timely application. It is appropriate for the Tribunal to have flexibility and discretion to take into account such circumstances and ensure that potential applicants do not lose their right of review. 288. Subclause (4) provides that the Tribunal must not extend the timeframe to lodge a new application if the ability to seek reinstatement exists under clause 102, or the Tribunal has refused an applicant's request for reinstatement. Clause 102 of the Bill allows the Tribunal to reinstate a dismissed application, either on application or by its own initiative. This is generally limited to within 28 days of the application being dismissed. Subclause 19(4) effectively directs persons to seek reinstatement of a dismissed application rather than making a new application on the same matter. This is because a person should not be able to re-apply for review of a decision that has already been dismissed by the Tribunal. 289. Subclause (5) allows the Tribunal to notify any other person of the extension of time notification if it considers their interests are affected. Subclause (6) provides that a person who is notified has 14 days in which to oppose the extension application. Under subclause (7), if a person does oppose the action the Tribunal must give them, and the applicant, a reasonable opportunity to state their case. This again provides fairness for all potential parties to a proceeding. Clause 20: Exception--no prescribed period applies 290. This clause provides for a scenario where there is no timeframe specified for an application for review of a decision. It functions as a back-up in case the rules under clause 18 of the Bill do not account for a particular decision, or another Act stipulates that the timeframes in clause 18 do not apply, but does not provide an alternative. This clause is equivalent to subsections 29(4), (5) and (6) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 291. Subclause (1) provides that if there is no timeframe specified, and the Tribunal considers the application was not made within a reasonable time after the making of the decision, the Tribunal must dismiss the application. Subclause (3) provides that in considering what is a reasonable time, the Tribunal must consider when the applicant first knew about the decision, and whether a timeframe for application would exist for any other person seeking review of the decision. The Tribunal may also consider any other matters it thinks are relevant. This enables the Tribunal to control its workload and only accept applications for review that are made within a reasonable period - rather than being required to accept applications indefinitely, including 41

applications that may not result in any substantive outcome, due to the passage of time. 292. Subclause (2) provides that, if the application was not made within a reasonable time, the Tribunal may still accept the application if it considers that there are special circumstances that justify reviewing the decision. Division 4--After an application is made 293. This Division deals with matters that must occur after an application is made. It sets out the parties to the proceeding, notification requirements, obligations of decision- makers to provide reasons and documents to the Tribunal and other parties and the effect of an application for review on a decision. Subdivision A--Parties to proceeding Clause 21: Parties and potential parties to be notified of application 294. This clause requires the Tribunal to notify certain people when an application for review of a decision is made. It is equivalent to section 29AC of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 295. When the Tribunal receives an application for review of a decision that it can review, it must provide written notice to the applicant, the decision-maker, and anyone else who is added as a party to the proceeding by another Act or instrument. This includes a party who has elected not to participate in the proceeding under clause 61. 296. Where the Tribunal considers another person's interests may be affected by the decision, the Tribunal may notify the person or require the applicant to notify the person about the application and their ability to apply to become a party to the proceeding. Clause 22: Parties to proceeding for review 297. This clause sets out who the parties are to a proceeding for review. Subclause (1) lists the parties as the applicant and the decision-maker, as well as any person who applies to become a party to the proceeding, if the Tribunal considers that: • the person has interests affected by the decision, and • it is appropriate to add the person as a party to the proceeding. 298. If the Tribunal decides that a person's interests are not affected by a reviewable decision, that person may appeal that decision to the FCA under clause 173. 299. In certain circumstances listed under clauses 59 and 93 of the Bill, the Attorney-General of the Commonwealth or of a State or Territory may become a party to a proceeding. The note under subclause (1) directs readers to those clauses. As anticipated in clause 21, another Act or instrument may also make a person a party. 300. Subclause (2) clarifies that this clause is subject to the clauses in this Bill that allow for parties to withdraw or be removed from a proceeding (clauses 65 and 83). 301. Subclause (3) requires the Tribunal to give written notice to parties if another party is joined to a proceeding. If a person is added as a party to the proceeding by this clause, 42

then the Tribunal must give written notice to all other parties to the proceeding. This ensures that parties informed about developments in the proceeding. 302. This clause is equivalent to section 30 of the AAT Act, with minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Subdivision B--Provision of reasons and documents 303. This Subdivision sets out the requirements for a decision-maker to provide a statement of reasons, relevant documents and other materials to the Tribunal and other parties to a proceeding for review. This ensures that the Tribunal has the material it needs to conduct the review, and provides visibility and transparency to all parties to the proceeding regarding the material before the Tribunal. This is a key element of procedural fairness and the right of the party to present their case (as set out in clause 55). Clause 23: Decision-maker must give reasons and documents to Tribunal--general rule 304. This clause provides that the decision-maker must give the Tribunal a statement of reasons for the decision (defined in clause 4), and a copy of all documents they have that are relevant to the review, within 28 days of being notified of the application for review. The note to this clause clarifies that the statement of reasons given to the Tribunal can be the same as the statement given to an applicant, including under clauses 269 or 270. A decision-maker is not required to prepare a new statement of reasons under this provision if one has already been provided. Instead, they may provide the existing statement to the Tribunal. 305. This clause is equivalent to subsection 37(1) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. This clause ensures that the Tribunal has access to the same materials the decision-maker had when making the reviewable decision. This is a key component of merits review, allowing the Tribunal to 'stand in the shoes' of the decision-maker. 306. Clause 28 (discussed below) provides the Tribunal the power to adjust requirements or provide exceptions in relation to this obligation. Clause 24: Decision-maker must give Tribunal additional statement if Tribunal requires--general rule 307. This clause provides that, where a decision-maker has provided a statement of reasons under clause 23, the Tribunal may require the decision-maker to provide further information in relation to any of the components of the statement - the findings on material questions of fact in relation to the decision, the evidence or other material on which the findings were based, or the reasons for the decision. In the order seeking further information, the Tribunal may also set the period within which the decision-maker must respond. 308. This clause is equivalent to section 38 of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. It ensures that the Tribunal can require the decision-maker to provide a fuller statement of reasons so that the Tribunal and other parties can better understand the basis for the reviewable decision. 43

309. Clause 28 (discussed below) provides the Tribunal the power to adjust requirements in relation to this obligation, particularly the time within which the additional statement must be lodged. Clause 25: Decision-maker must give Tribunal additional documents within 28 days-- general rule 310. This clause requires that where a document relevant to the review comes into the possession or control of a decision-maker, they must provide it to the Tribunal within 28 days. The clause places a continuing obligation on decision-makers to ensure that the Tribunal has the most current material possible and is thus informed and able to properly conduct the review. 311. This clause is equivalent to section 38AA of the AAT Act, with one substantive change to reduce ambiguity. The new clause changes the timeframe from 'as soon as practicable' to 28 days. Decision-makers are encouraged to provide the documents as soon as practicable to facilitate efficient reviews, but a finite period provides certainty to all parties and the Tribunal. 312. Clause 28 (discussed below) provides the Tribunal the power to adjust requirements or provide exceptions in relation to this obligation. Clause 26: Decision-maker must give Tribunal additional documents on request-- general rule 313. This clause provides that where the Tribunal considers that the decision-maker holds a document that may be relevant to the review, the Tribunal may request the decision-maker to provide it within a set period of time. This request may relate to a single document or a class of documents. If the decision-maker holds such a document, this clause requires that they give a copy to the Tribunal. 314. This clause is equivalent to subsection 37(2) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. It ensures that the Tribunal can require the decision-maker to lodge further documents that could be relevant to the review in order to ensure that all relevant documents are available for the purposes of conducting the review. 315. Clause 28 (discussed below) provides the Tribunal the power to adjust requirements in relation to this obligation. Clause 27: Decision-maker must give copies of reasons and documents to other parties--general rule 316. This clause requires that any document given by the decision-maker to the Tribunal under this Subdivision must also be given to each party to the proceeding. This applies to the initial provision of relevant documents and statement of reasons by the decision-maker, any further statement requested by the Tribunal, and any additional documents that come into the decision-maker's possession or are requested by the Tribunal. 317. The decision-maker must give the documents to parties to the proceeding within the same timeframe that they are required to give them to the Tribunal. 318. This clause is equivalent to subsections 37(1AE) and 38AA(2) of the AAT Act, with some substantive changes to expand the requirements of the provisions. The AAT Act 44

only requires decision-makers to provide to all parties copies of the initial statement and all documents that are relevant to the review (under the equivalents of clauses 23 and 25). This clause expands that requirement to all clauses in this Subdivision. This ensures the parties to a proceeding have access to the same information as the Tribunal and decision-maker, which is an important aspect of procedural fairness - parties should have the opportunity to view and respond to any relevant information which may be used to make a decision impacting their rights or entitlements. 319. Subclause (2) stipulates that the requirement to give copies to other parties does not apply if there is a public interest certificate in force in relation to the disclosure of the statement or document. 320. Clause 28 (discussed below) provides the Tribunal the power to adjust requirements or provide other exceptions in relation to this obligation, which may include ordering that some documents do not have to be provided to other parties. Clause 28: Exceptions--Tribunal may adjust requirements 321. This clause provides the Tribunal the power to adjust requirements or provide exceptions in relation to the obligations on decision-makers in this Subdivision. This clause is equivalent to subsections 37(1AA) and (1A) and aspects of subsection 37(1) of the AAT Act, with some substantive changes. It contains an additional exception from the obligation to provide materials if the Tribunal so orders, or in circumstances determined by the practice directions. Shorten period to comply 322. Subclause (3) provides that a party to a proceeding may request that the decision-maker provide any documents or statements requested under this Subdivision sooner than the 28 days set in clauses 23 and 25 of the Bill or the period specified by the Tribunal in an order under clause 24 or 26. 323. Subclause (4) provides that the Tribunal may shorten the period a decision-maker has to comply, either on its own initiative or in response to an application under subclause (3). Extend period to comply 324. Subclause (5) provides that a decision-maker may request an extension to the timeframe within which they must provide any documents or statements requested under this Subdivision. 325. Subclause (6) provides that the Tribunal may extend the period a decision-maker has to comply, either on its own initiative or in response to an application under subclause (5). Subclause (7) clarifies that the Tribunal may extend this period even if it has expired. This means that the decision-maker may still apply for an extension after the time when they were obliged to provide the document or statement. Tribunal orders otherwise 326. Subclause (8) provides important balance to the requirement under clause 27 for the decision-maker to provide other parties with statements and documents given to the Tribunal under this Subdivision. The decision-maker does not need to provide a statement or document under this Subdivision if the Tribunal so orders. It is appropriate and necessary for the Tribunal to have this discretion to order that 45

a decision-maker does not need to provide a particular document or statement. For example, the Tribunal may wish to seek a document under clause 26 and determine if it is relevant, before requiring it to be provided to other parties to the review. Practice directions provide otherwise 327. Subclause (9) provides that the decision-maker does not need to provide a statement or document under this Subdivision in circumstances specified in the practice directions. As discussed above, this balances to the expansion of the requirement in clause 27 that the decision-maker provide other parties with copies of all materials produced under this Subdivision and allows the Tribunal flexibility to manage its own procedure. Number of copies 328. Subclause (10) provides that if the decision-maker is required to provide a statement or document under this Subdivision, the Tribunal may also specify that a certain number of copies are to be provided. Clause 29: Exception--while resolving whether to restrict publication or disclosure of information 329. This clause deals with the intersection of the clauses in this Subdivision and clause 70, which allows parties to apply to the Tribunal for a non-publication or non-disclosure order. It provides that the decision-maker does not need to give a document or statement under this Subdivision to another party if they are waiting for the Tribunal to decide such an application. The decision-maker must still provide the document or statement in question to the Tribunal, and must provide other parties to the proceeding a copy of the application for the order. 330. This clause ensures that information is not given to parties to a proceeding if the decision-maker has made an application for a non-publication or non-disclosure order, until the Tribunal has made its decision on that application. For example, if an agency was aware that a party to the proceeding had family violence concerns and had previously requested their personal details be withheld from the other party, it may proactively seek a non-disclosure order over this information in materials provided to the Tribunal. To support transparency as far as possible, where a decision-maker applies for a non-publication or non-disclosure order, other parties must receive a copy of the application. This ensures that parties are made aware of the decision-maker's application for the order, which may allow other parties to support or oppose the application or seek their own order. 331. This clause is equivalent to subsections 37(1AF) and (1AG) and 38AA(2) of the AAT Act, with some substantive changes to extend its remit beyond the provision of the initial statement of reasons and all relevant documents under clauses 23 and 25. This ensures the temporary protection on information extends to all information a decision-maker may be required to provide. Clause 30: Privilege and public interest 332. This clause provides that documents required to be given by the decision-maker must be given, regardless of legal professional privilege, without prejudice privilege, or public interest immunity in relation to the production of documents. 46

333. This clause is equivalent to subsection 37(3) of the AAT Act, with minor updates to reflect modern drafting practices and to clarify the specific privileges that are to be abrogated. Abrogating these privileges ensures that the Tribunal has access to the same materials as the decision-maker when making the reviewable decision. This is a key component of merits review, allowing the Tribunal to 'stand in the shoes' of the decision-maker. 334. This clause applies to the initial statement of reasons and set of documents relevant to the review held by the decision-maker, any further statement requested by the Tribunal, and any additional documents that are requested by the Tribunal. It does not apply to clause 25, the requirement to provide any additional documents that come into the decision-maker's possession. It would not be appropriate to abrogate privilege in relation to such documents, which were not in the decision-maker's possession at the time of the decision, and which may include materials obtained solely for the purposes of the review. 335. For the avoidance of doubt, other requirements in this Bill to provide evidence, information or documents are not intended to override or abrogate any privilege that applies in the Tribunal context. Subdivision C--Effect of application for review on decision Clause 31: Decision cannot be altered outside Tribunal process 336. This clause provides that once an application to the Tribunal has been made, only the Tribunal may alter the decision under review. It ensures that a decision-maker cannot alter the decision part-way through the process, which would interfere with the integrity of the process of Tribunal review. 337. There are two exceptions to this rule: • if the Tribunal and parties to a proceeding consent to the alteration • if the Tribunal remits the decision back to the decision-maker. 338. This clause is equivalent to section 26 of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 32: Reviewable decision continues to operate unless Tribunal orders otherwise 339. This clause provides that a decision will continue to operate regardless of an application being made to the Tribunal for review. However, the clause also provides that the Tribunal may make an order staying or otherwise affecting the operation or implementation of the decision. This clause is equivalent to section 41 of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 340. The Tribunal may make an order under this clause if it considers it is desirable for the purpose of ensuring the effectiveness of the review. The order is subject to any conditions it specifies. 341. The order generally remains in force until the review is determined, unless the order states that it applies for a certain period, and that period ends before the review is finally determined. The Tribunal may vary or revoke the order on application by a party to the proceeding. 47

342. This clause sets out certain preconditions that the Tribunal must meet before making, varying or revoking an order to stay a decision. These are that the Tribunal: • has given a reasonable opportunity for the parties to the proceeding to make submissions relating to the order, and • has taken into account the interests of any person who may be affected by the review of the decision. 343. However, the Tribunal does not have to give a party an opportunity to make a submission if it is satisfied that it is not practicable to do so. In this circumstance, the clause provides that 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. Example 344. Person A is a full-time student and receives regular payments from Study Support Agency under the Study Support Act 2000. They receive a debt notice from Study Support Agency on the basis that they have been overpaid. The notice requires payment within 90 days. After seeking internal review they make an application for review in the Tribunal. The Tribunal makes an order staying the decision so that Person A does not have to pay the debt while the review is being dealt with. 48

PART 4--PROCEEDINGS 345. This Part sets out the process the Tribunal follows when an application is made. Matters addressed in this Part include how to apply to the Tribunal, the ability of the President to make practice directions, provisions about constituting the Tribunal for a proceeding, general procedural matters, the powers of the Tribunal, the role of public interest certificates and interventions in the Tribunal, details about Tribunal decisions (including Tribunal guidance decisions), what is to happen after a proceeding ends, and offences related to proceedings. Division 1--Preliminary Clause 33: Simplified outline of this Part 346. The simplified outline assists readers to understand the substantive provisions of this Part. The outline is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions of the Bill. Division 2--Applications to Tribunal Clause 34: How to apply 347. This clause prescribes how a person may apply to the Tribunal. The application may be made either in writing or any other manner specified in the practice directions (for example, orally) (subclause (1)). The application must include the information specified for that type of application in the practice directions (subclause (2)). 348. Note 1 under subclause (2) clarifies that if the rules specify that a fee is payable for the application, the Tribunal may dismiss the application under clause 98 if the applicant does not pay the fee within the prescribed timeframe. Note 2 clarifies that other legislation may outline different requirements for applications. 349. Subclause (3) stipulates that, for the avoidance of doubt, a failure to include the information specified for the relevant application in the practice directions does not affect the validity of the application. This is to ensure that the Tribunal has jurisdiction to review an application even if the formal requirements for providing information are not strictly met. 350. This clause changes the application requirements in paragraphs 29(1)(a), (c), (ca) and (cb) of the AAT Act. In particular, it provides greater flexibility to the Tribunal to set the application requirements and process for different classes of applications. This will support development of simplified, streamlined and harmonised application processes where appropriate. It also allows the Tribunal to determine which applicants require particular assistance to make an application. In these circumstances, the practice directions may provide that an application may be made orally and how that may be done. Clause 35: Applications may be made on behalf of a person 351. This clause provides that an application to the Tribunal may be made on behalf of another person. If this occurs, the applicant is the person on whose behalf the application was made. 352. This is intended to allow, for example, a parent to apply to the Tribunal on behalf of their child who has received a decision from the NDIA. 49

353. This clause is equivalent to subsection 27(1) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Division 3--Practice Directions 354. This Division provides the President with the power to make practice directions. It is intended to provide a clear indication of the types of matters about which the President may make practice directions. Clause 36: President may make practice directions 355. This clause gives the President authority to make practice directions for the Tribunal. 356. The power of the President to make practice directions helps ensure there is transparency and predictability in the way the Tribunal operates while also providing flexibility for the Tribunal to adapt its procedures over time. President may make practice directions 357. Subclause (1) provides that the President may make practice directions in relation to any or all of the matters specified in paragraphs (a)-(l). Practice directions help to operationalise how the Tribunal can meet its statutory objective. As a general principle, practice directions should support the Tribunal in meeting its statutory objective. Operations 358. Paragraph (1)(a) provides the President with the power to make practice directions that support the management of Tribunal operations. This paragraph is equivalent to paragraph 18B(1)(a) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Procedure 359. Paragraph (1)(b) provides the President with the power to make practice directions in relation to Tribunal procedures. Examples of matters that may fall within the meaning of this paragraph include how applications may be made and what information must be included, how the decision-maker must prepare the documents relevant to the review to give to the Tribunal and the other party, things the parties must do in relation to a class of applications and when the Tribunal may deal with applications together where a party has or related parties have multiple applications before the Tribunal. This paragraph is equivalent to paragraph 18B(1)(b) of the AAT Act. Conduct of proceedings 360. Paragraph (1)(c) provides the President with the power to make practice directions in relation to the conduct of proceedings. For example, the President could make a practice direction outlining the circumstances in which hearings are to be held in private. This paragraph is equivalent to paragraph 18B(1)(c) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Arrangement of business 361. Paragraph (1)(d) provides the President with the power to make practice directions in relation to the arrangement of the business of the Tribunal. For example, the President 50

could make a practice direction setting out the jurisdictional area or list in relation to which the Tribunal's powers are to be exercised in respect of different types of decisions. This paragraph is equivalent to paragraph 18B(1)(d) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Tribunal sitting locations 362. Paragraph (1)(e) provides the President with the power to make practice directions on the places at which the Tribunal may sit. This could include prescribing the physical or virtual location of a hearing. This equivalent to paragraph 18B(1)(e) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Use of technology 363. Paragraph (1)(f) provides the President with the power to make practice directions relating to 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. For example, the President could make a practice direction under this paragraph outlining when and how telephone or video hearings should be conducted. This is a new provision, created as a response to changes in modern day workplaces. It recognises that virtual rather than in-person Tribunal case events may be required or preferable in certain circumstances. Giving information and producing documents 364. Paragraphs (1)(g) and (h) are new provisions which provide the President with the power to make practice directions on giving information or producing or giving documents to the Tribunal for any purpose or to persons for the purposes of a proceeding in the Tribunal. For example, practice directions made under these paragraphs may address the form and manner in which information, documents (including additional copies) or things may be produced or given. Dispute resolution processes 365. Paragraph (1)(i) provides the President with the power to make practice directions for dispute resolution processes at the Tribunal. For example, a practice direction could set out factors that should be considered when considering whether to refer a proceeding to dispute resolution, which dispute resolution process should be conducted and who should conduct it. This a new provision which aims to ensure that matters relating to how dispute resolution processes operate are included in the Tribunal's practice directions. The provision recognises that dispute resolution is broadly available across the Tribunal, but may not assist in the resolution of all matters, and that some types of dispute resolution may be of more assistance to some processes than others. Setting this out in practice directions also provides flexibility to respond to lessons learned over time. Triaging 366. Paragraph (1)(j) allows the President to make practice directions on the sorting, prioritisation, allocation and treatment of applications for review and related matters. For example, the practice directions could outline the process for sorting the priority in which matters are progressed, the circumstances in which applications may be prioritised and how matters that may be dealt with by members or registrars are 51

allocated to facilitate their expedience finalisation, thereby ensuring the effective administrative triage of matters in the Tribunal. This is a new provision, aiming to ensure the Tribunal is able to manage applications efficiently and effectively. Accessibility 367. Paragraph (1)(k) provides the President with the power to make practice directions regarding the accessibility of the Tribunal and the responsiveness of the Tribunal to the diverse needs of parties to proceedings. Accessibility is defined in clause 4 of this Bill and is an important element of the Tribunal's objective in clause 9 of the Bill. There is no equivalent practice direction explicitly mentioned in the AAT Act. This paragraph is intended to facilitate the operationalisation of the requirement in clause 51 that, as far as practicable, the Tribunal must conduct each proceeding in a way that is accessible for the parties to the proceeding, taking into account their needs thereby allowing them to participate effectively in proceedings in the Tribunal. Other matters 368. Paragraph (1)(l) allows the President to make practice directions in relation to any other matter that is required or permitted by this Bill to be specified in practice directions. An example of a practice direction made under paragraph (1)(l) would include circumstances in which a party may inspect documents produced under summons. 369. Subclause (2) provides that practice directions must be made in writing. From a transparency perspective, this subclause should be read in conjunction with subclause (7) which requires practice directions to be published. Consultation before practice directions are made 370. Subclause (3) provides that before making a practice direction, the President must consult the Committee which is established by clause 236. The functions of the Committee include promoting the objective of the Tribunal, overseeing the caseload of the Tribunal, reviewing the Tribunal's performance, and overseeing trends and patterns across the jurisdictional areas. It includes all jurisdictional area leaders, the President and Principal Registrar. Consulting this group on the making of practice directions will ensure that they are informed by expertise across the full scope of the Tribunal's operations, including each jurisdiction and the registry. Regulations and rules prevail over practice directions 371. Subclause (4) provides that practice directions have no effect to the extent they are inconsistent with the regulations or rules. However, the practice directions are taken to be consistent with the regulations and rules to the extent that they are capable of operating concurrently with the regulations and rules. This subclause is appropriate because regulations and rules have gone through parliamentary processes and so practice directions should not operate inconsistently with them. This subclause reflects the general proposition that anything done under statute must be consistent with the relevant legislation establishing the power, including subordinate legislation. It is included for the avoidance of doubt. Failure to comply does not invalidate 372. Subclause (5) provides that if the Tribunal fails to comply with a practice direction, this does not affect the validity of anything done by the Tribunal. This subclause has been inserted to clarify that Tribunal decisions are not invalidated due to non- 52

compliance with practice directions. Tribunal members are expected to operate consistently with the practice directions, and non-compliance would be able to be addressed through a number of means, such as the performance and conduct management framework. However, decisions remain final and valid provided they are lawfully made by the Tribunal. This subclause is equivalent to subsection 18B(2) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Compliance is sufficient 373. Subclause (6) provides that 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. This subclause is equivalent to subsection 18B(3) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Publishing 374. Subclause (7) provides that the Tribunal must publish practice directions. There is no equivalent provision in the AAT Act. This new clause is intended to ensure transparency around the existence of and access to practice directions for those who use the Tribunal. Although in practice AAT practice directions are published, the Bill makes this a formal requirement. Practice directions not legislative instruments 375. Subclause (8) is included to assist readers and clarify that a practice direction is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act (which means that it does not have to be registered or published as a legislative instrument). Division 4--Constitution of Tribunal for a proceeding Subdivision A--Constituting the Tribunal Clause 37: President may constitute Tribunal for purposes of a proceeding 376. This clause provides that the President may direct which member or members are to be assigned to 'constitute' the Tribunal for the purposes of a certain proceeding (subclause (1)). If multiple members are to constitute the Tribunal for the proceeding, the President must specify a presiding member (subclause (2)). This broad power to direct which member(s) will be assigned to each matter allows the President to discharge their function of managing the business of the Tribunal. It enables the President to assign members to matters according to the nature of the proceeding, current workloads, qualifications and experience of members, and Tribunal needs. 377. In making a direction under subclause (1) or (2), the President (or their delegate) must comply with the requirements of this Bill and any other requirements specified in the practice directions (subclause (3)). Subclause (4) is included to assist readers and clarify that a constitution direction is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act (which means that it does not have to be registered or published). 378. Subclauses (1) and (2) are equivalent to section 19A of the AAT Act. They have minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provisions. 53

379. Subclause (5) requires the President to notify each party (other than a party that has elected not to participate in the proceeding) in writing that the Tribunal has been constituted, including if the Tribunal has been constituted by the guidance and appeals panel (subclause (7)). However, the notice does not need to specify which member or members are constituted to the Tribunal or who is to preside (subclause (6)). 380. The notification requirement has been added to provide greater visibility to parties as to the progress of their matter. Notifying parties that the Tribunal has been constituted to the guidance and appeals panel also assists parties to understand the nature of the proceeding. Different requirements apply to guidance and appeals panel proceedings, including that the outcome must be published and that the decision-maker cannot elect not to participate. As this clause applies to constitution generally, these notification requirements also apply when the Tribunal is reconstituted (see Subdivision D below). Clause 38: President must consult before including Judicial Deputy President 381. This clause requires the President to consult with the Chief Justice of the relevant court before directing that a Judicial Deputy President from that court is to constitute the Tribunal for a proceeding. 382. This is a new provision which recognises the responsibility the Chief Justice of a court has to ensure the workload of the court can be appropriately discharged. This consultation requirement is intended to ensure that the President and the Chief Justice together determine the appropriateness of a Judicial Deputy President hearing a Tribunal matter and assess how this may or may not affect the capacity of the court and the Tribunal to effectively discharge their respective priorities. Subdivision B--Proceedings generally Clause 39: General rules for constitution of Tribunal General rules 383. This clause provides that the Tribunal must be constituted by one, two or three members (subclause (1)). 384. Subclause (2) provides guidance around when it is appropriate for the Tribunal to be constituted by more than one member for a proceeding. It stipulates that multi- member panels can only be used where the President considers it appropriate to do so because the proceeding raises a complex issue, one or more members have particular expertise relevant to the proceeding, or the President considers it is in the interests of justice for the Tribunal to be constituted by multiple members. For example, in a proceeding involving technical medical assessments, it might be appropriate for the Tribunal to be constituted by one member with medical expertise, and one legally qualified member with particular experience in Tribunal decision-making. 385. Subclause (3) prohibits the Tribunal from having more than one member who is a Judge constituted for a proceeding. This recognises that having more than one Judge hear a single matter is likely to significantly impact the pool of Judges available to consider other complex or significant matters. This subclause replicates paragraph 19B(1)(b) of the AAT Act. That paragraph provides that the Tribunal constituted must have no more than one member who is a Judge unless another legislative provision specifies otherwise. The exception still applies but is not explicitly stated in the provision, noting clause 5 of the Bill deals with other Acts and instruments altering the effect of provisions in this Bill. 54

Exceptions 386. Subclause (4) clarifies that these general rules for constitution of the Tribunal are subject to clauses 40 to 42 which relate to the guidance and appeals panel. 387. This clause represents a departure from section 19B of the AAT Act, in that it provides that the Tribunal can only be constituted by more than one member in specific circumstances. This is to ensure that the resources of the Tribunal are used appropriately to enable it to meet that part of its objective of providing a mechanism of review that is as quick as a proper consideration of the matter permits (paragraph 9(b)). Subdivision C--Guidance and appeals panel Clause 40: Exception--President refers application for review that raises significant principle or issue 388. This clause sets out how the Tribunal must be constituted where the President has made a referral to the guidance and appeals panel under clause 122. The note to subclause (1) directs readers to clause 122, which provides that the President may refer an application for review of a reviewable decision to the guidance and appeals panel if satisfied that the application raises an issue of significance to administrative decision-making (see Part 5). 389. Subclause (2) provides that where the President refers a matter to the guidance and appeals panel under clause 122, it must be constituted by either two or three members. Subclause (3) provides that at least one of those members must be the President or a Deputy President. This could be either a Non-Judicial or a Judicial Deputy President. There are no requirements as to what level the other member or members should be however, the President should have regard to the relevant expertise required for matters constituted as the guidance and appeals panel. 390. As the guidance and appeals panel is being newly established by this Bill, this is a new provision. It is intended to ensure that the guidance and appeals panel is constituted by appropriately senior, skilled and respected members, noting that a decision of the guidance and appeals panel as constituted under this provision will become a Tribunal guidance decision unless the President specifies otherwise (see clause 109). Clause 41: Exception--President, on appeal, refers Tribunal decision that raises significant issue 391. This clause sets out how the Tribunal must be constituted when the President decides, in accordance with clause 128, to refer a decision of the Tribunal to the guidance and appeals panel following application by a party and is satisfied that it raises an issue of significance to administrative decision-making. 392. In that case, the Tribunal must be constituted by two or three members and one of those members must be the President or a Deputy President (subclauses (2) and (3)). These constitution requirements mirror those in clause 40. This is because the criteria for referring a decision to the guidance and appeals panel in both circumstances are the same, except that under clause 41 the Tribunal has already made a decision in the matter. 55

393. It is intended to ensure that the guidance and appeals panel is constituted by appropriately senior, skilled and respected members, noting that a decision of the guidance and appeals panel as constituted under this provision will become a Tribunal guidance decision unless the President specifies otherwise (see clause 109). 394. Subclause (4) provides the President must not constitute a member to the guidance and appeals panel under this provision if that member constituted the Tribunal or was one of the members who constituted the Tribunal for the purpose of the proceeding in which the decision that is being referred to the guidance and appeals panel was made. However, the President may do so if the parties agree (being the parties to the guidance and appeal panel proceeding). 395. As the guidance and appeals panel is being newly established by this Bill, this is a new provision. Clause 42: Exception--President, on appeal, refers Tribunal decision for material error 396. This clause sets out how the Tribunal should be constituted when the President decides to refer a decision of the Tribunal to the guidance and appeals panel on the basis that the Tribunal decision may have been materially affected by error. 397. Subclause (1) provides that the clause applies if the President is not satisfied that the decision raises an issue of significance to administrative decision-making. This reflects that the President may refer a Tribunal decision to the guidance and appeals panel under clause 128 if satisfied that the decision either raises an issue of significance to administrative decision-making or may contain an error of fact or law materially affecting the decision, or both. If the President is satisfied that the decision raises an issue of significance (whether or not it may also contain a material error), the President must constitute the Tribunal in accordance with clause 41. Note 1 refers readers to clause 128. 398. Where this clause applies, the Tribunal may be constituted by one, two or three members (subclause (2)). The President must not constitute a member to the guidance and appeals panel under this provision if that a member constituted the Tribunal or was one of the members who constituted the Tribunal for the purpose of the proceeding in which the decision that is being referred to the guidance and appeals panel was made. However, the President may do so if the parties agree (being the parties to the guidance and appeal panel proceeding) (subclause (3)). 399. The clause also provides that, if the Tribunal is to be constituted by a single member, that member must hold a more senior level of appointment than the most senior member who constituted the Tribunal for the purposes of making the Tribunal decision that has been referred to the guidance and appeals panel (subclause (4)). If the Tribunal is to be constituted by more than one member, the member who is presiding must hold a more senior level of appointment that the most senior person involved in making the Tribunal decision (subclause (5)). Subclause (6) clarifies who the most senior person involved in making a Tribunal decision is for the purposes of subclauses (4) and (5). 400. Subclause (7) sets out the order of seniority of members, being in order from most senior, the President, the Judicial Deputy Presidents, Non-Judicial Deputy Presidents, senior members and general members. All members appointed to a particular category of member (for example, all senior members) are of the same seniority, regardless of the date of their appointment, specific qualifications, et cetera. For example, if a 56

senior member made the first Tribunal decision, the guidance and appeals panel must be constituted by, or include as the presiding member, the President or a Deputy President for the review of that decision. 401. Decisions of the guidance and appeals panel as constituted under this provision do not become guidance decisions, but must be published and should carry significant weight. The constitution requirements reflect an appropriate level of seniority. These are the minimum requirements; the President retains discretion to constitute more senior members than strictly required, depending on the complexity and significance of the matter. 402. This is a new provision, reflecting that the guidance and appeals panel is being newly established by this Bill. Subdivision D--Reconstitution 403. This Subdivision deals with reconstitution of the Tribunal, including when a matter must be reconstituted for various reasons, including in specific circumstances such as where a matter is referred to the guidance and appeals panel, where a member has been involved in a dispute resolution process in the proceeding or where a member has a conflict of interest in relation to a matter. When the Tribunal is reconstituted, the President must issue a new constitution direction under subclause 37(1), triggering the notification requirements under subclauses 37(5), (6) and (7). Clause 43: Reconstitution--before hearing starts 404. This clause allows the President to reconstitute the Tribunal (alter the members who will hear the matter) at any time before the proceeding's hearing starts. This is to ensure the President has the power and flexibility to reassign which member will deal with particular proceedings in response to, for example, changing availability of members, changing priorities, resourcing constraints and to avoid any potential conflicts of interest. Allowing the President to reconstitute the Tribunal at any time before the hearing starts is appropriate, because at this stage doing so involves less disruption to the proceeding and parties, and the member is less likely to have expended significant time familiarising themselves with the matter. In comparison, reconstituting the Tribunal for the purposes of a proceeding after the hearing has started should be more confined because it may otherwise be seen as impacting the independence of the Tribunal in hearing and deciding a matter. 405. This clause is equivalent to subsection 19D(1) of the AAT Act, with minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision Clause 44: Reconstitution--after hearing starts if member unavailable 406. If the hearing has already started, reconstituting the Tribunal will involve more disruption, as the parties will have already met and perhaps become comfortable with the member, and the member will have invested time familiarising themselves with the matter. Reconstituting the Tribunal for the purposes of a proceeding at this time may also impinge upon the independence of the Tribunal and as such, the President should only reconstitute the Tribunal after this point in certain, limited circumstances, outlined in this clause. 407. Those circumstances include: 57

• where the original member (or one of the members) stops being a member, is unavailable for any reason, or is directed by the President not to take part in the proceeding, or • the President thinks it would achieve the quick and efficient conduct of the proceeding. 408. Before reconstituting the proceeding for any of the above reasons, the President must be satisfied that doing so is in the interests of justice, and (if it is reasonably practicable to do so) the President has consulted the affected member or members. 409. This clause is equivalent to subsections 19D(2) and (6) of the AAT Act, with minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 410. Subclause (3) has been added to provide additional clarity as to when the President may direct a member not to take part in a proceeding (referred to in subparagraph (1)(a)(iii). This may occur if the President considers it is in the interest of justice to do so and the President has consulted the member if it is reasonably practicable to do so. These circumstances are intended to be broad. For example, the President may form the view that a particular proceeding should be dealt with by members of a particular gender, due to the nature of the applicant and the evidence involved. This may involve reconstitution if the need does not become apparent until after the hearing commences. This clause is equivalent to subsection 19D(5) of the AAT Act, with minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 45: Reconstitution--involvement in dispute resolution process 411. This clause enables the President to reconstitute the Tribunal if a member must cease taking part in a proceeding under clause 89. Clause 89 provides that a member who has been involved in a dispute resolution process in relation to the proceeding may no longer continue to take part in the proceeding if a party objects. This is a new provision that has been added to give effect to the principle in section 34F of the AAT Act, replicated in clause 89 of this Bill, that evidence of anything said or done at a dispute resolution process is unable to be used as evidence in a hearing before the Tribunal except where the parties agree to the evidence being used (refer clause 88). The requirement for a member to cease taking part in a proceeding, and the power for the President to reconstitute the Tribunal if so, protects the integrity and confidentiality of dispute resolution processes. 412. It is noted that, if a member ceases to take part in a proceeding under clause 89 before the start of the hearing, the President must also reconstitute the Tribunal. A specific power is not required for this circumstance because clause 43 allows the President to reconstitute the Tribunal at any time before the start of the hearing. Clause 46: Reconstitution--after hearing starts for conflict of interest or bias 413. This clause allows the President to reconstitute the Tribunal, if - due to a member having a conflict of interest, or actual or apprehended bias in relation to the proceeding - it would be in the interests of justice for them to be removed from hearing the proceeding. 58

414. This is an entirely new provision, added to promote the objective of the Tribunal, including providing a method of review that is fair and just, and promoting public trust and confidence in the Tribunal. The absence of bias is a fundamental component of procedural fairness. 415. It is noted that, if the President becomes satisfied that a member has a conflict of interest or an actual or apprehended bias before the hearing has commenced, they may also reconstitute the Tribunal. A specific power is not required for this circumstance because clause 43 allows the President to reconstitute the Tribunal at any time before the start of the hearing. Clause 47: Reconstitution--as guidance and appeals panel after hearing starts 416. This clause provides that, if an application is referred to the guidance and appeals panel under clause 122, the President must reconstitute the Tribunal for that proceeding. This may occur if, after the hearing has commenced but before the Tribunal's decision is made, the President is satisfied that the application raises an issue of significance to administrative decision-making and it is appropriate in the interests of justice to refer the application to the guidance and appeals panel. 417. In these circumstances, the President must reconstitute the proceeding in accordance with clause 40. It is noted that, if the President refers a matter to the guidance and appeals panel under clause 122 after the Tribunal has been constituted but before the hearing commences, they must also reconstitute the Tribunal in accordance with clause 40. A specific power is not required for this circumstance because clause 43 allows the President to reconstitute the Tribunal at any time before the start of the hearing. 418. If the Tribunal is already constituted by either the President or a Deputy President and one to two other members (meaning the requirements under clause 40 are met), the President must still reconstitute the Tribunal as the guidance and appeals panel if a referral is made under clause 122. In these circumstances, the President may reconstitute the Tribunal with the same members or with different members, in their discretion. 419. As the guidance and appeals panel is being newly established by this Bill, there is no equivalent provision in the AAT Act. Clause 48: After Tribunal is reconstituted 420. This clause stipulates that if the Tribunal is reconstituted, the newly reconstituted Tribunal must continue the proceeding. In doing so, it may have regard to any records of the proceeding to date (including any evidence taken), and any documents or things relating to the proceeding that were given to the previously constituted Tribunal. 421. This clause aims to ensure that if the Tribunal needs to be reconstituted, the proceeding can continue smoothly: it does not need to start again, parties do not need to experience the inconvenience of re-providing evidence or documents, and disruptions caused by the reconstitution can be kept to a minimum. This aids the efficient operation of the Tribunal, and promotes the objective of resolving applications quickly and with as little expense as possible. 422. However, the Tribunal as reconstituted also has discretion to inform itself on any matter in any manner it sees fit. 59

423. This clause is equivalent to subsection 19D(4) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Division 5--Tribunal procedure Subdivision A--General principles 424. Subdivision A of the Bill includes general principles for the operation of the Tribunal during a proceeding. Many of these principles have been drawn from the AAT Act and are intended to enable users to obtain effective merits review of a decision. Clause 49: Tribunal has discretion in relation to procedure 425. Subclause (1) provides that the procedure of the Tribunal in a proceeding is within the discretion of the Tribunal. This enables the Tribunal to adapt its procedure to the nature and circumstances of the matter, provided it is consistent with relevant legislation (including this Act, the regulations and rules, and other relevant Acts and legislative instruments) (subclause (3) and subclause 5(2)). This discretion enshrines flexibility in the way the Tribunal hears matters, so it can conduct proceedings in the most appropriate way for each matter before it, noting the diverse array of matters within its jurisdiction. This subclause is equivalent to paragraph 33(1)(a) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 426. Subclause (2) also provides that in exercising its discretion, under subclause (1), the Tribunal must have regard to the circumstances of the proceeding. This subclause does not require the Tribunal to conduct proceedings according to the preferences of the parties. Rather, it is a broad expectation that the Tribunal will consider the circumstances and nature of the parties and the questions before it in exercising the powers and functions set out in this Part. For example, the Tribunal may consider that parties to a particular proceeding should be in separate rooms during case conferencing where an applicant has severe social anxiety and would be intimidated by the presence of a decision-maker. 427. The principle that the Tribunal has discretion in relation to procedure and must have regard to the circumstances of the proceeding is consistent with tribunal proceedings generally and the objective in clause 9. In particular, it supports the objective in paragraph 9(b) of resolving applications as quickly, and with as little formality and expense, as a proper consideration of the matter permits; and the objective in paragraph 9(c) of being accessible and responsive to the diverse needs of parties. Clause 50: Tribunal is to act informally etc. 428. This clause provides that the Tribunal must act with as little formality and technicality as is consistent with a proper consideration of the matters before it. This clause reinforces the fact that the Tribunal is not a court, and so should not act - or require parties, representatives, a witness - to act with the level of formality required during court proceedings. It links to the overall objective of the Tribunal in clause 9, ensuring that the Tribunal's actions specifically in relation to proceedings are guided by the principle of informality. 60

429. The clause necessarily requires the Tribunal to undertake a balancing exercise: it is important that informality should not come at the expense of ensuring the merits of the matter are properly considered in each case. 430. Examples of informality might include not being required to stand when a member enters the room, not needing to address members by their formal title (unless they are a Judge), or having direct dialogue between parties and the member. 431. The requirement in this provision is subject to the Act and the rules (subclause (2)). 432. This clause is equivalent to paragraph 33(1)(b) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 51: Tribunal to be accessible 433. This clause provides that the Tribunal must ensure that proceedings are, as far as practicable, conducted in a way that is accessible to the parties to the proceedings, taking into account their needs. 'Accessible' in relation to the Tribunal means enables persons to apply to the Tribunal and to participate effectively in proceedings in the Tribunal (clause 4). 434. This provision is consistent with the objective of the Tribunal which includes providing an independent mechanism of review that is accessible and responsive to the diverse needs of parties to the proceedings (refer paragraph 9(c)). It also supports the objective in paragraph 9(a) of providing a mechanism of review that is fair and just. 435. Examples of accessible proceedings might include conducting the hearing in an accessible hearing room, providing interpretation services (including Auslan interpreters), ensuring that documents are provided to parties in accessible formats, or ensuring that operations of the Tribunal are trauma-informed. 436. The requirement in this provision is subject to the Act and the rules (subclause (2)). Clause 52: Tribunal is not bound by the rules of evidence 437. This clause provides that the rules of evidence do not bind the Tribunal, and the Tribunal may inform itself on any matter in such manner as it considers appropriate. This clause reflects the fact that the Tribunal is not a court, and is therefore not constrained like courts by strict rules about the admissibility of evidence. Similarly, parties in Tribunal hearings (many of whom are unrepresented) should not have to adduce evidence according to rigid rules of evidence. 438. This provision promotes the Tribunal objective, particularly in relation to informality and flexibility (clause 9), and making the Tribunal more accessible to users. 439. It is important to note that, while the Tribunal is not bound by the rules of evidence, it may have regard to those rules where it is appropriate. The rules of evidence are well- established and understood, and can provide a useful point of reference in determining how information before the Tribunal can be treated. 440. This clause is equivalent to paragraph 33(1)(c) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 61

Clause 53: Tribunal controls scope of review of decision 441. This clause gives the Tribunal discretion to determine the scope of the review, including by narrowing the evidence, facts and issues it will consider. Clause 53 supports the Tribunal's power to determine how a proceeding will be conducted (clause 49), and is designed to ensure its resources are used effectively to consider the things that are truly necessary to resolve the application. This clause supports the objective in paragraph 9(b) of resolving applications as quickly, and with as little formality and expense, as a proper consideration of the matter permits. 442. Parties may, at times, call upon the Tribunal to consider and/or make determinations on evidence or issues of law and fact that are not relevant to the decision that is under review. This clause enables the Tribunal to decline a party's request to consider or make determinations of evidence or issues of law and fact which are not relevant. It is not intended that this section will allow the Tribunal to limit its own jurisdiction conferred by the Bill or other legislation, or to neglect to consider issues that are central to the decision under review. 443. This clause is equivalent to section 25(4A) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 54: Tribunal can exercise powers of decision-maker 444. This clause enables the Tribunal to exercise all of the powers and discretions held by the original decision-maker, when conducting a review of a reviewable decision. The clause is equivalent to the chapeau paragraph in subsection 43(1) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 445. The clause allows the Tribunal to 'stand in the shoes' of the original decision-maker and when read in conjunction with clause 105 gives the Tribunal the power to make a decision accordingly. This is a core feature of de novo merits review - in contrast to judicial review, which deals with legal problems with the decision, a de novo review reconsiders and remakes the decision from the beginning. The Tribunal may consider all of the relevant evidence and circumstances (including the facts, laws and policy settings), to determine the correct or preferable decision. Example 446. Jobcare is an agency that determines compensation entitlements in cases of workplace injury under the Jobcare Act 2000. That Act confers on the CEO of Jobcare the power to decide whether or not Jobcare is liable to pay compensation in respect of a particular injury, and assess the appropriate quantum of compensation for that injury. Person A applies for compensation from Jobcare for an injury that has prevented them from working for three months. The CEO of Jobcare decides that Jobcare is liable to pay compensation, and assesses the quantum of compensation at $1000 altogether. Person A applies to the Tribunal for review of the decision, on the basis that the amount granted is insufficient. In reviewing the decision, clause 54 allows the Tribunal to exercise the same powers as those conferred by the Jobcare Act 2000 on the CEO of Jobcare. This means that the Tribunal has the power to decide whether or not Person A is entitled to compensation, as well as assessing the appropriateness of the amount granted. 62

Clause 55: Right to present case 447. This clause provides that the Tribunal must ensure that each party is given a reasonable opportunity to present their case, have access to any relevant documents, make submissions and adduce evidence to support their case. This obligation on the Tribunal reflects the principle of procedural fairness and supports the objective in paragraph 9(a) of providing an independent mechanism of review that is fair and just. Paragraphs (1)(a) and (b) are equivalent to subsection 39(1) of the AAT Act. They have minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. What is involved in presenting a case may differ in certain types of proceedings. For example, a proceeding from a referral to the guidance and appeals panel on a material error would be more reliant on existing materials and written submissions than a proceeding in the Tribunal that reviewed the original decision. Paragraph (1)(c) is equivalent to aspects of section 39(1) of the AAT Act with some changes so that, under this Bill, each party is given the opportunity to make submissions and adduce evidence rather than only make submissions in relation to documents that the Tribunal will have regard to in reaching a decision. 448. Subclause (2) provides an exception by stipulating that the party's right to present their case, inspect documents and make submissions does not apply if the party has elected not to participate in the proceeding under clause 60. This is because, in electing not to participate, a party has knowingly chosen not to present their case to the Tribunal, so the Tribunal is not obliged to afford these opportunities. 449. Subclause (3) notes that subclause (1) is subject to other clauses that restrict a party's or the public's access to hearings, information or documents. These include that hearings should generally be in public unless a Tribunal order or practice directions states otherwise (clause 69), that the Tribunal may restrict the publication or disclosure of information in certain circumstances (clause 70), restrictions on inspection of documents produced under summons (clause 78), the operation of public interest certificates (clause 91), and Part 6 of the Bill, which deals with proceedings in the Intelligence and Security Jurisdictional Area. The inclusion of subclause 3 reflects the fact that there are some circumstances where the operation of the principle of procedural fairness needs to take into account the circumstances of the parties or any persons connected to the proceeding and the related need to keep information confidential, such as for personal safety or national security reasons. 450. Subclause (4) clarifies that the provision does not limit clause 53. This subclause is included for the avoidance of doubt to make it clear that the Tribunal is not required to take evidence or submissions on matters that are not relevant to the proceedings. Clause 56: Parties and their representatives to assist Tribunal 451. This clause imposes obligations on parties and their representatives to assist the Tribunal, in order to discourage unnecessary delay or obfuscation, and to create a facilitative environment where the issues in dispute can be resolved quickly and simply. 452. Subclause (1) provides obligations for the decision-maker and their representative. It is equivalent to subsections 33(1AA) and (1AB) of the AAT Act however the wording 'correct or preferable decision' has been added to underscore that the obligation does not merely extend to assisting the Tribunal to reach any decision, but 63

rather the correct or preferable one. Otherwise, the operation and effect of the provision is the same. 453. Paragraph (1)(a) requires the decision-maker and their representative to use their best endeavours to assist the Tribunal to make the correct or preferable decision. This places a positive obligation on the decision-maker to help the Tribunal come to the correct or preferable decision, rather than the decision that might be most favourable for the decision-maker. It recognises that all decision-makers should be invested in delivering high quality government decision-making. It also aligns with the principles underpinning the Commonwealth's model litigant obligations. 454. Paragraph (1)(b) requires the decision-maker and their representative to use their best endeavours to assist the Tribunal to achieve the objective in clause 9. This places a positive obligation on the decision-maker to assist the Tribunal to ensure, for example, that the review is fair and just and that it is conducted with as little formality as possible, particularly in circumstances where they are appearing opposite an unrepresented party. The decision-maker and their representative should not encourage the Tribunal to make orders that are inconsistent with its objective - for example, to summon information that will delay the proceeding without assisting the Tribunal to reach the correct or preferable decision. 455. Subclause (2) requires any other parties and their representatives do all they can to assist the Tribunal to achieve its objective under clause 9. A party who is not the decision-maker does not have an explicit obligation to assist the Tribunal to reach the correct or preferable decision. This different legislative requirement reflects the different role that parties and their representatives as opposed to the decision-maker have in Tribunal proceedings. The Tribunal 'stands in the shoes' of the decision maker and the Tribunal's decision, once it has been substituted for the original decision, will become the decision of the decision maker. It therefore follows that the decision maker should (and would want to) assist the Tribunal to make a correct or preferable decision. This subclause is equivalent to subsection 33(1AB) of the AAT Act. It contains minor drafting changes, including to refer to the new objective in clause 9. These do not affect the operation or effect of the provision. 456. Subclause (3) clarifies that where a party has elected not to participate in a proceeding, the obligation to assist the Tribunal only applies to the extent that the party is participating in the proceeding. This is because a non-participating party is necessarily hampered in its ability to assist the Tribunal. This subclause clarifies that a non-participating party is not required to assist in circumstances where they are otherwise not participating, merely because of their obligation under subclause (1). Rather, the obligation to assist in subclause (1) would apply to steps of the proceeding that all decision-makers are required to take, such as provision of documents under Division 4 of Part 3. Clause 57: Sittings of Tribunal 457. This clause provides for the Tribunal to hold sittings from time to time as required, wherever it is convenient or in the interests of justice (including across states and territories and external territories). 458. This clause provides that the Tribunal can sit in Australia and the external territories. It does not allow the Tribunal to hold sittings overseas. 64

459. This clause is equivalent to section 18C of the AAT Act, with the addition that sittings may be held in such places as are 'in the interest of justice'. This reflects that access to the Tribunal is promoted by it holding sittings in locations that may not be administratively convenient, but are in interests of justice. This could include conducting circuits in remote and regional areas and ensuring that hearings are held in locations that are accessible to the parties. This promotes the objective in paragraph 9(c) of providing an accessible and responsive mechanism of review. Clause 58: Resolving disagreements between Tribunal members 460. This clause recognises that, when there are multiple members constituted to a proceeding, they may reasonably disagree about the way to conduct the proceedings, a particular matter at hand, or the final decision on the application (for example). To address this, clause 58 prescribes the manner in which the Tribunal is to resolve such member disagreements, so the matter does not reach a deadlock and can proceed without unnecessary delay. 461. Subclause (1) provides that where the Tribunal is constituted by two members, the view of the presiding member should prevail in the event of a disagreement. 462. Subclause (2) provides that where the Tribunal is constituted by three members, the view of the majority should prevail if the majority agrees, and if not, the presiding member's view should prevail. 463. This clause is equivalent to section 42 of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Subdivision B--Parties and representation Clause 59: Attorney-General of the Commonwealth may become a party 464. Subclause (1) provides that the Attorney-General may become a party to the proceeding by giving written notice to the Tribunal. Subclause (2) provides that the Attorney-General ceases to be a party to the proceeding by giving written notice to the Tribunal. 465. This clause recognises that the Attorney-General, as the Commonwealth's First Law Officer and chief legal adviser to the government, has a general responsibility for protecting the rule of law and the integrity of the justice system. This clause gives the Attorney-General the power to become a party to Tribunal proceedings. It is likely this would be exercised in matters of significant public importance, where the outcome of the matter might have significant implications for the development of the law or the community more broadly (going beyond the interests and concerns of the parties directly involved in the proceedings). Because Tribunal proceedings do not result in binding precedents, it is likely this power would be exercised rarely. 466. Subclause (3) provides that the Attorney-General may authorise the Commonwealth to pay the costs that another party reasonably incurs as a result of the Attorney-General being a party to the proceeding under this clause. This aims to ensure that parties are not financially disadvantaged due to the Attorney-General becoming a party to the proceedings, particularly where the Attorney-General's involvement is motivated by a broader point of law (rather than the outcome in that particular party's matter). 65

467. This clause is equivalent to section 30A of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 60: Decision-makers may elect to not participate in kind of proceeding 468. Subclause 60(1) provides that a decision-maker for a reviewable decision can elect to not participate in proceedings of a certain kind by giving a written notice (an election notice) to the Tribunal. This subclause aims to promote efficiency and a more informal, less-adversarial Tribunal environment. 469. In some kinds of proceedings, the objective of the Tribunal may be better served if a decision-maker does not participate in the proceeding. In these circumstances, a decision-maker may decide to give an election notice to the Tribunal. This recognises that some proceedings benefit from a less formal and less adversarial process of review and reflects that decision-makers do not currently participate in some matters in the AAT. 470. A decision-maker who elects to not participate in a proceeding will continue to be required to assist the Tribunal to the extent that they are participating in the proceeding (see subclause 56(3)). However, they are not required to assist the Tribunal, and the Tribunal is not required to provide an opportunity to present their case, beyond the specific obligations that this Bill places on decision-makers who are not participating in proceedings. The Bill expressly provides that subclause 37(5) (President must notify parties to a proceeding of Tribunal constitution), clause 55 (right to present case), clause 72 (Tribunal must notify parties of Tribunal case event) and clause 83 (Tribunal may remove party for proceeding if party fails to appear or does not comply) will not apply to a non-participating party. 471. By virtue of the operation of section 33 of the Interpretation Act, where a decision-maker has given an election notice to the Tribunal, the decision-maker can revoke, amend or vary the notice. 472. Subclause (2) provides that the Minister may make rules preventing a decision-maker from issuing an election notice for specific kinds of proceedings. The Minister may use this power, for example, where a decision-maker's failure to participate in a kind of proceeding would have an adverse impact on the Tribunal's ability to conduct merits review of those proceedings. 473. Subclause (3) is included to assist readers and clarify that an election notice is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act (which means that it does not have to be registered or published). 474. This is a new provision. Clause 61: Decision-maker who elects not to participate may be a non-participating party to proceeding 475. Subclause 61(1) defines a 'non-participating party' to a proceeding and this term is used in subsequent clauses. A person is a 'non-participating party' to a proceeding if: • the person is the decision maker for the proceeding • the proceeding relates to a decision for which the person is the decision-maker • the proceeding is of a kind covered by an election notice 66

• the proceeding is not a guidance and appeals panel proceeding • any conditions set out in the rules are satisfied • the Tribunal has not decided that the person can participate in the proceedings under clause 62, and • the Tribunal has not ordered the person to participate in the proceeding under clause 63. 476. Given the significance of guidance and appeals panel matters, decision-makers must always participate in these proceedings. If the matter has been referred to the guidance and appeals panel because the President is satisfied it raises an issue of systemic significance, the decision of the guidance and appeals panel is automatically a guidance decision unless it is declared not to be by the President (clauses 122, 128(2)(a) and 109). It is important that decision-makers are represented in such proceedings to ensure they have the opportunity to make submissions and assist the Tribunal to reach its decision. This is because the decision is likely to have a significant impact on the way these matters are treated in the Tribunal, which would consequently have implications for how the decision-maker must act in relation to those matters in future. Although matters referred to the guidance and appeals panel on the basis they may contain a material error (under paragraph 128(2)(b)) do not result in guidance decisions, decisions of the guidance and appeals panel in these matters must be published, are determined at a more senior level, and may be expected to have a normative effect on future Tribunal decision-making. It is appropriate for the guidance and appeals panel to have the assistance of the decision- maker in these matters, including to determine if an error of fact or law has been made. 477. The note under subclause (1) clarifies that a party who elects to not participate in a proceeding remains a party to the proceeding and has an ongoing obligation to comply with relevant provisions in the Bill and orders of the Tribunal, but certain requirements do not apply to the party. See for example clause 83 (Tribunal may remove party from proceeding if party fails to appear or does not comply). 478. Subclause (2) clarifies that once the Tribunal has decided that a person is to participate in a proceeding under clause 62 or orders the person to participate in the proceedings under clause 63, the person is no longer a non-participating party. Subclause (2) also provides that a new election notice does not affect this. In effect, this means that if a non-participating party wishes to participate in a particular proceeding and the Tribunal has agreed, the decision-maker must continue to participate in the proceeding. It would be disruptive, may cause confusion for parties and would waste Tribunal resources if the decision-maker had a further opportunity to elect to not participate in the proceedings. 479. Subclause (3) empowers the Minister to provide that a decision-maker is a non-participating party in a certain kind of proceeding. Where the Minister considers that a decision-maker should not be participating in a particular kind of proceeding, this subclause empowers the Minister to determine this in the rules. 480. Although decision-makers do not participate in all proceedings in the AAT, this provision does not exist in the AAT Act. Instead, separate legislation sets out how and when decision-makers participate and provide for different powers and procedures to reflect this. The Bill provides additional flexibility to determine how and when decision-makers should participate in reviews based on the nature and circumstances 67

of particular kinds of matters, instead of being rigidly determined in legislation by the Division of the Tribunal in which the matter is heard. Clause 62: Tribunal may allow non-participating party to participate 481. On occasion, a decision-maker who has elected not to participate in a kind of proceeding may identify a particular proceeding in which their participation may be beneficial. This could be, for example, where an application for review raises an issue of particular interest for the agency, or where the agency identifies an opportunity arrive at a negotiated outcome that is favourable to the applicant. In these circumstances, enabling the decision-maker to participate in the proceeding promotes the objective of efficient review. 482. Subclause (1) provides that a non-participating party may provide the Tribunal with a written notice (participation notice) that the party wishes to participate in the proceeding and the Tribunal must decide whether or not the non-participating party can participate in the proceeding. If the Tribunal agrees to the decision-maker participating in the proceeding, their participation does not affect any steps taken in relation to the proceeding before their participation commenced. 483. Allowing the Tribunal to determine whether the decision-maker should participate ensures the Tribunal can consider any concerns other parties may have in relation to the decision-maker participating. Together with clause 64, it also helps to promote certainty and predictability about the participation of the decision-maker in particular kinds of proceedings. 484. The note under subclause (1) clarifies that where a decision-maker has provided the Tribunal with an election notice to not participate in proceedings of a particular kind and the Tribunal (under subclause (1)) decides they can participate in a particular proceeding of that kind, the election notice continues to apply to all other proceedings of that kind. 485. Subclause (2) is included to assist readers and clarify that a participation notice is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act. Clause 63: Non-participating party may give submissions or be required to participate 486. This clause provides ways that a non-participating party may participate in a particular proceeding. It is equivalent to section 39AA of the AAT Act (Submissions by agency party in Social Services and Child Support Division), but applies to any non-participating party. 487. Subclause (1) provides that a non-participating party may provide written submissions to the Tribunal in relation to the proceeding. The leave of the Tribunal is not required. As noted in relation to clause 56, it is not intended that non-participating parties should be expected to monitor all Tribunal proceedings to determine if a written submission should be made. Rather, this subclause provides a mechanism for the decision-maker to make written submissions in relation to a proceeding of a kind covered by an election notice where they consider it necessary or desirable to do so. It is expected that this would occur by exception, likely due to a particular feature or circumstance of that proceeding that comes to the attention of the decision-maker during the process of review. 488. Subclause (2) provides that the Tribunal may order a non-participating party to appear before the Tribunal, participate in a proceeding or provide written submissions. The 68

Tribunal may decide to make such an order if it considers it would assist in progressing the proceeding or in making the correct or preferable decision. Examples of where this might occur include if the matter is amenable to dispute resolution, if there are particularly complex questions of jurisdiction on which the Tribunal would benefit from the perspective of the decision-maker, or if the Tribunal wishes to seek clarification or views from the decision-maker on particular matters of relevance to the review. 489. It is not intended that the Tribunal should exercise, or consider exercising, this power in any proceeding of a kind covered by an election notice, simply because the participation of the decision-maker would assist to crystallise the issues. Rather, it provides a mechanism to order the decision-maker to participate where this would be of particular value due to some special circumstance or feature of than proceeding. Rules (under clause 64) and practice directions may also set out criteria for the exercise of this discretion. Clause 64: Rules may deal with elections in relation to participation 490. This clause provides that rules may make provision for the operation of clause 60 to 63 and the operation of Part 4 in relation to parties who are or who have been non-participating parties to proceedings. 491. Subclause (2) sets out a non-exhaustive list of the items that may be covered by the rules and includes requirements for giving election notices or participation notices, publication of election notices or participation notices and matters relating to steps in a proceeding taken while a person is a non-participating party to the proceeding. The rules for example may cover matters such as timing for the provision of an election notice or participation notice to the Tribunal and procedures where the Tribunal agrees to a non-participating party participating in a particular proceeding under clause 62. Clause 65: Certain parties may withdraw from being a party 492. This clause enables a party to withdraw from a proceeding by giving a written notice to the Tribunal. It does not apply to the applicant or, in reviews of a reviewable decision, the decision-maker. The party will cease to be a party if the Tribunal so orders. The Tribunal is required to determine if the party should be allowed to withdraw, as there are some circumstances where it would not be in the interests of a proper review if a party withdrew - such as the review of a child support decision. 493. The note to subclause (2) clarifies that if an applicant wishes to withdraw from a proceeding, they may do so under clause 95. 494. This is a new provision, which seeks to clarify what currently occurs administratively in the AAT. Clause 66: Representation before Tribunal 495. This clause provides that a party may choose another person to represent them in the proceeding (subclause (1)). This subclause is designed to promote accessibility to the Tribunal. A party is not required to seek leave in order to appear with representation and the representative does not need to be a legal representative. The representative can be available to a party in any aspect of the proceeding, including in dispute resolution. This subclause is equivalent to subclause 32(1) of the AAT Act with some 69

changes so that it allows for representation in entire proceedings rather than just at a hearing. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 496. Subclause (2) provides that a person required or permitted to appear before the Tribunal (such as a witness), may have another person represent them provided the Tribunal grants them permission. This subclause is equivalent to subsection 32(4) of the AAT Act. 497. Subclause (3) empowers the Tribunal to remove a person's representative if the Tribunal considers that the representative has a conflict of interest in representing the person, the representative is not acting in the best interests of the person, representation of the person by the representative presents a safety risk to any person, representation of the person by the representative presents an unacceptable privacy risk to any person or the representative is otherwise impeding the proceeding. 498. The note clarifies that if the Tribunal orders the removal of a person's representative, that person may choose another representative - the intention is not to leave a person completely without representation, but rather to ensure that the quality of representation before the tribunal is adequate. Depending on the circumstances of the removal, the party might also elect to have the representative present as a support person, rather than a representative. 499. The AAT Act does not contain an explicit power to remove representatives who are impeding the proceeding but the AAT occasionally does so under its general discretion to manage its own procedure. This subclause has been introduced to clarify the circumstances where this may occur and to ensure the expectations on representatives are clear. The clause intends to balance the potential benefit to parties in the Tribunal of having representation with the need to set reasonable limits where the representative is not assisting the Tribunal, particularly in circumstances where the representative is not subject to any separate professional standards. 500. The Tribunal may use this power to remove a representative, for example, in a child support matter where a representative is a new partner of the party and they present a privacy or safety risk to the other party. It could also be used in circumstances where the representative is not acting in the best interest of the party, but rather seeking to advance their own interests through their involvement in the proceeding. Clause 67: Tribunal may appoint litigation guardian 501. This clause enables the Tribunal to appoint a litigation guardian for a party to a proceeding in circumstances where the party lacks the capacity to understand, conduct, or give adequate instruction for the conduct of the proceedings. This may be for a range of reasons such as the person's age or because they have a disability. A litigation guardian stands in the place of the party, and makes all the decisions about the conduct of the proceedings that would have been made by the party. 502. The clause intends to enhance access to the Tribunal, so that parties can meaningfully participate in Tribunal proceedings. Given the consequences of appointing a litigation guardian, they should only be appointed by the Tribunal where a party does not have any other options available to them for participating in the proceeding, including through the provision of other supports. 503. Subclause (1) stipulates the limited circumstances in which the Tribunal may appoint a litigation guardian, that is that the party does not understand the nature and possible 70

consequences of the proceeding, or they are not capable of adequately conducting or giving adequate instruction for the conduct of the proceedings and the appointment is necessary considering the other options that the party has to participate in proceedings. Paragraph (1)(b) reflects that it is always preferable for a party to be supported to conduct their own proceeding but that a litigation guardian should only be appointed where that support is not available through any other measures. 504. Prior to appointing a litigation guardian, the Tribunal must consider the will and preferences (or likely will and preferences) of the party in relation to whether a litigation guardian should be appointed and, if so, who should be appointed (subclause (2)). This reflects that the agency, will and preferences of the party should always be paramount in making these decisions. 505. Subclause (3) provides the requirements for the litigation guardian themselves. It stipulates that a litigation guardian must be 18 years old, must have no conflict of interest in representing the party, must consent to the appointment, must satisfy any conditions prescribed in the rules and the Tribunal must consider that they can meet the duties of a litigation guardian. This includes that they will give effect to the party's will and preferences (or likely will and preferences) in the proceeding unless this poses a serious risk to the party's personal and social wellbeing. 506. A party may already have a guardian appointed under another law, such as a law of a state or territory. This does not prevent the Tribunal from appointing a litigation guardian for the party to the proceeding (subclause (4)). Where this is the case, the Tribunal may appoint them as a litigation guardian under this clause, to formalise their role in the proceeding and ensure that they are empowered to undertake the duties of a litigation guardian. 507. Subclause (5) prescribes the role of the litigation guardian, being to fully stand in the shoes of the party in proceedings. To achieve this, paragraph (5)(a) provides that where a litigation guardian has been appointed, the party may only participate in the proceeding through that litigation guardian. This ensures the party has 'one voice' in the proceeding. Paragraphs (5)(b) and (c) also confers all obligations and rights of the party in relation to the proceeding on the litigation guardian, including for example: • the litigation guardian may do anything that the party would be ordinarily allowed to do in the proceedings • if the individual is legally represented, the litigation guardian should provide instructions to the lawyer on the party's behalf. 508. Subclauses (6), (7) and (8) provide the duties of the litigation guardian, with the goal of preserving the party's autonomy to the greatest extent possible and ensuring the litigation guardian is acting in the party's best interests. The subclauses require the litigation guardian to give effect to the party's will and preferences or likely will and preferences (subclause (6)) except if doing so would pose a serious risk to the party's personal and social wellbeing (subclause (7)). If party's will and preferences or likely will and preferences cannot be ascertained, or if acting on them would pose a serious risk to the party's wellbeing, the litigation guardian is obliged to act in a manner that promotes the personal and social wellbeing of the party (subclauses (7) and (8)). 509. Subclause (9) provides that a litigation guardian can resign from the role by providing written notice to the Tribunal. 71

510. Subclause (10) prescribes the circumstances in which the litigation guardian can be removed, again aiming to promote a party's autonomy and wellbeing. The first of these circumstances is that the party requests a different person to be their litigation guardian (paragraph (10)(a)). The Tribunal may also order the removal of the litigation guardian if the Tribunal considers that the party does understand the nature and possible consequences of the proceeding and is capable of conducting or giving adequate instructions for the conduct of the proceeding (paragraph (10)(b)). This could occur where a party may have been temporarily unable to meaningfully participate in the proceeding, and then becomes capable of doing so (thereby removing the need for a litigation guardian). 511. The Tribunal may also remove a litigation guardian if the Tribunal considers that the litigation guardian has a conflict of interest in representing the party, has not complied with their duties in representing the party, poses a safety or unacceptable privacy risk to any person or is otherwise impeding the Tribunal. These circumstances are consistent with the circumstances where a representative can be removed under subclause 66(2). 512. Subclauses (11) and (12) outline that the rules may provide for matters relating to litigation guardians, including (but not limited to) costs and the service of documents on a party who has a litigation guardian. For example, the rules may specify that documents that need to be served on a party during the course of proceedings must also be served on the litigation guardian. 513. This provision rectifies a current gap in the AAT Act, which does not provide for the appointment of a litigation guardian. It has been drafted with reference to the findings and recommendations of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. Clause 68: Tribunal may appoint interpreter 514. This clause provides for the appointment of an interpreter for a party or a witness appearing before the Tribunal. The clause aims to promote the accessibility of the Tribunal and provide support for a diverse range of users, including those with limited English language skills or with a hearing impediment. 515. Subclauses (1) and (2) provide that if a person appearing at a Tribunal case event requests it, the Tribunal must appoint an interpreter, unless the Tribunal considers that the person does not need an interpreter to communicate with the Tribunal or to understand evidence and submissions given to the Tribunal. 516. Subclause (3) provides that the Tribunal may appoint an interpreter on its own initiative if it considers that the person requires an interpreter to communicate with the Tribunal or to understand evidence and submissions given to the Tribunal. This enables the Tribunal to ensure that parties and witnesses are able to participate effectively in the proceeding, including where they are unaware of their ability to request an interpreter or choose not to make such a request for any reason. 517. The Tribunal is prevented from appointing somebody as an interpreter for a person if they have a conflict of interest in acting as an interpreter for that person (subclause (4)). For example, if an interpreter has provided personal interpretation services for a party to the proceeding, it may not be appropriate for them to be appointed as an interpreter in the proceeding. 72

518. Subclause (5) clarifies that this clause does not limit the power of the Tribunal to appoint an interpreter in any other circumstance it considers appropriate. 519. Subclauses (6) and (7) provide that the Tribunal may require an interpreter to give an oath or affirmation, administered by a member or staff member, that they will give a true interpretation. 520. This provision seeks to clarify what currently occurs administratively in the AAT. The clause is equivalent to section 366C of the Migration Act however it has been adjusted so that it applies to all proceedings in the Tribunal. Division 6--Tribunal powers Subdivision A--Hearings and evidence 521. Subdivision A of the Bill includes provisions that relate to the conduct of a hearing and the provision of evidence in a hearing. Many of the clauses have been drawn from the AAT Act. Clause 69: Hearings to be in public unless practice directions or Tribunal order require otherwise 522. This clause provides that, as a default, the hearing of a Tribunal proceeding must be in public, except in certain circumstances (subclause (1)). Those circumstances are where practice directions specify (subclause (2)) or the Tribunal orders (subclause (3)), that: • the hearing (or a part of it) is to be in private, and • that only certain persons can be present for the hearing. 523. Reference to the hearing of a proceeding refers to the substantive hearing of a matter - directions hearings do not need to be in public (see clause 4). 524. A practice direction that may be issued by the Tribunal under subclause (2) may specify that all hearings of a particular kind are to be in private. The practice direction may then go on to specify the persons who can be present for the hearing. 525. The Tribunal must only make orders under subclause (3) after taking into account the considerations outlined in clause 71(see below). 526. Clause 69 is equivalent to subsections 35(1) and (2) of the AAT Act, with the addition of providing that the practice directions may prescribe when a hearing must be in private. This recognises the important principle of transparency and open justice in the Tribunal, while also acknowledging that there are many circumstances in which a private hearing is justified. Allowing these rules to be specified in practice directions offers clarity to applicants and potential applicants as to when they may expect their hearing to be held in private, and when they must apply for a specific order if they wish to seek a private hearing. Clause 70: Tribunal may restrict publication or disclosure of information 527. This clause empowers the Tribunal to restrict the publication or disclosure of certain information. It is equivalent to subsections 35(3) and 35(4) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 73

528. Subclause (1) empowers the Tribunal to order that information that might reveal the identity of parties, witnesses, and persons related or otherwise associated with them must not be published or disclosed. This could be used, for example, to prevent the publication of the name of a party or witness who is experiencing family violence. 529. Subclause (2) allows the Tribunal to order that information relating to the proceeding that comprises evidence, or is information given to the Tribunal, must not be published or disclosed. 530. Subclause (3) provides that an order under subclause (2) may prohibit or restrict the publication or disclosure to some or all of the parties to the proceeding. Subclause (4) provides that the Tribunal can make the above non-publication or non-disclosure orders on its own initiative, or upon application by a person. 'Person' in this subclause can include people who are not parties to the proceeding: they may be witnesses or people otherwise referenced in a Tribunal decision. 531. The notes in this clause clarify that when making a non-disclosure or non-publication order, the Tribunal must take into account the considerations outlined in clause 71 (see below). The notes also specify that breaching a non-publication or non-disclosure order under this clause is an offence under clause 119. Clause 71: Requirements for Tribunal orders about hearings, publication and disclosure 532. This clause sets out requirements that apply to the Tribunal's consideration of an order for a hearing to be held in private or for certain information to not be published or disclosed under clauses 69 and 70. Subclause (1) provides that the Tribunal must comply with any requirements specified in the practice directions (subclause (1)). 533. Subclause (2) provides that the Tribunal must also have regard to the following considerations when deciding whether to make the order: • the principle that it is desirable that hearings of proceedings are held in public • the principle that it is desirable that evidence given before the Tribunal is made available to the public • the principle that it is desirable that evidence given before the Tribunal and the contents of documents given to the Tribunal are made available to all the parties to the proceeding • any reason in favour of making an order including the circumstances of the parties to the proceedings and other persons connected to the proceeding, the harm that could result to a person if an order is not made and in relation to an order under clause 70, the confidential nature (if any) of the information • any other matters that the Tribunal considers relevant 534. Subclause (2) requires the Tribunal to balance the principles of open justice and procedural fairness with the circumstances of the parties or any persons connected to the proceeding, the harm that could result to a person if an order is not made, the need to keep information confidential and any other relevant considerations. The Tribunal may need to consider factors such as the particular vulnerabilities of parties and persons connected to the proceeding, whether the disclosure of information may cause reputational damage to parties or persons connected to the proceeding, the need to keep sensitive personal information private and whether the safety of a party or 74

person connected to the proceeding may be compromised (such as where there is family domestic violence) if the order is not made. 535. Subclause (2) is equivalent to subsection 35(5) of the AAT Act. Refinements have been made to clarify and modernise the drafting and to require the Tribunal to ensure an adequate balance between the principle of open justice and the need to protect sensitive, confidential and/or personal information. Clause 72: Tribunal must notify parties of Tribunal case event 536. This clause requires the Tribunal to give written notice to the parties before a Tribunal case event, including the date, time and place of the case event (subclause (1)). Subclause (2) stipulates that the Tribunal does not need to notify a non-participating party (refer clause 61). The clause promotes procedural fairness, by ensuring all participating parties are informed of upcoming Tribunal case events, thereby giving the parties the opportunity to attend these events to present their case to the Tribunal. There is no equivalent provision in the AAT Act. 537. Under clause 83, the Tribunal may remove certain parties from a proceeding if the Tribunal is satisfied that the party received appropriate notice of the date, time and place of the Tribunal case event and the party fails to appear at that event. Similarly, under clause 99, the Tribunal may dismiss an application if the Tribunal is satisfied that the applicant received appropriate notice of the date, time and place of the Tribunal case event and the applicant fails to appear at that event. Clause 72 is a related provision to clauses 83 and 99 as it places an obligation on the Tribunal to provide the parties with notice of the Tribunal case event. 538. Tribunal case events include hearings, directions hearings and dispute resolution processes (see the definition of Tribunal case event in clause 4). Clause 73: How a party may appear at a Tribunal case event 539. This clause provides the Tribunal with the power to order that a party to a proceeding is required to appear 'personally' even though they may have a representative to appear on their behalf (subclause (2)). The clause is not intended to be used to prevent a person appearing through a representative. Instead, it allows the Tribunal to ensure that the party is present at the case event. This may be important, for example, if the Tribunal needs to satisfy itself that the representative is acting in the best interests of the party or if the Tribunal needs to question the party directly. For the purposes of this provision, appearing personally could include appearing virtually, such as via video conference. The Tribunal is not able to require the decision-maker appear personally at a case event (subclause (3)). Clause 74: Tribunal may summon person to give evidence or produce documents 540. This clause allows the Tribunal to summon a person to provide information, or produce documents or things that are relevant to a proceeding in the Tribunal. 541. Subclause (1) provides that where 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 can require the person to appear before the Tribunal to give evidence, or provide that information, document or thing in accordance with the summons. A summons is served on a person in writing (for methods of service, see section 28A of the Interpretation Act). The ability to issue a summons also applies to 75

dispute resolution processes. This subclause is equivalent to subsection 40A(1) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 542. The Tribunal may, for example, issue a written summons requiring an occupational therapist who completed a functional assessment for an existing NDIS participant to appear and give evidence before the Tribunal in relation to that assessment. 543. Subclause (2) stipulates that the day to appear before the Tribunal to give evidence or produce any document or thing specified in the summons must be at least 14 days after the day the summons is given to the person, unless that person consents to a shorter time period for compliance. This balances the need for conducting proceedings in a timely manner, consistent with the Tribunal's objective, with the need to ensure a person is given a reasonable opportunity to respond to a notice. This is particularly important noting that failure to comply with a summons is an offence (clause 116). 544. The Tribunal may issue a summons on its own initiative, or at the request of a party (subclause (3)) - although the Tribunal may refuse such a request (subclause (4)). These subclauses reflect the principles that the Tribunal has discretion over its own procedure (clause 49) and may inform itself as to the matters under consideration as it considers appropriate (clause 52). 545. If a person produces a document or thing earlier than the day specified in the summons, they need not appear before the Tribunal unless the summons (or another summons) requires it, or the Tribunal specifically orders it (subclauses (5) and (6)). These subclauses are equivalent to subsection 40A(3) of the AAT Act. They have minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provisions. 546. Note 1 under subclause (6) signals that a failure to comply with a summons might constitute an offence against clause 116. 547. Note 2 under subclause (6) notes that a summoned person may be entitled to be paid fees or allowances (clause 77), but is not excused from complying with the summons if they disagree with the amount paid. Clause 75: Tribunal may take evidence 548. This clause permits the Tribunal to take evidence, including on oath or by affirmation, inside or outside Australia. This is important because a person who will give evidence may be located outside Australia. This clause enables the Tribunal to obtain evidence from those persons even though they are overseas. This clause is equivalent to subsections 40(1)(a) and 40(4)(a) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 76: Taking evidence on oath or affirmation 549. Paragraph 76(1)(a) permits the Tribunal to compel a person appearing before the Tribunal to take an oath or affirmation. Paragraph (1)(b) provides that an oath or affirmation may be administered by a member or staff member. An oath or affirmation is an undertaking that the evidence the witness will give will be true (subclause (2)). Conferring power on the Tribunal to compel a witness to take an oath 76

or affirmation supports the reliability of evidence given in a proceeding. Subclause (1) and (2) are equivalent to subsections 40(2) and (3) of the AAT Act. They have been updated to reflect modern drafting practices. These do not affect the operation or effect of the provisions. 550. Consistent with the Tribunal's objective in paragraph 9(c) that the Tribunal must be accessible and responsive to the diverse needs of parties to the proceedings, subclause (3) provides that if a person takes an oath or affirmation, they can tender evidence in the form of a written statement, and verify that statement by oath or affirmation. There is no equivalent provision in the AAT Act. 551. The notes to this clause signal that a person might commit an offence if they provide false or misleading evidence (clause 118), or if they fail to take an oath or affirmation when required to by the Tribunal (clause 117). Note 2 also directs readers to Part III of the Crimes Act 1914, which creates various offences that apply to tribunal proceedings. Clause 77: Payment of witness fees and allowances 552. This clause provides that a person required to give information or produce a document or thing to the Tribunal by the Bill, another Act or an instrument is to be paid, in accordance with the rules, any fees and any allowances for travelling and other expenses that are prescribed by the rules (subclause (1)). 553. Subclause (2) permits rules to be made in relation to entitlements for fees and allowances. These rules can include rules that relate to the circumstances when a person is to be paid and is not to be paid a fee or allowance, who must pay the fee or allowance and timing for payment. The rules may for example: • provide that the Commonwealth is required to pay all or part of a prescribed fee • provide that the parties to a proceeding are not entitled to a fee • limit the types of information requirements giving rise to a fee entitlement • specify the amount of the prescribed fee • empower the Tribunal to determine certain matters on a case by case basis, rather than having those matters specified in the rules. 554. It is appropriate that the arrangements for fees and allowances are included in rules. This allows for sufficient flexibility to reconsider fees as appropriate, adjust amounts according to inflation and provide specific rules for particular types of matters as required. 555. This clause is equivalent to section 67 of the AAT Act. It provides, however, that the rules, rather than regulations, will prescribe fees. Clause 78: Inspection of documents produced under summons 556. This clause provides a general rule that a party may inspect or take a copy of a document or thing produced under summons if the Tribunal permits or in the circumstances specified in practice directions (subclause (1)). This aims to promote procedural fairness, by giving parties access to evidence used to decide their matter. Enabling the practice directions to provide circumstances where, if no party objects, parties may inspect documents produced under summons without seeking leave of the Tribunal streamlines proceedings and facilitates access to these documents. 77

557. A party cannot inspect or take a copy of a document or the thing produced under summons if: • it is subject to a public interest certificate under clause 91 (subclause (2)). If the information is subject to a public interest certificate, the Tribunal decides whether to allow access to the documents in accordance with subclauses 91(6), (7) and (8). • the inspection or copying of the document would result in disclosure of information that is otherwise prohibited by law (subclause 78(3)), such as where it would disclose information contrary to a non-publication or non-disclosure order under clause 70. 558. Subclauses (4), (5) and (6) provide an exception to this general rule, specifying that if the summoned person provides the Tribunal with a written objection to the inspection or copying of the documents (and outlines the reasons for their objection), the Tribunal must decide whether the requesting party should have access to the information or documents. Subdivision B--Management of proceedings Clause 79: Tribunal may give directions in relation to procedure for a proceeding 559. This clause enables the Tribunal to issue directions relating to the procedure to be followed in proceedings (subclause (1)). It gives the Tribunal power to direct and control how matters progress through the Tribunal. 560. Without limiting what orders the Tribunal may make, subclause (2) provides that the Tribunal may make orders requiring a party to give information or documents to the Tribunal or another party; requiring a party to give a statement of matters or contentions upon which they intend to rely; limiting the issues on which expert evidence may be given; limiting the number of experts to report on an issue; requiring the parties to a proceeding to appoint a single person to provide expert evidence; limiting the number of persons able to give evidence; limiting the number of persons appearing at a dispute resolution process; requiring experts to give evidence concurrently; placing time limits on the giving of evidence or the making of oral submissions; or limiting the length of written submissions. 561. Paragraph (2)(k) also enables the Tribunal to make an order that limits a party's ability to give information or documents (to the Tribunal or another party) within a specified time period before the proceeding's hearing. For example, the order may provide that the respondent must provide all information to the Tribunal no later than one week before the substantive hearing. This aims to encourage the timely production of information and documents to the Tribunal and the parties to a proceeding. It is to be used by the Tribunal to prevent the production of a large volume of documents immediately before a hearing unless this timeframe is unavoidable for the party. Producing a large number of documents immediately before a hearing may disadvantage other parties who have to inspect the documents in shortened timeframes, impacting the fairness of the proceeding for those parties, or may result in unnecessary delays if the hearing must be postponed to allow proper consideration of the documents. 562. Subclause (3) enables the Tribunal to order the decision-maker in a review of a reviewable decision to give the Tribunal or another party a statement, setting out the grounds the decision-maker considers support their position in the review. 78

563. Subclause (4) provides that the Tribunal is not prevented from making an order under this clause by the procedural fairness requirements in clause 55, which oblige the Tribunal to give each party a reasonable opportunity to present their case, inspect documents and make submissions about those documents. Matters such as procedural fairness and a party's right to present their case should be considered by the Tribunal in making the direction, though they do not prevent it. 564. This clause is similar to subsection 33(2A) of the AAT Act with changes to respond to stakeholder feedback, including to provide additional examples of directions that the Tribunal can make in subclause (2). Clause 80: Tribunal may hold directions hearing 565. This clause enables the Tribunal to hold a directions hearing during a proceeding. The purpose of a directions hearing is to clearly outline for all parties what actions they must take to progress the matter and prepare for a hearing, including the timeframes they must do things by. 566. During a directions hearing, the Tribunal might deal with issues relating to: • the progress of an application including any failure to comply with requirements to lodge documents or other material • access to documents required to be produced under summons, and • the conduct of the hearing. 567. The clause is equivalent to subsection 33(1A) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision Clause 81: Tribunal may proceed without absent party 568. This clause provides that, if the Tribunal is satisfied a party received appropriate notice of the time and place of a case event, the Tribunal can proceed with a case event in the absence of that party. This is to prevent the Tribunal from having to postpone or reschedule the case event where a party makes the active choice not to attend it. Clause 72 requires the Tribunal to give parties notice of case events. This clause is equivalent to paragraph 40(1)(b) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 569. For determining when the applicant is taken to have received notice of the case event, please refer to sections 160 and 161 of the Evidence Act. Clause 82: Tribunal may adjourn Tribunal case event 570. This clause enables the Tribunal to adjourn a case event that relates to a proceeding from time to time. It ensures the Tribunal has the power to manage its case events effectively in response to changing circumstances of the Tribunal or parties, or any other reason. This clause is equivalent to paragraph 40(1)(c) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 79

Clause 83: Tribunal may remove party from proceeding if party fails to appear or does not comply 571. This clause enables the Tribunal to remove a party to the proceeding (except the applicant or a non-participating party), if they fail to appear at a Tribunal case event during the proceeding. To make this order, the Tribunal must be satisfied that the party received appropriate notice of the time and place of the case event (subclause (1)). Clause 72 requires the Tribunal to give parties notice of case events. Appearance at the case event can be either in person or by a representative. Note that the term 'in person' covers virtual and physical attendance. 572. Subclauses (3) and (4) enable the Tribunal to remove a party (except the applicant) if they fail to comply with this Bill or an order under the Tribunal in relation to the proceeding. The inclusion of this provision responds to stakeholder feedback about the need for the Tribunal to be able to impose consequences on parties, other than the applicant, for failure to comply with directions in order to promote compliance and the efficient management of proceedings. 573. Subclause (5) enables the Tribunal to reinstate as a party a person who has been removed as a party from the proceeding, if the Tribunal orders it (on its own motion or upon application by the person). There may be circumstances where a party has been removed from the proceeding and reinstating them as a party to the proceedings is warranted. For example, if a party repeatedly fails to appear at Tribunal case events and the Tribunal removes them from the proceeding, however it later becomes apparent that the party was unable to attend because of a serious illness, the Tribunal may wish to reinstate the party. Clause 84: If applicant dies or is bankrupt, wound up or in liquidation or administration 574. This clause sets out how the Tribunal must deal with a proceeding in which the applicant has died or become bankrupt (if they are an individual), or where (in the case that the applicant is not an individual) the applicant is wound up, ceases to exist, or becomes subject to any form or liquidation administration (subclause (1)). There is no equivalent provision in the AAT Act. As a result, the AAT has a lack of clarity about progressing or dismissing such applications. 575. In these circumstances, a person representing the applicant for the substantive application may request in writing that the proceeding continue (paragraph (2)(a)). If the substantive application is for review of a decision, a person whose interests are affected by the decision (see clause 17) may request in writing that the proceeding continue (paragraph (2)(b)). 576. If a request to continue the proceeding is made under subclause (2), the Tribunal may give such orders it considers appropriate in the circumstances (subclause (3)). This may be an order that the application should continue, with the person who has requested continuation being substituted as the applicant, and any other orders as are necessary to progress the matter. 577. Subclause (4) provides that if the Tribunal does not receive a request to continue the application within three months of the Tribunal becoming aware that the applicant has died, gone bankrupt, ceased to exist or been wound up, it may dismiss the application. This aims to allow the Tribunal to dismiss applications which are no longer being 80

actively pursued, so the applications do not simply sit on the Tribunal's case list indefinitely despite no longer having an applicant to progress them. Clause 85: Tribunal may remit decision to decision-maker for reconsideration 578. This clause allows the Tribunal to remit the decision under review by the Tribunal to the decision-maker for reconsideration (subclause (1)). They may do this at any time during a proceeding for a review of a reviewable decision. If the Tribunal remits the matter in this way, the decision-maker must reconsider the decision and either affirm it, vary it, or set it aside and substitute a new decision (subclause (2)). Once the decision-maker has reconsidered and made their decision, the proceeding in the Tribunal resumes (subclause (3)). The applicant may choose to proceed with the application or withdraw it under clause 95 (subclause (4)). 579. When continuing with the proceeding, the Tribunal is to review the updated decision as updated by the decision-maker (subclause (5) and (6)). That is, if the decision- maker varies the decision or substitutes a new decision, the application for review before the Tribunal will be the updated decision, and not the decision that was under review before the decision-maker's reconsideration. 580. To ensure this remittal process does not unduly delay proceedings, the decision-maker must reconsider the remitted decision within the timeframe specified by the Tribunal, and the Tribunal may extend this time period if the decision-maker applies for an extension (subclause (7) and (8)). If the decision-maker fails to make a decision within the specified time period (taking account of any extension granted by the Tribunal), the original decision is taken to be affirmed (subclause (9) and (10)), and the review proceeds. 581. This clause is equivalent to section 42D of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. The clause promotes efficient reviews by ensuring that, if there is a major change in circumstance, legislation or other reason to suggest that reconsideration by the decision-maker is necessary, the reconsideration can occur without delay. This avoids the Tribunal taking additional time to review a decision that has been overtaken by events. It might also be used, for example, if the decision under review is time-critical and it is apparent that an aspect of it needs to be revisited. Example 582. Person A, who is a participant under the NDIS, applies to the Tribunal for review of an NDIA decision not to include funding for a wheelchair and additional funding for physiotherapy under their participant statement of supports. During a Tribunal dispute resolution process, Person A and the NDIA agree that Person A should receive funding for a wheelchair. However, the issue of additional funding for physiotherapy is still in dispute and progresses to a substantive hearing. In order to enable Person A to receive funding for the wheelchair in their statement of supports, the Tribunal remits the decision back to the NDIA for reconsideration under clause 85. The NDIA varies the original participant statement of supports to include wheelchair funding and issues an updated decision. The proceeding then continues in the Tribunal, and the Tribunal considers only the remaining issue of additional funding for physiotherapy. 81

Clause 86: Tribunal may vary or revoke Tribunal order 583. This clause makes it clear that the Tribunal's power to make an order includes the power to revoke or vary the order. It is included for the avoidance of doubt and applies to any order the Tribunal may make under this Act or any other legislation. Subdivision C--Dispute resolution processes 584. This subdivision provides for dispute resolution processes in the Tribunal, to promote the objective of providing an informal, flexible, and non-adversarial method of merits review. Under clause 4, a dispute resolution process is a procedure or service for the voluntary resolution of disputes, and includes conferencing, mediation, neutral evaluation, conciliation, arbitration and any other procedure or service specified by the President in practice directions. 585. Provisions in this subdivision are broadly equivalent to sections 34A, 34E, 34F and 34H of the AAT Act. Clause 87: Tribunal may refer to dispute resolution process 586. This clause allows the Tribunal to direct that parties undertake dispute resolution in relation to a proceeding, part of a proceeding, or any matter arising out of a proceeding. This order may be made at any time during the proceeding (paragraph (1)(a)). Paragraph (1)(b) provides the Tribunal may direct that a dispute resolution process be conducted by a member, a registrar, or a person engaged to conduct dispute resolution by the Tribunal under subclause 90(1). 587. The note after paragraph (1)(b) clarifies that a party that is not a participant to the proceeding is not required to participate in a dispute resolution process unless the Tribunal orders them to do so under clause 63. This clarifies that the Tribunal can undertake a dispute resolution process, such as conferencing, with a single party in order to assist with case management and better understand the issues in the review. It may also undertake a dispute resolution process, such as conferencing or mediation, with the parties other than the decision-maker if the decision-maker is a non- participating party. For example, a mediation between the parties to a review of a child support decision. 588. Subclause (2) provides that parties participating in the dispute resolution process must act in good faith throughout the dispute resolution process. This subclause is equivalent to subsection 34A(3) of the AAT Act but has been altered to reflect that not all parties to a proceeding may be present at the dispute resolution process. For example, if the decision-maker is a non-participating party and does not attend the dispute resolution process, the requirement to act in good faith in relation to that process has no relevance. 589. Subclause (3) provides that, despite subclause (1), the Tribunal cannot direct or refer a matter, or any part of a matter, where it is before the guidance and appeals panel to a dispute resolution process unless that process is conferencing. Given a matter is only intended to go before the guidance and appeals panel in rare and exceptional circumstances, dispute resolution processes would not be appropriate and may result in undue delay in decisions. In particular, if the matter is a review of a Tribunal decision that has been referred to the guidance and appeals panel under clause 128, the parties may have attempted dispute resolution when the matter was first reviewed. Additionally, matters are referred to the guidance and appeals panel because they 82

involve an issue of systemic significance requiring more authoritative guidance, or because there may have been a material error in the decision. It is important that these matters result in a published decision offering guidance to others. The availability of conferencing as a dispute resolution process for a matter before the guidance and appeals panel is intended to preserve the utility of conferencing not only to resolve a matter between parties, but also its use an effective case management tool for the Tribunal. 590. It is open to the guidance and appeals panel to adopt a decision the terms of which have been agreed by the parties under clause 103. This ensures that where a decision- maker has agreed to make a more favourable decision to the applicant, the operation of that decision is not delayed. However, the guidance and appeals panel is not required to actively encourage an agreed resolution for the reasons outlined above. Clause 88: Evidence in dispute resolution process not admissible elsewhere 591. Dispute resolution processes are only effective when open communication is encouraged. To allow for a dispute resolution process to work as intended, subclause (1) provides that evidence of things said or done cannot be used in any court or tribunal, including the proceeding to which the dispute resolution relates. This extends to evidence of information disclosed for the purpose of a dispute resolution process, such as a case outline that a party may prepare and give to the Tribunal prior to the dispute resolution process for the purpose of its facilitation. If the Tribunal considers that orders or directions given during a dispute resolution process should be admissible, the Tribunal should seek the agreement of parties that the orders or directions are exempted from the general rule in subclause (1). 592. Subclause (1) only covers things said or done that are for the sole purpose of a dispute resolution process. This is to ensure that anything that occurs that is incidental to a dispute resolution process, or occurs with the common understanding that is it not solely applicable that process, may remain admissible. 593. Subclauses (2) and (3) prescribe exceptions to this broad principle and allows evidence to be adduced in proceedings when: • both parties agree, or • a neutral evaluation report has been produced and no party has notified the Tribunal before the start of the hearing that they object to the report being admitted. 594. This clause is equivalent to section 34E of the AAT Act. It has minor updates to reflect modern drafting practices and to clarify that the protection extends to things done or said, or information disclosed, for the purpose of a dispute resolution process (in addition to things done or said and information disclosed at the dispute resolution process). Clause 89: Eligibility of person conducting dispute resolution process to sit as a member 595. This clause prevents a member from continuing to conduct a proceeding if they have conducted a dispute resolution processes in relation to that proceeding, if a party to the proceeding notifies the Tribunal that they object to the member's continued participation in the proceeding. This ensures that the protection in clause 88 is not 83

undermined, as the member will already be privy to information and things done and said at or for the dispute resolution process. 596. The note under this clause clarifies that where a party objects to the member's participation in the proceeding, the President may reconstitute the proceeding under clause 43 and clause 45. 597. This clause is equivalent to section 34F of the AAT Act, updated to reflect modern drafting practices and clarify its operation. Clause 90: Engagement of persons to conduct dispute resolution processes 598. This clause allows the Principle Registrar to engage a person to conduct a dispute resolution process where it is appropriate (subclause (1)). This is conditional on the Principle Registrar being satisfied that the person has the relevant qualifications and experience to conduct that kind of dispute resolution process (subclause (2)). This clause is equivalent to section 34H of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Division 7--Public interest certificates and interventions 599. This Division sets out a public interest certificate regime to prevent the disclosure or publication of certain information in circumstances where the Attorney-General of the Commonwealth or State or Territory certifies that it would be contrary to the public interest for that information to be disclosed - for example, if the information could prejudice the security, defence or international relations of Australia or would disclose the deliberations of Cabinet. 600. This regime is an important aspect of information protection in the Tribunal, together with the powers in Subdivision A of Division 6 of Part 4 (private hearings and non- disclosure/non-publication orders) and Division 2 of Part 11 (confidentiality obligations of entrusted persons), ensuring an adequate balance between the principle of open justice and the protection of sensitive, confidential and/or personal information. Clause 91: Disclosure of information--public interest certificate 601. This clause provides that the Attorney-General of the Commonwealth, of a State, or of the Australian Capital Territory or the Northern Territory may certify in writing that it would be contrary to the public interest for specified information, or the content of a document, to be disclosed in a Tribunal proceeding. It is equivalent to sections 36 and 36B of the AAT Act, but deals with public interest certificates issued by Commonwealth and State and Territory attorneys-general in one consolidated provision, with other minor updates to modernise the drafting. 602. The certification can be made if the disclosure would be contrary to the public interest for one or more of the following reasons: • the disclosure would prejudice the security, defence or international relations of the Commonwealth (paragraph (1)(a)) • the disclosure would disclose deliberations of the Cabinet or a Cabinet Committee, or of the Cabinet or a Cabinet Committee of a State if Territory (paragraphs (1)(b) and (2)(a)) 84

• any other reason that could form the basis for a claim by the Crown in right of the Commonwealth, State or Territory in a judicial proceeding that the information should not be disclosed (paragraphs (1)(c) and (2)(b)). Effect of certificate 603. Subclause (3) stipulates that a person must still provide that information or document to the Tribunal, even though it is subject to a public interest certificate, if this Bill requires them to do so (for example, if it is the subject of a summons issued under clause 74). 604. However, subclause (4) obligates the Tribunal to do all things necessary to ensure that the information is not disclosed or given to anyone other than a member, staff member or the Principal Registrar of the Tribunal in the course of performing their duties. When the information is in a document, the Tribunal must also return the document to the person who produced it as soon as practicable after considering it. 605. Subclause (5) is included to assist readers and clarify that a public interest certificate is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act. Tribunal may allow disclosure in limited cases 606. Subclauses (6) and (7) provide the Tribunal discretion to disclose information or documents which are subject to a public interest certificate to any or all parties, in very specific circumstances. This discretion exists only where the certificate was given for a reason other than those set out in paragraphs (1)(a), (1)(b) or (2)(a) (for the Attorney-General of the Commonwealth, national security or Cabinet considerations; for the Attorney-General of a State or Territory, Cabinet considerations). 607. Before exercising the discretion to disclose information or documents subject to a public interest certificate, the Tribunal must consider certain factors. It should primarily base its decision on the principle that effective operation of the Tribunal relies on parties being aware of all relevant matters and information. It should also have regard to any reason specified by the Attorney-General in the public interest certificate as to why disclosure would be contrary to public interest. 608. Subclause (8) provides that when the Tribunal is deciding whether to disclose information or documents that are subject to a public interest certificate, the Tribunal must be constituted by at least one member who is a Judge or Deputy President, and as if the decision were a separate proceeding. This reflects the seriousness of Tribunal decisions on public interest certificates. Exclusion of other laws 609. Subclause (9) clarifies that this clause excludes the operation of any other public interest laws that would otherwise apply in relation to the disclosure of the information or documents. Clause 92: Attorney-General may intervene for public interest reasons 610. This clause allows the Attorney-General (of the Commonwealth, or a State or Territory) to intervene in the hearing of a proceeding to inform the Tribunal that the answering of a specific question would disclose information that would be contrary to 85

the public interest for a specified reason (listed in clause 91). This has the effect of excusing the person giving evidence from answering the question. 611. However, subclause (3) provides that the person must still answer the question in either of the following circumstances: • if the reason for the certificate is covered by paragraphs 91(1)(c) or (2)(b) and the Tribunal decides that answering the question would not be contrary to the public interest • the FCA decides on an appeal from the Tribunal (under clause 172) or in relation to a reference (under clause 185) that answering the question would not be contrary to the public interest. 612. Subclause (4) provides that when the Tribunal is deciding whether a person is still required to answer a question, the Tribunal must be constituted by at least one member who is a Judge or Deputy President, and as if the decision were a separate proceeding. This reflects the seriousness of Tribunal decisions on public interest certificates. 613. This clause is equivalent to sections 36A and 36C of the AAT Act, but deals with public interest certificates issued by Commonwealth and State and Territory attorneys-general in one consolidated provision. It also has minor updates to modernise the drafting. Clause 93: Attorney-General is party to proceeding 614. This clause provides that an Attorney-General of the Commonwealth or State or Territory is a party to the proceeding in circumstances where the Tribunal needs to decide about a public interest question the Attorney-General has instigated. This includes proceedings where the Tribunal is deciding whether to disclose information that is subject to a public interest certificate (subclause (1)), or deciding whether a party must answer a question that the Attorney-General has objected them answering (subclause (2)). This ensures the Attorney-General is able to take part in the proceeding and make submissions to the Tribunal about the public interest decision. 615. Subclause (1) provides that the Attorney-General (whether of the Commonwealth, or a State or Territory) is a party if they have issued a public interest certificate under clause 91, and the certificate does not specify that the reason for non-disclosure is national security or Cabinet considerations. 616. Subclause (2) provides that the Attorney-General (whether of the Commonwealth, or a State or Territory) is a party to the proceeding if they have informed the Tribunal under subclause 92(1) that answering a question at a hearing would be contrary to the public interest. This clause is equivalent to subsections 36(3A), 36A(2A), 36B(4), 36C(3) of the AAT Act, but combines the provisions to deal with Commonwealth, State and Territory attorneys-general together. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 94: Public interest decisions made by Tribunal 617. This clause requires the Tribunal to provide parties with a statement of reasons, if the Tribunal makes a decision ('the public interest decision') under subclause 91(6) or 92(3)(a) requiring disclosure of information or documents, or the answering of 86

a question, despite an Attorney-General certifying that the disclosure or answering of the question would be contrary to the public interest. It is important for parties to understand the reasons for the Tribunal's decision, given the potential consequences of disclosure of sensitive information or answering of questions despite a public interest certificate. 618. The Tribunal is required to provide these reasons as soon as practicable after making the public interest decision. 619. Subclause (4) provides that for the purposes of a party appealing to the FCA under clause 172, the public interest decision should be treated as though it is a decision in a separate Tribunal proceeding, made by the Tribunal as constituted for the purpose of the public interest decision. This makes it clear that a party may appeal a Tribunal 'public interest decision' separately from appealing the Tribunal's decision on the substantive proceeding. 620. Subclause (5) provides that for the purposes of referring a question of law to the FCA under clause 185, the public interest decision that is referred to the FCA should be treated as a question arising in the substantive proceeding, but treated as having been referred by the Tribunal as constituted for the purpose of the public interest decision. 621. This clause is equivalent to section 36D of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Division 8--Decision 622. This Division sets out the Tribunal's decision-making powers in relation to an application. This includes when an application can be withdrawn or dismissed, the Tribunal's decision on review of an application, Tribunal guidance decisions, and what happens after a decision is made. This includes notification requirements in relation to decisions, publication of decisions and when a Tribunal decision comes into effect. Subdivision A--Withdrawing and dismissing applications 623. This Subdivision sets out the circumstances in which the Tribunal can, or must, dismiss an application, including when an application is deemed to have been dismissed because the applicant has withdrawn the application. This includes where an application is not reviewable, where the applicant does not participate properly in the proceeding and where the application is frivolous or vexatious. It also sets out in what circumstances an application can be reinstated after it is dismissed. Clause 95: Applicant may withdraw application 624. This clause provides that an applicant may withdraw their application at any time, by giving written notice to the Tribunal, or notifying the Tribunal in any manner specified for that application in practice directions (subclause (1)). Subclause (2) clarifies that the Tribunal is taken to have dismissed the application if the applicant withdraws it. Dismissal occurs by operation of the law and does not require a decision by the Tribunal. This dismissal takes effect on the date when the application is withdrawn. 87

625. The clause is equivalent to subsections 42A(1A), (1AA) and (1B) of the current AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 96: Tribunal may dismiss application if parties consent 626. This clause provides that if the parties to the proceeding consent to it, the Tribunal may dismiss an application at any time. This may occur, for example, if the parties have reached an agreement that the Tribunal is not empowered to give effect to. In these circumstances, the parties may consent to the Tribunal dismissing the matter, so that they can then pursue their agreement outside of the Tribunal context. 627. The Tribunal does not need the consent of a non-participating party, as they have elected not to participate in the proceeding. This enables a dismissal to occur by consent of all of the participating parties agree. This provision is equivalent to subsections 42A(1) and (1AAA) of the AAT Act. It has minor updates to reflect modern drafting practices and reflect the introduction of clause 61 concerning non- participating parties. Clause 97: Tribunal must dismiss application if decision is not reviewable decision 628. This clause allows the Tribunal to dismiss an application if it is satisfied the decision is not reviewable. This may be because, for example, the legislation under which the decision is made does not provide for Tribunal review of those decisions, the application is out of time (and no extension is granted), or for other reasons, such as the person who brought the application does not have standing because their interests are not affected by the decision. This clause is equivalent to subsection 42A(4) of the AAT Act. The language has been changed to reflect that the Tribunal must dismiss these applications, as it is unable to proceed with a review of a decision that is not reviewable. Clause 98: Tribunal may dismiss application if fee is not paid 629. This clause enables the Tribunal to dismiss an application if the applicant fails to pay the application fee in the time prescribed in the rules. If no period or no fee is prescribed, this clause would not have any operation. This provision is equivalent to section 69C of the current AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 99: Tribunal may dismiss application if applicant does not appear 630. This clause enables the Tribunal to dismiss an application if the applicant does not appear at a Tribunal case event relating to the application and the Tribunal is satisfied that the applicant received appropriate notice of the date, time and place of the case event. This clause is equivalent to subsection 42A(2) of the AAT Act. It has minor updates to clarify the operation of the decision and how it interacts with other provisions in the Bill, which do not affect the operation or effect of the provision. 631. As noted above, the Tribunal can also proceed to hear a matter in the absence of a party who has failed to appear under clause 81. If a party other than the applicant or decision-maker has failed to appear, they can be removed from a proceeding under clause 83. 88

632. The power to dismiss an application in these circumstances would be exercised sparingly, having regard to the Tribunal's obligation in clause 55 to ensure that parties have an opportunity to present their case. It promotes applicants' attendance at Tribunal case events and provides a mechanism to dismiss applications if the applicant is not engaging with the process. 633. Note 1 refers readers to the definition of Tribunal case event. Note 2 refers readers to clause 73 which sets out how parties may appear at a Tribunal case event. This clause provides that parties may appear in person or through a representative, unless the Tribunal has ordered the applicant to appear personally. 634. For determining when the applicant is taken to have received notice of the case event, please refer to sections 160 and 161 of the Evidence Act. Clause 100: Tribunal may dismiss application if applicant fails to comply with order etc. 635. This clause enables the Tribunal to dismiss an application if the applicant does not proceed with the application, or does not comply with an order of the Tribunal, in a reasonable period of time. This clause is equivalent to subsection 42A(5) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 636. The applicant, as the person who has instigated the application to the Tribunal, has a general obligation to move that application forward and take steps necessary to progress it to its conclusion. If they fail to do this, in a general sense, the Tribunal is empowered under paragraph (a) to dismiss the application. This power aims to promote the efficient use of Tribunal resources, so the Tribunal may dismiss - rather than endlessly following on - applications where the applicant makes no efforts to progress their matter. 637. Paragraph (b) provides that where an applicant fails within a reasonable time to comply with an order of the Tribunal, such as an order made under clause 79, the Tribunal may dismiss the application. What is reasonable must be assessed in each case and includes a consideration of previous non-compliance and delays as well as the interests of other parties. Clause 101: Tribunal may dismiss application if frivolous, vexatious et cetera. 638. This clause enables the Tribunal to dismiss an application if they are satisfied that the application: • is frivolous, vexatious, misconceived or lacking in substance • has no reasonable prospects of success, or • is otherwise an abuse of the Tribunal's process. 639. The Tribunal can dismiss such an application upon request of a party, or on its own initiative. 640. This provision aims to prevent applicants from taking advantage of the Tribunal to advance spurious claims, or making applications where they are not genuinely interested in resolving the matters in dispute (for example, they may be applying purely to intimidate the other party, or extend/circumvent government processes). 89

641. Subclause (2) provides that if the Tribunal dismisses an application under subclause (1), the Tribunal may also order that the applicant must not make a subsequent application to the Tribunal without leave. It can make this order upon request by a party, or by its own initiative. 642. This aims to promote the efficient use of Tribunal resources, by preventing an applicant from repeatedly bringing the same or similar applications, and the Tribunal repeatedly having to go through the process of dismissing the application as frivolous or vexatious (for example). This clause is equivalent to section 42B of the AAT Act but extends the operation of section 42B(2) of the AAT Act so that the Tribunal can also make an order under subclause (2) on its own initiative. Clause 102: Reinstatement of application 643. This clause enables the Tribunal to reinstate an application that it has dismissed (under clauses 20, 84 and 86 to 101), or that is taken to have been dismissed due to the applicant withdrawing it under clause 95, in certain circumstances. 90

Table 1--How and on what grounds a matter can be reinstated Reason for dismissal Reinstatement when Reinstatement in special dismissed in error circumstances Clause 20 - dismissal On the Tribunal's own Not available because application not motion (subclause (2)) made within reasonable time On application of a party (subclauses (5) and (6)) Clause 84 - dismissal if On the Tribunal's own Not available applicant dies or becomes motion (subclause (2)) bankrupt On application of a party (subclauses (5) and (6)) Clause 95 - withdrawal and On the Tribunal's own On application by a party deemed dismissal motion (subclause (2)) who is not the applicant and the Tribunal considers it On application of a party appropriate (subclauses (7), (subclauses (5) and (6)) (8), (9)) Clause 96 - dismissal by On application of a party Not available consent (subclauses (5) and (6)) Clause 97 - dismissal On the Tribunal's own Not available because the decision is not motion (subclause (2)) reviewable On application of a party (subclauses (5) and (6)) Clause 98 - dismissal On the Tribunal's own Not available because fee is not paid motion (subclause (2)) On application of a party (subclauses (5) and (6)) Clause 99 - dismissal if On the Tribunal's own On application by a party applicant does not appear motion (subclause (2)) who is not the applicant and the Tribunal considers it On application of a party appropriate (subclauses (7), (subclauses (5) and (6)) (8) and (9)) Clause 100 - dismissal if On the Tribunal's own On application by a party applicant fails to comply or motion (subclause (2)) who is not the applicant and proceed with application the Tribunal considers it 91

On application of a party appropriate (subclauses (7), (subclauses (5) and (6)) (8) and (9)) Clause 101 - dismissal if On the Tribunal's own Not available application is frivolous or motion (subclause (2)) vexatious On application of a party (subclauses (5) and (6)) 644. In Goldie v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 383 (Goldie), the FCA held that an error, for the purposes of subsection 42A(10) of the AAT Act does not need to have arisen from a fault on the part of the AAT, or a member or staff member of the AAT. However, it must be a fault which induced or led to the error. In Goldie, the fault which led to the application being dismissed in error was a mistake by the solicitor with carriage of the matter. 645. An act or omission by the Tribunal may also give rise to a matter being dismissed in error. In Greening v Repatriation Commission (1998) 52 ALD 110, the AAT decided on considering reinstatement of an application, that the AAT should have put the applicant on notice that her application was in danger of being dismissed because it appeared that she had failed to proceed with her application. At a directions hearing to consider reinstatement, the delay was found to be as a result of her representative and outside of the applicant's control. That the applicant was not given an opportunity to make submissions in this regard and in relation to why her application should not be dismissed meant that the application had been dismissed in error. 646. The AAT has also determined that when considering if an application was dismissed in error, it should consider whether any new information, not known when the application was dismissed, would change whether the application would have been dismissed. That is, the error must bear some relation to the dismissal (Re Bates and Comcare [2015] AATA 199 and Re White & Secretary, Department of Families, Community Services & Indigenous Affairs (2007) 46 AAR 208). 647. An application may be reinstated where the Tribunal thinks it's appropriate, but where no error has occurred in some circumstances (see Table 1 above). This may include where a party to a proceeding is deprived an opportunity to seek a favourable outcome because an application was dismissed because of the conduct of an applicant, including where the applicant withdraws (Plaintiff S183/2021 v Minister for Home Affairs (2022) 96 ALJR 464). 648. An application for reinstatement must be made within 28 days of the application being dismissed, or within such additional time as allowed by the Tribunal in special circumstances. If the Tribunal reinstates a matter on its own initiative, it must do so within 28 days of the matter being dismissed or within such additional time as the Tribunal allows in special circumstances. This could include, for example, where a person has been unable to make an earlier application because they are fleeing a family violence situation or have been in ill health for an extended period of time. 649. The 28-day time limit for reinstatement gives certainty to the parties, so they can move on knowing that the matter will not be reinstated after this point. 92

650. If the Tribunal reinstates the application upon the application of a party, it may also give such orders as it considers appropriate in the circumstances. This may include designating another party as the applicant, in circumstances where the applicant had withdrawn the application and another party sought to reinstate it. 651. This clause is equivalent to 42A(8), (8A), (9), (10) and (11) of the AAT Act. It has been altered to enable the Tribunal to reinstate an application on its own motion. This would allow the Tribunal to act where it becomes aware of circumstances that would warrant reinstating a matter. For example, if a matter was dismissed because the applicant failed to appear at a Tribunal case event, but it later came to the Tribunal's attention that the failure to appear was as a result of an emergency. Given that the Tribunal can dismiss applications in additional circumstances (see clauses 20 and 84), the reinstatement power has also been extended to ensure that it applies in those circumstances (see note under subclause (1)). 652. The power to reinstate a matter can be exercised by any member who is an authorised person and does not need to be exercised by the Tribunal as constituted in relation to the proceeding that was dismissed (see clause 281). This is because it may not always be appropriate for the Tribunal as constituted, if they dismissed the matter in error, to consider whether it should be reinstated. Example 653. Person A makes an application to the Tribunal for review of a reviewable decision. The Tribunal decides under clause 22 that Person B is a party to the proceeding because their interests are affected by the decision. Person A decides to withdraw their application under clause 95 and the application is taken to be dismissed. Person B applies to the Tribunal for reinstatement of the application. The Tribunal may decide to reinstate the application with only Person B as the applicant. Subdivision B--Decisions agreed by parties Clause 103: If parties reach agreement--review of decisions only 654. This clause enables the Tribunal to adopt a decision agreed to by both parties in a review of a decision, without the need to hold or complete a hearing. It recognises the agency of parties, promotes efficient use of Tribunal resources, and avoids an unnecessary hearing if the parties can independently resolve their dispute. It supports the Tribunal objective in paragraph 9(b) that applications be resolved as quickly and with as little formality and expense as possible. 655. The clause is equivalent to sections 34D and 42C of the AAT Act, consolidating provisions dealing with agreements made in the course of a dispute resolution process and at any other time in one provision. 656. Subclause (1) sets out criteria and safeguards that must be met before the Tribunal can adopt a decision agreed to by the parties. Those criteria are that: • the parties agree to the terms of a decision in the proceeding, in relation to a part of the proceeding, or in relation to a matter arising out of the proceeding • the agreed terms are in writing, signed by the parties and provided to the Tribunal • if the terms of agreement are signed during a Tribunal dispute resolution process: a cooling-off period of seven days has passed without any of the parties withdrawing from the agreement, and 93

• the Tribunal has the power to make the decision according to those agreed terms (it is within the Tribunal's jurisdiction). 657. Requiring the agreed decision to be in writing and signed by both parties aims to ensure the agreed decision is the true and accurate intention of the parties. The requirement of a cooling off period for agreements reached during dispute resolution processes aims to ensure the parties have a chance to properly and thoroughly consider the consequences of that agreement, away from the pressure of a mediation room (for example). 658. Subclause (1) is equivalent to subsections 42C(1) and 34D(1) of the AAT Act. However, it omits the requirement that it must appear to the Tribunal to be appropriate to adopt the decision before doing so. This reflects that if the parties agree, the decision is lawful and is within the power of the Tribunal to make, the Tribunal is not required to undertake a further assessment of its terms. 659. Subclause (2) provides that if the parties agree on the terms of a decision of the Tribunal, the Tribunal can adopt those terms without holding or completing a hearing of the proceeding. This is equivalent to subsections 42C(2) and 34D(2) of the AAT Act. 660. Subclause (3) provides that if the parties agree about a part of the proceeding, or a matter arising out of the proceeding, the Tribunal need not deal with that part or that matter at the proceeding's hearing, and may adopt those agreed terms in its final decision. It effectively narrows the issues in dispute at the hearing, and allows a more efficient resolution of the matter. This is equivalent to subsections 42C(3) and 34D(3) of the AAT Act. 661. Subclause (4) enables the Tribunal to vary or revoke a decision made under subclause (1) if the parties agree to the variation or revocation, provided the agreement is in writing and signed by the parties, it appears appropriate to the Tribunal, and the decision as varied is within the Tribunal's power to make. Again, this aims to respect the agency of parties to proceedings. This is equivalent to subsections 42C(5) and 34D(4) of the AAT Act. However, it omits the requirement that it must appear to the Tribunal to be appropriate to vary or revoke the decision before doing so. This reflects that if the parties agree, the variation or revocation is lawful and is within the power of the Tribunal to make, the Tribunal is not required to undertake a further assessment. Subdivision C--Decision on review of reviewable decision 662. This subdivision deals with the Tribunal's decision on review of a reviewable decision. It sets out the kinds of decisions the Tribunal can make on review of a reviewable decision, when the decision of the Tribunal comes into effect, and the effect of the Tribunal's decision on the reviewable decision. It also sets out the circumstances in which the Tribunal can reach a decision without holding a hearing in a proceeding. Clause 104: When this Subdivision applies 663. This clause provides that the Subdivision applies in relation to the Tribunal's review of a reviewable decision. A reviewable decision is a decision made by a government agency or department, that can be reviewed by the Tribunal because another Act or 94

legislative instrument explicitly confers jurisdiction on the Tribunal to review it (see clause 12). Clause 105: Tribunal decision on review of reviewable decision 664. This clause stipulates that when reviewing a reviewable decision, the Tribunal must either: • affirm the decision which means to confirm the decision was the correct or preferable decision • vary the decision, which means to change part of the decision • set aside the decision, and substitute a new decision for the original, or • remit the matter to the decision-maker to reconsider it in accordance with any orders or recommendations of the Tribunal. 665. The Tribunal might remit the matter to the decision-maker when it decides that a person applying for social security benefits, compensation or veterans' entitlements meets the eligibility criteria for those benefits, but the Tribunal would like the decision-maker to calculate the specific quantum of benefits to be provided to them, given its expertise. Example 666. Jobcare is an agency that determines compensation entitlements in cases of workplace injury under the Jobcare Act 2000. Person A applies for compensation from Jobcare for an injury that has prevented them from working for three months. The CEO of Jobcare decides that Jobcare is liable to pay compensation, and assesses the quantum of compensation at $1000 altogether. Person A applies to the Tribunal for review of the decision, on the basis that the amount granted is insufficient. The Tribunal decides that Person A is entitled to additional compensation, but remits the matter to the CEO of Jobcare to re-calculate the precise amount, along with a recommendation that the amount be significantly increased. 667. This clause is equivalent to subsection 43(1) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 106: Circumstances in which Tribunal may reach decision without hearing-- review of reviewable decisions only 668. This clause prescribes the circumstances in which the Tribunal may make a decision in a proceeding without holding a hearing. Before doing so, the Tribunal must consider the documents and things given to it in relation to the proceeding. This clause is equivalent to section 34J of the existing AAT Act, however it also extends the operation of that provision by providing an additional three sets of circumstances where the Tribunal may decide a matter without holding a hearing. 669. The circumstances in which it may make a decision without a hearing include: • if the parties consent to it. • if the only parties to the proceeding are the applicant and decision-maker, the decision-maker is a non-participating party and: • the decision is wholly in favour of the applicant, or 95

• the applicant requests the Tribunal make its decision without holding a hearing. • if a party to the proceeding fails to comply with this Bill or a Tribunal order. • if a party to the proceeding (other than a non-participating party) fails to appear at the case event, despite having received appropriate notice of the case event's time and place. The concept of appropriate notice is equivalent to that in subsection 42A(7) of the AAT Act. 670. In all of the above circumstances, the Tribunal must consider that the issues can be adequately determined in the parties' absence. This means that the Tribunal cannot exercise these powers if there are issues that they consider they cannot resolve without seeking further evidence or submissions from the parties. The Tribunal should also exercise appropriate discretion in exercising this power and consider whether it is appropriate, particularly if there has only been one instance of non-compliance or failure to appear. 671. This clause supports the objective of the Tribunal resolving matters as quickly and with as little formality and expense as a proper consideration of the matters permits, especially given the time and resources required to conduct a substantive hearing. It also provides additional powers to the Tribunal to manage non-compliance with an order or failure to appear of parties other than the applicant and promotes parties' participation in the proceeding. This enables the Tribunal to control proceedings and prevents non-applicant parties from being able to frustrate the Tribunal process. Clause 107: When Tribunal's decision on review of reviewable decision comes into operation 672. This clause is equivalent to subsections 43(5A), (5B) and (5C) of the AAT Act, although it has been extended to deal with where an application is made under clause 203 to have a decision of the Tribunal referred to the guidance and appeals panel. 673. This clause stipulates that, as a default, the Tribunal's decision comes into operation when it is given to the parties. This is a slight departure from the current AAT Act, where this provision only applies in relation to a decision on review of a reviewable decision. This clause applies to all decisions of the Tribunal which would finalise a proceeding. For example, a decision to dismiss a matter, or a decision made with the consent of the parties - see clauses, 96, 97, 98 99, 100, 101 and 103. This is because it provides greater certainty to specify that a decision comes into effect when it is given to the parties, in relation to all Tribunal decisions. 674. However, subclause (2) provides an exception to this general rule, providing that if the Tribunal specifies a later date, the decision comes into operation at that specified date. 675. Subclause (3) provides another exception, in circumstances where the Tribunal has made an order under clause 32, staying or affecting the operation of the original decision, while that decision is being reviewed by the Tribunal. 676. If an order under clause 32 is in place immediately before the Tribunal makes a decision to affirm, vary or set aside a reviewable decision under clause 105, the Tribunal's decision does not come into operation in until either of these things occurs: 96

• if a party appeals the Tribunal's decision on question of law to a court, or applies to have the decision referred to the guidance and appeals panel, the Tribunal's decision does not come into operation until the later of: • the completion of the relevant appeal, or • the period in which an appeal can be made concludes. • in any other case, when the period within which appeals to a court or the guidance and appeals panel can be made concludes. • • 333. For example, if a party applies to have a decision referred to the guidance and appeals panel and the President refuses to make the referral, and the person does not appeal to the FCA, the decision would come into effect 28 days after the person received a statement of reasons for the decision (not counting the time between the application for referral to the guidance and appeals panel and the decision on that application). 677. Subclause (3) only applies to decisions made under clause 105. This is because other decisions, such as a decision to dismiss a matter, should come into effect immediately upon being given to the parties. The effect of a dismissal is to say that the reviewable decision is no longer before the Tribunal. To stay that decision would be to keep it before the Tribunal until such time as an appeal is determined, which would not be appropriate. 678. Subclauses (4) and (8) together provide that any appeal made after the end of the appeal period should not be taken into account when determining when the decision comes into effect, but that the appeal period includes any extension of time for making appeals, under clause 125 or subclause 174(2) that is granted prior to the appeal period otherwise ending. 679. Subclause (5) clarifies that the exception in subclause (3) does not apply to decisions made under subclause 103(2) (decisions made with the consent of the parties). A decision made with the consent of the parties comes into effect immediately or as specified in the decision. This reflects what has been agreed within the parties. Additionally, as a consent decision is made with the agreement of the parties, the prospect of an appeal is unlikely to be relevant. 680. Subclause (6) provides an exception to subclause (3) such that, if the decision is affected by a stay order and will not come into effect until the appeal period ends or the appeal is determined, either the Tribunal or the relevant court can order that it comes into effect at a different time. This may be because, for example, the decision or part of the decision is favourable to the applicant and the Tribunal considers that it should come into effect immediately rather than at the end of the appeal period, or once an appeal is determined. Similarly, the relevant court may consider it is appropriate for the decision to come into effect before an appeal is determined or otherwise finalised. 681. Subclause (7) defines relevant terms in the provision. It provides that the relevant appeal is either a court or panel appeal if a panel appeal can be made. If only a court appeal can be made, it means the court appeal. 682. Subclause (7) also defines a court appeal as the appeal from the Tribunal's decision to the FCA or FCFCOA and panel appeal to mean an application to refer the Tribunal's decision to the guidance and appeals panel. 97

683. Completion, in relation to a court appeal occurs when the appeal is finalised, or if there are concurrent appeals in the guidance and appeals panel and a court (because one party seeks to have the matter referred to the guidance and appeals panel and another party appeals to the court), the decision of the Tribunal comes into effect when the decision of the guidance and appeals panel comes into effect. This is because the decision of the Tribunal is effectively superseded by the decision of the guidance and appeals panel and it is appropriate that the stay on that decision ceases to have effect at that time. It is also noted that it is presumed that the proceedings in the court will be held in abeyance until such time as the guidance and appeals panel is finalised. 684. This is because, in accordance with the principles of administrative law, the matter should first be dealt with in the simplest available forum. Where there are concurrent appeals, the appeal in the court is likely to be affected by the decision of the guidance and appeals panel either because it supersedes the decision of the Tribunal or because the applicant in the court may withdraw the appeal if it is satisfied with the decision of the guidance and appeals panel. It is noted that, as a Tribunal decision itself, a decision of the guidance and appeals panel is subject to this clause and, if subclause (3) applied, the guidance and appeals panel decision would be stayed until the completion of the appeal period to the court. 685. In relation to a guidance and appeals panel appeal, completion occurs when the decision of the Tribunal constituted by the guidance and appeals panel comes into effect (determined in accordance with this clause), or when the application to refer a decision to the guidance and appeals panel is refused. 686. It further defines the end of the appeal period to mean the end of the period in which either the court appeal or the panel appeal, or if no appeal is made, the end of the period within which an appeal may have been made. As discussed above, the end of the appeal period should take into account any extensions of time granted before the end of the appeal period (see subclause (8)). Clause 108: Effect of Tribunal decision to vary or substitute a reviewable decision 687. This clause provides that a decision of the Tribunal is taken to be a decision of the original decision-maker. This aims to ensure that all the rights and obligations that attached to, or were enlivened by, the original decision also attach to the Tribunal's decision. The clause is equivalent to subsection 43(6) of the AAT Act. 688. The clause applies only if the Tribunal varies the reviewable decision, or sets aside the reviewable decision and substitutes its own decision instead (subclause (1)). It does not apply if the Tribunal remits the decision back to the decision-maker, as this does not involve the Tribunal making a substantive decision. It also does not apply in relation to decisions affirmed by the Tribunal as this does not substantively change the operation of the decision-maker's decision. 689. Subclause (2) prescribes a number of provisions, for the purposes of which a varied or substituted decision of the Tribunal is not taken to be a decision of the original decision-maker. • The exception in paragraph (2)(a) refers to clause 16. Under that clause, if the decision-maker fails to do a thing within a specified time period, they are deemed to have made a decision not to do that thing. The Tribunal cannot be deemed to have made a decision in the same way. 98

• The exception in paragraph (2)(b) refers to Division 3 of Part 3. This ensures that an application cannot be made to the Tribunal for review of the Tribunal's decision. Because a person can apply to have a decision-maker's decision reviewed by the Tribunal, if the Tribunal's decision were taken to be the decision of the decision-maker for the purpose of applications, the person would be able to apply again to the Tribunal for a new review of that decision. • The exception in paragraph (2)(c) applies to Divisions 2 and 4 of Part 7 (appeals and references of questions of law to the FCA), so that the decision that would be appealed by the Court on a question of law would be the decision of the Tribunal and not the decision of the decision-maker. 690. Subclause (3) is a new provision. It provides that an application cannot be made to the Tribunal for review of a decision by the Tribunal to vary or set aside a decision. This clarifies that Tribunal decisions are not reviewable decisions for the purposes of the definition in clause 12. This is to ensure that the exercise by the Tribunal of a decision-making power under the enabling legislation is not a reviewable decision, in the same way other decisions made under the same provisions might be. 691. This subclause is distinct from paragraph (2)(b) of this clause which is included to prevent subclause (2) from resulting in the Tribunal decision being treated as a decision of the decision-maker. While the objective is the same--to clarify that applications cannot be made to the Tribunal to review Tribunal decisions--the pathway is different. The subclause does not apply to a decision by the Tribunal to remit the decision to the decision-maker or affirm the decision of the decision maker, because that is not an exercise of the decision-maker's power under the enabling legislation and therefore not at risk of being captured by the definition of reviewable decision. 692. Subclauses (4) and (5) outline the time when a varied or substituted decision takes effect. Unless the Tribunal stipulates a specific time, the Tribunal's varied or substituted decision takes effect or is taken to have taken effect from the time that the original decision has or had effect. This follows the principle established in subclause (3) that the Tribunal's varied or substituted decision is taken to be that of the decision-maker. Division 9--Tribunal guidance decisions 693. This Division deals with Tribunal guidance decisions, which are decisions made by the Tribunal constituted as the guidance and appeals panel to consider a matter raising an issue of systemic significance. It deals with when a decision is a Tribunal guidance decision and how Tribunal guidance decisions should be treated by members of the Tribunal. These are new provisions. Clause 109: Tribunal Guidance Decisions 694. This clause provides that where a decision: • is made by the Tribunal constituted as a guidance and appeals panel under clause 40 or 41 (that is, the matter contains an issue of significance to administrative decision-making), and 99

• the decision is not a decision to dismiss the matter made with the consent of the parties under clause 96 or a decision with consent of the parties made under clause 103(2) the decision is a Tribunal guidance decision (subclause (1)). 695. Subclause (2) provides that the President may declare that a decision made in the circumstances described in subclause (1) is not a Tribunal guidance decision. This may be because the decision is specific in nature and not likely to be applicable to the general decision-making of the Tribunal, turns on outdated legislation or precedents, or for such other reason as the President considers appropriate. If the President makes a declaration under this subclause, they must publish that declaration. This is to provide certainty as to which decisions made by the guidance and appeals panel are Tribunal guidance decisions and to provide transparency. 696. Subclause (3) included to assist readers and clarify that a declaration by the President under subclause (2) is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act. Clause 110: Tribunal must have regard to Tribunal guidance decisions 697. This clause provides that the Tribunal must have regard to Tribunal guidance decisions that it considers raise facts or issues similar to those raised in a proceeding when making its decision in that proceeding (subclause (1)). Whether the Tribunal considers that the guidance decision raises facts or issues similar to those in the proceeding is a matter for the Tribunal. The Tribunal is not expected to have to comprehensively distinguish each Tribunal guidance decision from the matter at hand. Rather, if there is a guidance decision that the Tribunal considers relevant, it must consider it in making its decision. 698. This provision is modelled on similar provisions in the Migration Act (see sections 353B and 420B), which provided for the President or Division Head of the Migration and Refugee Division in the AAT to declare decisions to be guidance decisions, which must be followed by the Tribunal in cases with similar facts and circumstances. This provision gives effect to the intent that decisions of the guidance and appeals panel will provide internal guidance to the Tribunal, promote consistency and have a normative effect on its decision-making and administrative decision-making more broadly. It is intended to promote rapid responses to emerging and systemic issues and ensure that they are resolved and can be acted on more quickly, by both the Tribunal and government agencies. 699. Subclause (2) provides an exception such that this provision does not apply to a member who is a Judge, or to the Tribunal constituted for the purposes of a proceeding by a member who is a Judge, or if the Tribunal is constituted by multiple members, where one of the members is a Judge. This is because it would not be appropriate to require a Judge to be guided by a decision of an administrative Tribunal. However, judges may, at their discretion, have regard to Tribunal guidance decisions. 700. Subclause (3) provides that a failure by the Tribunal to have regard to a Tribunal guidance decision does not affect the validity of its decision. This is because, while Tribunal guidance decisions are intended to have a normative effect on the decision-making of the Tribunal, they are not binding precedent. Despite subclause (3), a party may use a contrary guidance decision to strengthen their case 100

that the Tribunal erred in making its decision when making an application to refer a decision to the guidance and appeals panel. Further, Tribunal members are expected to consider matters consistently with Tribunal guidance decisions, and non-compliance with subclause (1) would be able to be addressed through a number of means, such as the performance and conduct management framework. However, decisions remain final and valid provided they are lawfully made by the Tribunal. Division 10--After proceeding ends 701. This Division deals with what happens after the Tribunal makes a decision in a proceeding and the proceeding comes to an end. Clauses 111 and 112 detail the requirements for the Tribunal to provide reasons for its decisions. This Division also deals with the publication of decisions by the Tribunal and other matters including costs of proceedings in a costs jurisdiction and correcting errors in Tribunal decisions. 702. While it is best practice for the Tribunal to provide reasons for every decision, it would be overly onerous and very resource intensive to require this. The clauses aim to balance the importance of transparency and assisting the parties to understand Tribunal decisions, with the principle of proportionality. 703. The Tribunal must provide written reasons as a matter of course for final decisions on reviews of reviewable decisions. This is a substantive change from subsections 43(2), (2A), (2B), and (3) of the AAT Act, which allowed for written reasons to be provided on request in some circumstances, and aims to promote high quality decision-making and public trust in the Tribunal. 704. For other decisions, the Tribunal is required to provide reasons where a party requests it. This is equivalent to the approach in the AAT Act (subsections 43(2), (2A), (2B) and (3)) to providing reasons. Clause 111: Notice of decision and statement of reasons--review of reviewable decision 705. This clause stipulates that, when the Tribunal has made a decision under clause 105 (to vary, set aside and substitute the original decision, remit a decision et cetera) in a review of a decision, it must provide the parties certain information in writing (subclause (2)). 706. The Tribunal must give to each party the following information in writing: the Tribunal's substantive decision, a statement of reasons for the decision, notice of the parties' appeal rights to the FCA or FCFCOA and notice of any right to appeal the decision to the Tribunal's guidance and appeals panel. 707. The Tribunal is not required to provide this information if it is adopting a decision made by agreement of the parties (subclause 103(2)). This is because the decision was made by the Tribunal for reasons determined by the parties themselves. It is noted that this provision still applies to decisions affected by subclause 103(3), where some of the issues might have been agreed by the parties, but others would need to be determined by the Tribunal. The Tribunal would only need to provide reasons for the part of the decision not agreed. 708. This clause represents a substantive change from the equivalent provisions in the AAT Act (subsections 43(2), (2A), (2B), and (3)), to the extent that if the Tribunal had given reasons orally, it was only obliged to provide written reasons for its decision on request from a party. The requirement to provide written reasons for every decision under clause 105 allows for the timeframe for appeal to commence on receipt 101

of these reasons, responding to stakeholder feedback about the need for parties to have time to carefully consider the reasons for decision in deciding whether or not to appeal. Written reasons for these decisions will also assist parties to fully understand the decision, including to ensure that it is implemented consistently with the Tribunal's intentions. 709. Subclause (3) provides that Tribunal must provide this information within 28 days of the decision being made, or within the time specified in the practice directions for that kind of decision. 710. Subclause (4) clarifies that before giving the decision and reasons in writing, the Tribunal can give them orally. This allows the Tribunal to immediately inform parties of the outcome of an application and the reasons for that outcome, without waiting to finalise written reasons (which could take up to 28 days or the time specified in the Practice Directions). 711. Subclause (5) clarifies that when providing the Tribunal's decision and reasons to parties, the Tribunal must not disclose any information which is subject to a non-disclosure or non-publication order or a public interest certificate. Clause 112: Notice of decision and statement of reasons--other proceedings 712. This clause stipulates that, for most other Tribunal decisions (see below) the Tribunal may choose to give reasons (orally or in writing), but is only required to provide reasons for its decision if the party requests it. The request must be made in writing, within 28 days of the decision being made. If a request is made, the Tribunal must provide these reasons within 28 days. 713. This clause applies to the final decision of the Tribunal in proceedings other than reviews of decisions, which are dealt with in clause 111 above. It also does not apply to decisions made under: • a decision to dismiss the application based on the parties' consent under clause 96 (this is because the parties have decided themselves that the matter has been dismissed) • a decision under subclause 103(2) to adopt a decision made by agreement by the parties (as the parties have decided themselves to agree to that decision), or • a public interest decision mentioned in subclauses 94(1) or (2). 714. Subclause (2) clarifies that the clause does not apply to a decision of the President about whether to refer a Tribunal decision to the guidance and appeals panel under clause 128. This is included for the avoidance of doubt, as an application to refer a decision to the guidance and appeals panel is not a proceeding and is not determined by the Tribunal, so is not within scope of this provision. 715. This clause recognises that it would create a resourcing burden for the Tribunal to provide reasons in all decisions (other than decisions dealt with in clause 111 above or excluded expressly) and is often not necessary. For example, if the Tribunal dismisses a matter under clause 84, there is no applicant to be given a statement of reasons. However, this clause also recognises that it is important for users of the Tribunal to fully understand decisions that have been made about them, particularly where they may seek to appeal that decision to the FCA. 102

716. If reasons are requested under this provision, the timeframe for making an appeal from the Tribunal decision commences when reasons are provided (see clause 174). This ensures parties have a reasonable amount of time to consider the decision and why it was made, before having to decide if they want to appeal. Clause 174 also deals with appeal timeframes where reasons are not provided for a decision and a party does not request reasons. 717. Subclause (8) clarifies that when providing the Tribunal's decision and reasons to parties, the Tribunal must not disclose any information which is subject to a non-disclosure or non-publication order or a public interest certificate. Clause 113: Tribunal may publish decisions 718. This clause provides for the publication of Tribunal decisions. 719. Subclause (1) provides that the Tribunal may publish its decisions and the reasons for them. This is equivalent to section 66B of the AAT Act. 720. Subclause (2) stipulates that there are certain decisions which are so important that the Tribunal must publish them and the reasons for them. These decisions include decisions made by the guidance and appeals panel, decisions involving a significant conclusion of law, and decisions that have significant implications for Commonwealth policy or administration. 721. There is no such requirement in the AAT Act. It has been added to promote the Tribunal's objective in clause 9 of improving the transparency and quality of government decision-making. The language of the provision reflects Recommendation 20.4 of the Robodebt Royal Commission Report that the new federal administrative review tribunal should publish decisions which involve significant conclusions of law or have implications for Commonwealth policy.1 There is no equivalent provision in the AAT Act. The provision promotes transparency, public trust and confidence in the Tribunal and reflects the expectation that government agencies will act consistently with Tribunal decisions, particularly those involving significant conclusions or implications. 722. Subclause (3) provides that the Tribunal's publication of decisions and reasons should follow any requirements specified in practice directions. For example, the practice directions could provide that a pseudonym must always be applies to published decisions of a certain kind, whether or not an order has been made restricting disclosure of this information, due to the vulnerability of parties in such proceedings. 723. Subclause (4) and the accompanying note clarify that when publishing its decisions and reasons, the Tribunal must not disclose any information which is prohibited or restricted (for example, information that is subject to a non-disclosure or non- publication order or a public interest certificate). The Tribunal may publish reasons for decisions in proceedings where a non-disclosure order applies, provided they do not include the information covered by the non-disclosure order. Clause 114: Tribunal may correct errors in decision or statement of reasons 724. This clause enables the Tribunal to correct the text of its decision or statement of reasons if it includes an obvious error, such as a typographical error, or a clear 1 Note that recommendation 20.4 specifically linked to social security decisions, but this clause requires the publication of significant decisions in all subject matter areas. 103

inconsistency between the decision and the statement of reasons for the decision (subclause (1)). This is to promote efficient Tribunal processes, so the Tribunal can simply correct obvious textual or typographical errors without lengthy, complicated processes. 725. Subclause (2) provides that the altered decision, or statement of reasons, is to be taken as the original Tribunal decision. 726. This is equivalent to section 43AA of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 115: Taxing costs 727. This clause, which stipulates the process for the Tribunal taxing costs, only applies where the Tribunal orders a party to pay another party's costs (subclause (1)). 728. The Tribunal is by default a no-costs jurisdiction, meaning each party bears their own legal costs. However, in certain types of Tribunal decisions, specifically allowed in the relevant legislation, the Tribunal can order that a party is liable to pay another party's costs. For example: • subsection 67(8) of the Safety, Rehabilitation and Compensation Act 1988 • section 357 of the Military Rehabilitation and Compensation Act 2004 729. If the Tribunal orders that a party is liable to pay another party's legal costs, but the parties cannot agree to the amount of costs payable, they can apply to the Tribunal to have the costs 'taxed' (subclause (2)). The taxing of costs involves the Tribunal undertaking an assessment of the amount of costs payable by one party to another. 730. Subclause (3) provides that amounts that a party is ordered to pay another party are recoverable as debts. 731. This clause is equivalent to section 69A of the AAT Act, however it does not include provision for a member to review a taxing of costs performed by an authorised officer. The Bill does not provide for decisions made or actions taken by authorised persons to be reviewable in the Tribunal, as to do so would undermine the finality of Tribunal decisions and compromise efficiency. There is no reason for a taxing of costs to be treated differently from this general principle. Division 11--Offences Clause 116: Offence--failure to comply with summons 732. Subclause (1) provides that a person commits an offence if a person summonsed under clause 74 does not comply with the summons. This clause is equivalent to subsection 61(1) of the AAT Act. 733. The maximum penalty for committing this offence is six months imprisonment, 30 penalty units, or both (subclause (1)). The penalty is less than the penalty for failure to comply with a summons in the AAT Act. It has been updated to ensure it is consistent with the penalties for failure to comply with a summons set out in Part 9.4 of the Guide to Offences. 734. A specific defence is available in relation to this offence in subclause (2), in addition to the standard defences available under the Criminal Code. The defence applies if it is not reasonably practicable for the person to comply with the summons within the 104

period specified in the notice (or any further time as the Tribunal allows). This could include, for example, where the person does not have the information, document or thing that is required for the purposes of the notice, or where it is not possible to compile all of the relevant information or documents in the time allowed. 735. A defendant bears the evidential burden in relation to this defence (see subsection 13.3(3) of the Criminal Code). It is reasonable and appropriate for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests that it was not reasonably practicable for them to comply with a requirement to produce information, documents or things within the required timeframe, because: • the reasons why it was not reasonably practicable for a person to comply with a requirement to produce or give information, documents or things are likely to be entirely within the knowledge of the person on whom the summons or requirement was served, and • it would be an onerous task for the prosecution to disprove the existence of all possible circumstances that would make it reasonably practicable for a defendant to comply with the notice, especially where these circumstances are peculiarly within the knowledge of the defendant. 736. The specific reference to the privilege against self-incrimination that is at subsection 61(2) of the AAT Act has not been replicated. The current drafting practice is to not include any express legislative provision in relation to self-incrimination unless the intention is to override the privilege. This is because the privilege applies by default under common law unless expressly overridden by legislation. Clause 117: Offence--failure to take oath, make affirmation or answer question 737. This clause provides that a person commits an offence if the person fails to take an oath or make an affirmation at the hearing or directions hearing when required to do so, or fails to answer a question at the hearing or directions hearing that the Tribunal requires the person to answer. 738. The maximum penalty for committing this offence is six months imprisonment, 30 penalty units, or both. 739. This clause is equivalent to clause 62 of the AAT Act although the penalty is less than the penalty in the AAT Act. This revised penalty is consistent with the penalties in Part 3.1.3 of the Guide to Offences. Clause 118: Offence--giving false or misleading evidence 740. This clause makes it an offence to knowingly provide false or misleading evidence or to omit a matter or thing which makes the evidence misleading. The maximum penalty for the offence is imprisonment for 12 months,60 penalty units, or both (subclause (1)). This penalty reflects the seriousness of deliberately misleading the Tribunal, thereby hindering its ability to conduct a review based on all necessary information. This subclause is equivalent to section 62A of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 741. A specific defence is available in relation to this offence, in addition to the standard defences available under the Criminal Code. Subclause (2) provides that the offence would not apply if the evidence is not false or misleading in a material particular. 105

A defendant bears the evidential burden in relation to this defence (see subsection 13.3(3) of the Criminal Code). It is reasonable and appropriate for a defendant to bear the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility the evidence was not false or misleading in a material particular given this information will be peculiarly within the knowledge of the defendant. This defence is a standard approach in offences of this kind. For example, this defence is relied on in subsection 61(2) of the National Anti-Corruption Commission Act 2022, subsection 60(2) of the Foreign Influence Transparency Scheme Act 2018 and section 136.1 of the Criminal Code. Clause 119: Offence--breach of non-publication or non-disclosure order 742. This clause makes it an offence for a person to contravene an order made under clause 70 to restrict the publication or disclosure of certain information. The existence of this offence aims to ensure that the ability of the Tribunal to protect the identity of parties and witnesses, and to prevent a disclosure of information that may be harmful to a person or against the public interest, is enforceable. 743. The maximum penalty for committing this offence is six months imprisonment, 30 penalty units, or both. This clause is equivalent to clause 62C of the AAT Act although the penalty is less than the penalty in the AAT Act. This revised penalty is consistent with the penalties in Part 3.1.3 of the Guide to Offences. Clause 120: Offence--contempt of Tribunal 744. This clause creates offences that promote the effective operation of the Tribunal, by allowing the Tribunal to deal with conduct that interferes with the Tribunal's operations. This clause is equivalent to section 63 of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 745. Subclause (1) makes it an offence for a person to engage in conduct that hinders or obstructs the Tribunal or an authorised person in performing the functions of the Tribunal. The maximum penalty for committing this offence is 12 months imprisonment, 60 penalty units, or both. 746. Subclause (2) makes it an offence for a person to engage in conduct that would amount to contempt of court if the Tribunal were a court of record. The maximum penalty for committing this offence is 12 months imprisonment, 60 penalty units, or both. 106

PART 5--GUIDANCE AND APPEALS PANEL 747. This Part establishes a guidance and appeals panel within the Tribunal. The guidance and appeals panel will have the power to: • hear and determine a matter referred to it by the President that raises an issue of significance to administrative decision-making, and • review and determine Tribunal decisions referred to it by the President that may contain an error of fact or law materially affecting the Tribunal decision or that raise an issue of significance to administrative decision-making. 748. If a Tribunal decision (including a decision of the guidance and appeals panel) contains an error of law, that decision may be appealed to the courts (see Part 7 of the Bill). 749. The guidance and appeals panel will be a new feature of the Tribunal. It will provide a mechanism for escalating significant issues and addressing material errors in Tribunal decisions. This will promote consistent Tribunal decision-making and rapid responses to emerging issues. The guidance and appeals panel will increase confidence in Tribunal decisions - including by affording parties the chance to seek review of a Tribunal decision that may contain an error of fact or law or raises an issue of significance. 750. Applicants will not have an automatic right of review by the guidance and appeals panel. The President will have the discretion to refer a matter to the guidance and appeals panel. This discretion is intended to focus the guidance and appeals panel on matters that raise an error of fact or law materially affecting the Tribunal decision or that raise an issue of significance to administrative decision-making. 751. The guidance and appeals panel will consider matters de novo. That is, the guidance and appeals panel will step into the shoes of the original decision-maker and consider the decision afresh. Being a review by the Tribunal, constituted in a particular way, unless otherwise specified, the guidance and appeals panel has available to it all of the powers and procedures under this Bill as are available to the Tribunal when conducting Tribunal review. Division 1--Preliminary Clause 121: Simplified outline of this Part 752. The simplified outline assists readers to understand the substantive provisions of this Part. The outline is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions of the Bill. Division 2--President may refer application on own initiative 753. This Division enables the President to identify and transfer an application for review of a decision directly to the guidance and appeals panel. Clause 122: President may refer application for review of decision to guidance and appeals panel 754. This clause sets out how the President may refer an application to the Tribunal for review of a decision directly to the guidance and appeals panel. The application must be for review of a 'decision' made by a decision-maker and cannot occur where 107

a Tribunal decision has already been made under clause 105 (paragraph (1)(a)). In accordance with paragraph (1)(b) the President must be satisfied that the application: • raises an issue of significance to administrative decision-making, and • it is appropriate in the interests of justice for the guidance and appeals panel to consider the matter. 755. In considering whether it is in the interests of justice to refer a decision, the President must consider the circumstances of the parties to the proceeding (subclause (2)). This requirement does not preclude the President from also considering other matters, such as the broader utility of referring a decision for review at a more senior level by the Tribunal constituted as the guidance and appeals panel. 756. For example, it may be in the interests of justice for the guidance and appeals panel to consider a matter that is likely to have a broader impact on persons outside the parties to the matter or is likely to improve decision-making. It may not be in the interests of justice if a referral is likely to disadvantage a party unfairly or cause an unacceptable delay in reaching an outcome. 757. Matters that raise an issue of 'significance to administrative decision-making' may include matters that are novel, complex, could potentially affect large numbers of individuals, or involve significant systemic issues that require guidance. For example, the review decision might: • raise issues concerning the legality of an agency's practice, procedure or policy • involve consideration of a new provision of an Act, or a provision which has not been previously the subject of administrative review or judicial review • impact or alter an agency's existing policy settings or practice across similar types of matters • involve inconsistencies or contrary outcomes to recent decisions on matters that are substantively similar in issue and fact • involve the correctness or preferability of a pattern of decision-making that affects significant numbers of people, or • raise issues of such complexity or controversy that they require review by the Tribunal constituted at a more senior level. 758. Note 1 under subclause (1) clarifies that specific constitution rules apply for the purposes of a proceeding when it has been referred by the President to the guidance and appeals panel on the grounds it raises an issue of significance (see clause 40). 759. Note 2 under subclause (1) clarifies that the Tribunal, even where a proceeding has already been constituted, may be reconstituted for the purpose of a guidance and appeals panel review (in accordance with clauses 43 and 47). Division 3 - Party may apply to refer Tribunal decision to guidance and appeals panel 760. This Division sets out how a party may apply to the President to refer a decision of the Tribunal under clause 105 to the guidance and appeals panel. If the President refers the decision to the guidance and appeals panel, the guidance and appeals panel will conduct a full merits review of the decision de novo. 761. This Division prescribes who may apply to the President for the referral of a decision to the guidance and appeals panel, the manner in which they should apply, time limits 108

for applying, the President's discretion to allow an application for a referral, and the process that occurs when a referral is made. Subdivision A--Application for referral to guidance and appeals panel Clause 123: Application may be made to refer certain Tribunal decisions to guidance and appeals panel 762. This clause provides that an application may be made to the President seeking to refer a Tribunal decision to the guidance and appeals panel for further review (subclause (1)). Because the application is made to the President and not the Tribunal, the application does not come within the definition of 'proceeding' in clause 4 of the Bill. This means a provision of the Bill which only applies in relation to a proceeding does not apply in relation to an application to the President to refer a decision to the guidance and appeals panel. For example, the decision of the President to refer or not refer a Tribunal decision to the guidance and appeals panel cannot be the subject of an appeal in clause 172 and is not required to meet the notice requirements in clause 112. 763. Subclause (1) provides that the application may only seek referral of a decision made by the Tribunal under clause 105 to affirm, vary, substitute or set aside a decision. This means a person cannot make an application to the President to refer a decision to the guidance and appeals panel for interlocutory decisions, or administrative decisions of the Tribunal such as denial of an extension of time application or an order to refer a matter to a dispute resolution process. Applications also cannot be made to refer a dismissal. The appropriate avenue for reconsideration of a dismissal are the reinstatement powers in clause 102 of the Bill. 764. Subclause (2) provides that a person who was at any point a party to the proceeding in the Tribunal in which the decision was made may make an application to the President to refer a decision of the Tribunal to the guidance and appeals panel. 765. Subclause (3) clarifies that a Tribunal decision is not itself a reviewable decision for the purposes of review by the guidance and appeals panel. In other words, the guidance and appeals panel does not conduct review of Tribunal decisions. Rather, the guidance and appeals panel conducts a review of the decision by the decision-maker (the reviewable decision) as it has been modified or updated by the Tribunal in clause 105 (see also clause 130(2)). Additionally, because the guidance and appeals panel conducts review of the reviewable decision rather than the Tribunal decision, provisions that apply to applications for review of reviewable decisions, or to reviewable decisions generally still apply to proceedings in the guidance and appeals panel. 766. Exceptions in subclauses (4), (5) and (6) provide that an application to refer a decision to the guidance and appeals panel cannot be made in relation to: • a decision of the guidance and appeals panel • a decision made by a member who is a Judge (or multiple members, at least one of whom is a Judge) • a decision made by agreement between the parties (under subclause 103(2)), or • any other decision prescribed by the rules or other legislation as ineligible for consideration by the guidance and appeals panel. 109

767. Tribunal decisions made by members who are judges are not reviewable by the guidance and appeals panel in order to respect the integrity of judicial officers. In accordance with clause 175, appeals from Tribunal decisions made by judges must be heard by the Full Court of the FCA. Clause 124: How to apply 768. This clause sets out how a party may make an application for referral of a decision to the guidance and appeals panel. The application may be made in writing or in any other manner specified in the practice directions (subclause (1)). 769. Subclause (2) provides that the application must include any information specified for the application in the practice directions, and also explain why the person considers that: • the decision raises an issue of significance to administrative decision-making, or • the decision may contain an error of fact or law that materially affects the decision. 770. If an application does not comply with subclause (2), the application's validity is not affected (subclause (3)). However, the President may refuse the application and choose not to refer the matter to the guidance and appeals panel (subclause (4)). 771. Because the guidance and appeals panel is a discretionary mechanism, it is within the President's discretion to decline an application to refer a Tribunal decision to the guidance and appeals panel. The requirement on the applicant to outline why they believe a decision should be referred assists the President to make this decision. There is no obligation on the President to make further enquiries if the application does not clearly articulate why the conditions for referral are, or may not be, met. Judicial review remains available if an application to refer the decision is declined. Clause 125: When to apply to refer Tribunal decision 772. This clause provides that a party must apply to have a decision referred to the guidance and appeals panel within 28 days of receiving a statement of reasons from the Tribunal or in a longer period as the President allows in special circumstances. Special circumstances may, for example, include where a person is fleeing a family violence situation or is in ill health for an extended period of time. Subdivision B--After application to refer decision is made Clause 126: Parties to be notified of application 773. This clause provides that if an application is made to refer a matter to the guidance and appeals panel, the Tribunal must provide written notice of the application to the applicant, the decision-maker for the decision affirmed, varied or set aside by the Tribunal, and any other party to the Tribunal proceeding in which the Tribunal decision was made (subclause (2)). 774. This enshrines procedural fairness for all parties by enabling them to provide submissions to the President on whether the decision should be referred, should they choose. To avoid any doubt, a decision-maker must be notified of a referral even if the decision-maker has an election notice not to participate in the relevant kind of 110

proceeding. This is because election notices do not apply to proceedings heard by the guidance and appeals panel. Clause 127: Tribunal decision continues to operate unless Tribunal orders otherwise 775. This clause provides that, as a general rule, making an application to refer a decision to the guidance and appeals panel does not affect the operation of the Tribunal decision or prevent action taken to implement it (subclause (1)). This is intended to give certainty to the parties and ensure they can act on decisions made by the Tribunal. 776. However, subclause (2) provides that a party to the proceeding in which the Tribunal decision is made may make an application requesting an order to stay or otherwise affect the operation or implementation of the decision if the Tribunal considers it is desirable to do so for the purposes of ensuring the effectiveness of the referral application. The Tribunal's order is subject to any conditions specified in the order (subclause (3)). 777. Subclause (4) provides that the order staying or otherwise affecting the operation or implementation of the Tribunal decision has effect until either: • if the President refers the decision to the guidance and appeals panel, 14 days after the President makes the referral, or • in any other case - the Tribunal refuses the referral application. 778. However, if the order states that it applies for a certain period, and that period ends before the default time period in subclause (4) ends, the order has effect until the end of that stated period (subclause (5)). 779. The note under subclause (4) clarifies that if the President makes a referral to the guidance and appeals panel, the Tribunal may also make an order staying or affecting the operation of the reviewable decision (under clause 32), to make sure the guidance and appeals panel review can be conducted effectively. This would have the effect of staying the Tribunal's decision because the Tribunal's decision is taken to be the decision of the decision-maker (see subclause 108(2)). For example, the Tribunal might make an order staying the effect of a decision until the guidance and appeals panel makes its decision. 780. Subclause (6) provides that if a party to the Tribunal proceeding applies to vary or revoke the order staying or affecting the operation or implementation of the Tribunal decision, the Tribunal can vary or revoke that order. It is noted that this is not contrary to clause 86 which provides that the power to make an order under this Bill includes the power to vary or revoke the order. 781. Subclause (7) provides that the Tribunal must not make, vary or revoke an order unless: • the parties have been given a reasonable opportunity to make submissions in relation to the making, varying or revocation of the order (unless it would not be practicable to give the party the opportunity (subclause (8)), and • the Tribunal has taken into account the interests of any person who may be affected by the decision being affirmed, varied or set aside. 782. If the Tribunal makes, varies or revokes an order staying or affecting the operation of the Tribunal decision without giving a party the opportunity to make submissions 111

because it would not be practicable to do so, the order, variation or revocation only takes effect once the party is given a notice setting out its terms (subclause (9)). Clause 128: President decides whether to refer Tribunal decision to guidance and appeals panel 783. This clause gives the President the discretion to refer a Tribunal decision to the guidance and appeals panel subject to certain criteria being met or to refuse a person's application. 784. Subclauses (1) and (2) should be read together so that the discretion conferred on the President in subclause (1) is limited by the requirement in subclause (2). Accordingly, to refer a decision to the guidance and appeals panel, the President must be satisfied that the decision of the Tribunal: • raises an issue of significance to administrative decision-making, or • may contain an error of fact or law materially affecting the Tribunal decision. 785. Even if the President is satisfied that the Tribunal decision meets either of these criteria, the President retains the discretion regarding referral and is not obliged to refer the Tribunal decision to the guidance and appeals panel. 786. This threshold is intended to be high. Issues that do not materially affect the Tribunal's substantive decision, such as administrative decisions of the Tribunal, are more appropriately dealt with through judicial review as they would raise issues concerning the appropriate exercise or improper exercise of power. It also avoids resources being expended unnecessarily if, for example, the Tribunal has made a minor factual error that does not affect the substance of the decision. This promotes an efficient use of resources and is consistent with other tribunals, such as various state and territory civil and administrative tribunals, which provide a similar internal mechanism of review for errors of fact or law. 787. In Hossain v Minister for Immigration and Border Protection [2018] HCA 34 (Hossain), it was held that materiality 'will generally require the error to deprive a possibility of a successful outcome'. That is to say, that the outcome would have been different, and the applicant would have been successful, but for the error. At paragraph [30], Kiefel CJ, Gageler and Keane JJ (as they then were) note, for example, that a failure to afford procedural fairness would not be a material error if the failure did not result in a different outcome. Similarly, a failure to take into account a mandatory consideration is not a material error if the consideration is so insignificant that it would not impact the decision (Hossain at [30]). 788. It was also held that 'there may be unusual circumstances where an error is so fundamental that it will be material whether or not a person is deprived of the possibility of a successful outcome'. An example of this may be respect for the dignity of the individual or a particularly extreme denial of procedural fairness (Hossain at [72]). 789. In deciding whether to refer a decision to the guidance and appeals panel, the President must consider the circumstances of the parties, and any other matters they consider are relevant (subclause (4)). Factors that the President might consider could include (but are not limited to): the financial burden on a party to have a matter heard by the guidance and appeals panel, the risk of trauma that further proceedings may 112

have on a party, whether parties have adequate representation, concerns over the safety, health or confidentiality of a party, and any other concern. 790. Subclause (3) clarifies that the President is not able to refer a decision to the guidance and appeals panel: • if the rules prescribe a fee that must be paid by a certain time in order to apply for leave, and the applicant fails to pay the fee in the prescribed time, or • if any circumstances prescribed by the rules are met (for example, if the decision is for a kind of matter which the rules state cannot be referred to the guidance and appeals panel). 791. The power to make rules of this kind recognises that the guidance and appeals panel is a new feature of the Tribunal and there may be a need for refinement following experience in practice. Clause 129: Notice of President's decision 792. If the President refers a Tribunal decision to the guidance and appeals panel or refuses the application, the President must provide notice of the President's decision orally or in writing to the person who made the application seeking the decision be referred, the decision-maker for the decision affirmed, varied or set aside by the Tribunal decision, and any other party to the original Tribunal proceeding (subclause (2)). This requirement ensures all parties are aware of the outcome of the President's decision regarding the application to refer the Tribunal decision to the guidance and appeals panel for review and that any consequences of the decision can occur - for example, restarting the timeframe to apply to the FCA (clause 172) or ending any stay order (clause 127). Subdivision C--Review after Tribunal decision is referred to guidance and appeals panel Clause 130: Application for review proceeds if President refers Tribunal decision to guidance and appeals panel 793. This clause applies when the President decides to refer a matter to the guidance and appeals panel (subclause (1)). 794. Subclause (2) provides that, if the President refers a Tribunal decision to the guidance and appeals panel, the person who made the application is deemed to have made an application for a review of: • the decision-maker's updated decision, if the Tribunal varied the original decision or substituted a new decision for it (because the operation of the original decision has been affected by the Tribunal's decision), or • the original decision (of the decision-maker): - if the Tribunal affirmed that decision (because the operation of the original decision is not affected by the Tribunal's decision), or - if the Tribunal remitted the matter to the decision-maker for reconsideration (because the operation of the original decision is not affected until the decision-maker makes a new decision in accordance with the orders and recommendation of the Tribunal on remittal). 113

795. In either of the above cases, the decision-maker who made the original decision is taken to be the decision-maker for the purposes of the review by the guidance and appeals panel. That is, the Tribunal is not the decision-maker for the purposes of the review by the guidance and appeals panel (note 1 under subclause (2)). 796. The effect of the application having been deemed to have been made is that the matter becomes an application for review of a reviewable decision proceeding, within the definition of proceeding in paragraph 4(a). This ensures that provisions in the Bill that rely on a proceeding or on an application having been made, and particularly provisions that only apply in relation to an application for review of a reviewable decision proceeding, will apply in the guidance and appeals panel. 797. Subclause (3) provides that anyone who was a party to the Tribunal proceeding for the decision or matter which has been referred is also deemed to be a party to the guidance and appeals panel proceeding. However, this does not apply to a party where a party has previously withdrawn from being a party, or a party has been removed as a party for failure to appear or comply (subclause (4)). Parties who have given an election notice to not participate in a proceeding are still deemed a party to a guidance and appeals panel review if that decision is referred. This is because election notices do not apply in relation to proceedings constituted as the guidance and appeals panel and a party who has provided an election notice in relation to a Tribunal proceeding is still a party to the proceeding in which the decision was made. 798. The guidance and appeals panel has discretion to add new parties to the proceeding (clause 22) but is not required to notify potential parties who were not parties to the original proceeding. 799. Subclause (5) provides that certain provisions of the Bill do not apply in relation to an updated Tribunal decision (being a reviewable decision as varied or remade by the Tribunal), as follows: • a provision of Division 3 of Part 3 (applying for review of a decision) • clause 24 (decision-maker must give Tribunal additional statement (about reasons) if Tribunal requires), and • Part 10 (notice and information about administrative decisions). 800. This is because those provisions relate to applying for the review of a decision-maker's decision and the notification requirements on a decision-maker in relation to its decision. It would not be appropriate to require a decision-maker to provide reasons for an updated Tribunal decision under clause 24, as it did not itself make the decision. Similarly, a decision-maker should not be required to satisfy the requirements under Part 10 in relation to a decision that they did not make. Further, a decision-maker would have already satisfied these requirements in relation to the original decision when it was first made. As an application to review is deemed to have been made under subclause (2), and there are specific provisions that address giving notice of a guidance and appeals panel application, it is not necessary for the provisions related to applying for review to apply to updated Tribunal decisions. 801. Subclause (6) provides that certain provisions of the Bill do not apply in relation to a guidance and appeals panel application. Those disapplied provisions are: • Clause 21 (requiring parties, and potential parties, to be notified of the application - because there are separate notification requirements for guidance and appeals panel applications, see clause 129), and 114

• Clause 23 (decision-maker must give reasons and documents to Tribunal--general rule) because the Tribunal will already have these documents as provided in relation to the original proceeding. 802. Subclause (7) provides that this Bill applies to an updated decision, or an application to the guidance and appeals panel, subject to any modifications prescribed in the regulations. This means that this Bill generally, including all of the powers and procedures of the Tribunal and provisions that refer to a decision of a decision-maker, apply in relation to both an updated decision (being the reviewable decision as affected by the Tribunal decision) and a guidance and appeals panel application (being an application to the guidance and appeals panel deemed to have been made by virtue of referral of the President). This is because provisions that refer to a decision should be taken to be references to an updated decision if an updated decision is before the guidance and appeals panel. For example, if the Tribunal in reviewing an updated decision were to exercise the power under clause 85 to remit a decision to the decision-maker while the review is underway, that remittal would be in relation to the updated decision. 803. Similarly, provisions in the Bill that refer to an application should be taken to refer to a guidance and appeals application if one is deemed to have been made under this clause. For example, if clause 84 applied (if the applicant has died or became bankrupt), that provision should be taken to refer to the guidance and appeals panel application. 804. The regulations may prescribe that the provisions of the Bill apply in a modified way to either an updated decision or a guidance and appeals panel application. This could be appropriate in circumstances where a decision-maker seeks to have a matter referred to the guidance and appeals panel. Some provisions which apply to applicants may need to be modified in the regulations so that they apply to the individual who was the applicant in the original Tribunal proceeding, rather than the decision-maker. For example, without modification, the Tribunal would not have any power to take action in a situation where the decision-maker is the applicant in a proceeding in the guidance and appeals panel, but where the individual affected by the decision who was the applicant in the initial Tribunal proceeding has become bankrupt or dies (see clause 84). 805. It is appropriate that any modifications of this kind, which modify the application of the Bill rather than merely prescribe matters in relation to the Bill, are included in the regulations rather than the rules. 806. For clarity, it is noted that subclause (7) does not specify that the Bill applies in relation to a decision of the Tribunal as affirmed or remitted or a guidance and appeals panel proceeding that is not a guidance and appeals panel application that is not reviewing a Tribunal decision because the Bill would already apply in those circumstances and to those decisions. Clause 131: Tribunal may have regard to records and documents from earlier proceeding 807. This clause provides that the Tribunal--when considering a guidance and appeals panel matter--may have regard to: • any record of the earlier Tribunal proceeding 115

• any documents or things given to the Tribunal in relation to the earlier proceeding, and • any order or recommendation made by the Tribunal in the earlier proceeding. 808. This facilitates efficient access to information for the guidance and appeals panel, ensuring it can inform itself as it sees fit. It also means that parties do not need to provide evidence and information to the guidance and appeals panel when it has already been provided to the Tribunal. 809. It also enables the Tribunal to have regard to any orders or recommendations of the Tribunal. This is particularly in relation to circumstances where the Tribunal has remitted a decision to a decision-maker with orders or recommendations in accordance with subparagraph 105(c)(ii). Paragraph 131(c) is included to clarify that, while the guidance and appeals panel conducts de novo review of the original decision, it can consider orders and recommendations attached to the Tribunal decision that would affect the original decision. 116

PART 6--PROCEEDINGS IN INTELLIGENCE AND SECURITY JURISDICTIONAL AREA 810. This Part sets out special procedures and processes that apply when the Tribunal's powers in relation to a proceeding are exercised in the Intelligence and Security jurisdictional area. 811. This Part brings together procedures relating to the way in which applications for review of intelligence and security decisions are handled that are currently dealt with separately in the AAT Act, ACC Act, Archives Act, FATA and FOI Act. Division 1--Preliminary Clause 132: Simplified outline of this Part 812. This clause provides a simplified outline of this Part. The simplified outline assists readers to understand the substantive provisions of this Part. It is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions of the Bill. Clause 133: How this Part applies Interaction with other provisions 813. Subclause (1) provides that the procedures set out in Part 6 apply despite any other provision of the Bill, the regulations, the rules or the practice directions and that, unless otherwise provided, this Part does not limit the operation of any provision of the Bill that is capable of operating concurrently. This reflects the overall intention of Part 6, which is to establish a set of particular procedures and processes that apply to proceedings in the Intelligence and Security jurisdictional area, to ensure the information that comes before the Tribunal in such proceedings, which may be particularly sensitive, is adequately protected. 814. Subclause (2) clarifies that Division 6 of Part 7 (sending and disclosing documents) continues to apply to Part 6. This is important to ensure that, where an appeal is made to the FCA, the Court is provided with the documents it requires, regardless of whether any non-disclosure orders or certificates are in place in relation to information or documents. Assessments to be treated as decisions 815. Subclause (3) provides that the Bill applies to criminal intelligence assessments, conducted under the ACC Act and security assessments and security clearance suitability assessments conducted under the ASIO Act, as if those assessments were decisions and the making of those assessments were the making of decisions. Clause 134: Proceedings to be conducted in Intelligence and Security jurisdictional area Reviews of intelligence and security decisions 816. Subclause (1) provides that 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. 817. This subclause is equivalent to: 117

• paragraph 17B(2)(a) of the AAT Act in relation to security assessments, security clearance decisions or security clearance suitability assessments • paragraph 17B(2)(b) of the AAT Act in relation to exempt security records • subsection 105.51(6) of the Criminal Code in relation to preventative detention orders • section 36J of the ACC Act in relation to adverse criminal intelligence assessments, and • section 130E of the FATA in relation to decisions made under section 79A of that Act, which provide that proceedings for review of the decision be heard in the current Security Division of the AAT. Updates have been made as a result of consolidating the provisions and to reflect modern drafting practices. These do not affect the operation or effect of the provision. Other proceedings involving national security information 818. Subclauses (2) and (3) provide the President a discretion to direct other proceedings to be dealt with in the Intelligence and Security jurisdictional area, if the President is satisfied that the proceeding would involve national security information. The President can issue such a direction on application by a party or on the President's own initiative. 819. Not all proceedings which could involve national security information are an intelligence and security decision. Other proceedings may involve information that requires protections afforded to proceedings dealt with in the Intelligence and Security jurisdictional area. For example, the review of a decision about a workers' compensation claim involving a staff member from an intelligence agency may require higher than average information protections if the matter centres on the extent to which an activity performed as part of the person's duties may be compensable. In this situation, the President could exercise their discretion under subclause 134(2) and direct that the matter be dealt with in the Intelligence and Security jurisdictional area. Other proceedings generally 820. Subclause (4) provides that clause 134 does not limit the President's general power under subclause 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. There may be proceedings which would not clearly involve 'national security information', as defined in the NSI Act, but which involve highly sensitive or classified information and may be more appropriately heard in the Intelligence and Security jurisdictional area. 821. For example, where a party is seeking review of several related decisions, and one of those is being dealt with in the Intelligence and Security jurisdictional area under subclauses (1) or (2), it may be more efficient for all related reviews to be dealt with together by the same member(s). Subclause (4) would allow this to occur. 822. It is important to allow the Tribunal the flexibility to determine appropriate procedures for proceedings where aspects of the matter do not involve sensitive information, and can proceed in a manner consistent with open justice principles as provided for in Part 4 of the Bill. 118

Clause 135: Operation in relation to decision-maker 823. Subclauses (1) and (2) set out who is taken to be the 'decision-maker' for the different decisions that are intelligence and security decisions, other than exempt security record decisions: • criminal intelligence assessment--the CEO of the Australian Crime Commission • foreign acquisitions and takeovers decisions--the Treasurer • preventative detention decisions--the AFP Commissioner • security assessment--the Director-General of Security • security clearance decisions--the Director-General of Security, and • security clearance suitability assessment--the Director-General of Security. 824. It is important the Bill clearly specifies who the 'decision-maker' is for each of these decisions, because the decision-maker has a number of obligations under Part 6. In intelligence and security decisions, the repository of the power may be a general staff member of the agency. However, it is appropriate that the head of the agency, or the Treasurer (as a decision-maker under the FATA), is the party for the purpose of the review, rather than the original decision-maker staff member. 825. However, subclause (3) provides that the listed persons are not taken to be 'decision-makers' for the purposes of a number of general provisions, which will apply to all proceedings for review. This clarifies that, for the purposes of clauses 54, 85, 105, 108 and 163, the 'decision-maker' is the original repository of the power, rather than the agency head as listed here. This ensures the effective operation of the review process, and ensures that the Bill operates smoothly with the legislative frameworks which establish the review rights. For example, in relation to clause 108 the Tribunal's decision on review becomes that of the original decision-maker, rather than the party for the purposes of the review. Clause 136: Reasons for decisions 826. This clause sets out that Division 3 of Part 10 (decision-makers to give reasons for decision) does not apply in relation to an intelligence and security decision. This has the effect that the applicant cannot seek a statement of reasons for the decision from the decision-maker under the Bill. The general obligation on decision-makers to provide a statement of reasons also does not apply to intelligence and security decisions. 827. This reflects the need to protect the sensitive nature of information that may form the basis of such decisions. This clause is equivalent to paragraph 28(1AAA) (a) of the AAT Act. It has updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 828. This clause does not affect any requirements in relation to a statement of grounds, or reasons for the decision, set out in the relevant Act under which the decision is made. Clause 137: Meaning of relevant body 829. This clause provides the meaning of relevant body. In a number of intelligence and security decision proceedings, there are other agencies, aside from the decision-making agency who have an important role in relation to the original decision and should be involved in the review proceedings. 119

830. For example, the Treasurer must obtain and have regard to advice from a NIC agency in making a foreign acquisitions and takeovers decision. As such, it is appropriate that the relevant NIC agency who provides that advice is involved in proceedings for review of the particular decision. Division 2--Starting a review Subdivision A--Applications and notice of applications Clause 138: Limits on who can apply for certain reviews 831. This clause displaces the general provision in relation to who can apply to the Tribunal for review of a reviewable decision (being clause 17) for intelligence and security decisions, other than exempt security record decisions and preventative detention decisions. 832. The note outlines that the persons who may apply for the review of these decisions are specified in the Acts under which the decisions are made. The general provision setting out who can apply for review should not be applicable in most intelligence and security decisions because of the nature of the decision and the information involved in proceedings. It is not appropriate, or necessary, for 'any persons whose interests are affected by the decision' to be able to apply for review of the decision. 833. This clause replaces subsections 27AA(1) and (4) of the AAT Act. This clause replicates the effect of section 36F of the ACC Act and subsection 130A(2) of the FATA. Clause 139: Additional persons to be notified of applications for review 834. This clause sets out the notification requirements when an application is made to the Tribunal for review of an intelligence and security decision that the Tribunal can review. These requirements apply in addition to clause 21 (parties and potential parties to be notified of application). Clause 139 is necessary to reflect the different entities which play an important role in the decision and should therefore be notified of any application for the Tribunal to review the decision. 835. Subclause (2) sets out that, when an application is made, the Tribunal must give the agency head written notice of the application. This clause is equivalent to subsections 29B(1) and (2) of the AAT Act, section 36H of the ACC Act, and section 130C of the FATA. It has updates as a result of consolidating the provisions and to reflect modern drafting practices. These do not affect the operation or effect of the provision. 836. Subclause (2) also provides that the agency head must then give written notice of the application to the relevant body. This is equivalent to subsection 130C(2) of the FATA, in relation to foreign acquisitions and takeovers decisions. However, this replaces other provisions, which require the AAT to provide certain documents to other entities--for example, subsection 29B(2) of the AAT Act and paragraph 36H(1)(b) of the ACC Act. This ensures that the involvement of other agencies in a review is coordinated through the decision-making agency, as the agency who is best placed to determine the specific relevant body (or bodies) for particular decisions. 120

Clause 140: Applications for decisions to be reviewed again 837. This clause provides a pathway for an applicant to apply to the Tribunal for review of the Tribunal's decision in relation to certain intelligence and security decisions, on the basis that further evidence of material significance has become available, which was not available at the time of the initial review. This clause is equivalent to subsections 27AA(2), (3), (5) and (6) of the AAT Act, subsections 36F(3), (4) and (5) of the ACC Act, and subsections 130A(3) and (4) of the FATA. It has updates as a result of consolidation of the provisions and to reflect modern drafting practices. These do not affect the operation or effect of the provision. 838. Re-review on the basis of fresh evidence will not be extended to decisions where it does not currently apply--exempt security record decisions or preventative detention decisions. Subdivision B--Information to be provided by agency head Clause 141: Information to be provided by agency head 839. This clause obliges an agency head to provide particular information to the Tribunal, to support the proceeding for review in relation to an intelligence and security decision, other than an exempt security record decision. This clause applies instead of the general obligations to provide reasons and documents, set out in Subdivision B of Division 4 of Part 3 (provision of reasons and documents). Information to be provided by agency head 840. If the agency head was given notice of an application under clause 139, they must give the Tribunal all the relevant information that was used to make the decision and is available to the agency head. This is equivalent to subsections 39A(3) and 39BA(3) of the AAT Act, subsection 36K(3) of the ACC Act and subsection 130G(3) of the FATA, with some substantive changes to ensure the Tribunal will be provided with appropriate information to stand in the shoes of the decision-maker when conducting a review. 841. In addition, there are particular documents an agency head must provide in proceedings for review of certain intelligence and security decisions, to ensure the Tribunal has all the necessary documents to enable it to conduct the review. 842. Paragraph 141(2)(b) provides that, if the decision is a security clearance decision, the Director-General of Security must provide the Tribunal a copy of the statement of grounds prepared for the decision under section 83C of the ASIO Act. This is equivalent to paragraph 38A(1B)(a) of the AAT Act with some substantive changes to reflect practical considerations. Paragraph 38A(1B)(a) of the AAT Act provides that the documents must be provided as soon as practicable. As outlined below, subclause 141(5) provides the agency head must lodge documents within 28 days, or within such further period as the Tribunal allows. 843. Paragraph 141(2)(c) provides that, if the decision is a foreign acquisitions and takeovers decision, the Treasurer must provide the Tribunal a copy of the notice given to the person concerned under subsection 79B(1) of the FATA, as well as a copy of the whole of the notice (without redactions). This is equivalent to subsection 130D(1) of the FATA with some substantive changes to reflect practical considerations. Subsection 130D(1) of the FATA provides that the documents must be provided 121

within 30 days. As outlined below, subclause 141(5) provides the agency head must lodge documents within 28 days, or within such further period as the Tribunal allows. Non-disclosure certificates 844. Subclause (3) obliges the relevant agency head to provide further documents in particular intelligence and security decision proceedings. For some intelligence and security decisions, the legislation under which the decision was made allows the relevant Minister (or CEO of the ACIC) to issue a certificate to prevent disclosure of information to the applicant when informing them of the original decision, on the grounds that it would be prejudicial to security, or, in relation to criminal intelligence assessments, prejudicial to law enforcement interests. 845. These certificates are issued under: • subsection 36C(5) of the ACC Act--in relation to criminal intelligence assessments • paragraph 38(2)(b) of the ASIO Act--in relation to security assessments • subsection 83C(6) of the ASIO Act--in relation to security clearance decisions, and • paragraph 83A(4)(b) of the ASIO Act--in relation to security clearance suitability assessments. 846. Where such a certificate has been made in relation to the relevant decision, the agency head must provide the Tribunal with a copy of the certificate and, where relevant, a copy of the whole assessment (without redactions). This ensures the Tribunal receives all information relevant to the proceedings. 847. This subclause is equivalent to subsections 38A(1) and (1A) of the AAT Act and subsections 36H(2) and (3) of the ACC Act. It has updates as a result of consolidation of the provisions and to reflect modern drafting practices. These do not affect the operation or effect of the provision. Prohibition on disclosure of subsection 79B(1) notices 848. Subclause (4) sets out that where the Tribunal has been provided, under paragraph 141(2)(c), with a copy of a notice given under subsection 79B(1) of the FATA, the Tribunal has an obligation to not permit the applicant to have access to that notice at any time. This is equivalent to subsection 130D(2) of the FATA. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. General rules 849. Subclause (5) sets out the time within which the agency head must provide the Tribunal with the documents set out in clause 141. In line with the general timeframe in which a decision-maker must give reasons and documents to the Tribunal in clause 23, the agency head must do this within 28 days after being notified of the application. However, subclause 141(5) also provides the Tribunal a discretion to specify a further period. This discretion is necessary because reviews of decisions dealt with in the Intelligence and Security jurisdictional area will often involve a significant amount of classified material, much of which is made subject to ministerial public interest certificates, which may take some time to provide. This discretion will 122

allow the Tribunal to determine a timetable for the provision of material on a case-by-case basis, in consultation with the parties. 850. Subclause (6) clarifies that the agency head's obligations to provide information or documents to the Tribunal applies regardless of whether or not they are favourable or unfavourable to the applicant. This is important to ensure that all information that the Tribunal requires to conduct a proceeding is provided. This is equivalent to subsections 39A(3) and 39BA(3) of the AAT Act, subsection 36K(3) of the ACC Act and subsection 130G(3) of the FATA. It has updates as a result of consolidation of the provisions and to reflect modern drafting practices. These do not affect the operation or effect of the provision. Subdivision C--Provision of security clearance standards Clause 142: When this Subdivision applies 851. This clause provides that Subdivision C of Division 2 of Part 6 applies in relation to the review of a security clearance decision or a security clearance suitability assessment. Clause 143: Director-General of Security may provide standards Providing standards 852. Subclause (1) provides that the Director-General of Security may give the Tribunal a copy of a standard (or part thereof) relating to the Commonwealth's highest level of security clearance. The Director-General may give the Tribunal either, or both, of the standard/s that was used to make a security clearance decision, and the current standard. 853. The note clarifies that such a standard is part of the Australian Government's framework of protective security policy. 854. Subclause (1) is equivalent to subsections 39BA(4) and (5) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Applying standards 855. Subclause (2) obliges the Tribunal, where furnished with a copy of only one standard (or part), to apply the standard (or part) in its review of the decision. Subclause (3) obliges the Tribunal, where furnished with a copy of more than one standard (or part), to apply the standard certified by the Director-General as being a current standard. This ensures that the Tribunal is basing its decision on the appropriate version of the standard. 856. Subclauses (2) and (3) are equivalent to subsection 39C(2) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 144: Disclosure of standards General rule 857. This clause imposes an obligation on the Tribunal, where it has been given a standard (or part thereof) under clause 143, to do all things necessary to ensure that a copy of the standard or any information contained in the standard is not disclosed to 123

the applicant or any other person, other than the Director-General of Security or their representative, or a member of the Tribunal, the Principal Registrar or a staff member of the Tribunal, in the course of the performance of their duties. Exception 858. Subclause (2) provides an exception to this obligation in relation to disclosure to the applicant or a person representing the applicant, to the extent the information has already been lawfully disclosed to them, or where the Director-General of Security consents to the disclosure. 859. This clause is equivalent to subsections 39C(3) and (6) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Division 3--Proceedings Clause 145: Constitution of Tribunal--general rule When this section applies 860. This clause sets out that clause 39 (general rules for constitution of Tribunal) does not apply in relation to a proceeding for review of a decision in the Intelligence and Security jurisdictional area. 861. The note clarifies that clause 39 continues to apply in relation to incidental and ancillary proceedings that relate to proceedings for review of intelligence and security decisions, such as those dealing with costs and extensions of time. This recognises that some types of proceedings are not complex and can be handled in accordance with the general rules for constitution of the Tribunal to maximise the Tribunal's flexibility. Constitution of Tribunal--general rule 862. Subclause (2) would create a consistent approach to constitution of proceedings for reviews to be heard in the Intelligence and Security jurisdictional area. 863. Subclause (2) stipulates that for the purposes of a proceeding for review of an intelligence and security decision, except for a preventative detention decision, the Tribunal must be constituted by: • the President • a Deputy President, or • three members, at least one of whom is the President or a Deputy President. 864. It is open to the President to determine which of these options is most appropriate, depending on the nature of the matter. 865. The approach to constitution of the Security Division currently differs depending on the particular matter. While subsection 19E(2) of the AAT Act provides the Tribunal to be constituted by one presidential member and two other members for most Security Division proceedings, there are different constitution requirements for other Security Division proceedings: • for reviews of decisions of the Archives relating to an exempt security record-- subsection 19F(2) of the AAT Act requires the Security Division to be constituted by three presidential members or a presidential member sitting alone, 124

• for reviews of adverse criminal intelligence assessments--subsection 36J(2) of the ACC Act requires the Security Division to be constituted by one or more members, at least one of which must be a presidential member. 866. The approach set out in subclause (2) provides greater flexibility to the Tribunal to manage its resources depending on the nature and complexity of the matter before it, while still ensuring a presidential member hears and presides over intelligence and security decisions. Presiding member 867. Subclause (3) clarifies who the presiding member is when a multi-member panel is constituted for a proceeding. Avoiding conflicts of interest--members who were agency heads 868. Subclause (4) provides that a member cannot be constituted to a proceeding in the Intelligence and Security jurisdictional area if the member is, or was, the head of an agency within the national intelligence community: • where that agency is a party in the proceeding, or • in the case of an exempt security record decision, where the information or record originated with or was received from that agency. Avoiding conflicts of interest--members who were certain Ministers 869. Subclause (5) provides that a member also cannot be constituted to a proceeding in the Intelligence and Security jurisdictional area if the member was the Treasurer, or was the Minister responsible for an agency within the national intelligence community: • where that agency is a party in the proceeding, or • in the case of an exempt security record decision, where the information or record originated with that agency. 870. It would not be appropriate for former agency heads, the Treasurer, or a former Minister who had responsibility for a NIC agency to be constituted to a proceeding where that agency is a party to the proceeding. 871. Subclauses (4) and (5) replace section 17F of the AAT Act (carried through in sections 19E and 19F of the AAT Act), which provides that a presidential member must not participate in a proceeding of the Security Division if they are, or have been, the Director-General of Security, or an ASIO employee or ASIO affiliate. This requirement originated from the Security Appeals Tribunal, which only reviewed ASIO decisions, and has continued in a similar form, even while the AAT's Security Division's jurisdiction expanded. 872. The Bill modernises the approach to conflicts of interest for the Intelligence and Security jurisdictional area. These provisions are also read in conjunction with the general duty on members to disclose real or possible conflicts of interests in clause 218. Taken together, these clauses will allow the President to exercise their discretion to reconstitute the proceeding either before or after the hearing starts on the basis of conflicts of interests (set out in clauses 43 and 46 respectively), where the President considers necessary. 125

Clause 146: Constitution of Tribunal--preventative detention decisions 873. This clause sets out that clause 39 (general rules for constitution of Tribunal) does not apply in relation to a proceeding for review a preventative detention decision. Instead, this clause stipulates that for the purposes of a proceeding for review of a preventative detention decision the Tribunal must be constituted by a single member who must be: • the President, or • a Judicial Deputy President. 874. The note clarifies that clause 39 continues to apply in relation to incidental and ancillary proceedings that relate to proceedings for review of preventative detention decisions, such as those dealing with costs and extensions of time. 875. Clause 146 ensures that, given continued preventative detention decisions can be made by superior court judges, in a persona designata capacity, only judicial members of the Tribunal may review these decisions. In addition, this clause provides that a proceeding for review of a preventative detention decision should only be constituted by a single member, and not a multi-member panel. Given the necessity of reviews of preventative detention decisions being heard by judicial members, the single-member constitution requirement addresses the practical challenge of constituting a Tribunal with three judicial members. Clause 147: Parties to proceedings 876. This clause sets out who are the parties to proceedings for the review of intelligence and security decisions. 877. In general proceedings in the Tribunal, clause 22 provides that the parties to the proceeding are the applicant and the decision-maker, as well as any person the Tribunal adds as a party because that person has interests affected by the decision. However, given the highly sensitive and personal nature of most intelligence and security decisions, it is not appropriate for other persons to be added as a party to the proceeding. 878. Subparagraph 147(1)(b)(i) provides that the general provision in relation to who are the parties to a proceeding, being clause 22, continues to apply to exempt security record decision proceedings. However, paragraph 147(1)(b) provides that other general provisions do not apply in relation to proceedings for review of intelligence and security decisions. The ability for a decisionmaker to elect not to participate, or be removed, from proceedings in the Intelligence and Security jurisdictional area is not practical in proceedings for review of intelligence and security decisions, given the nature of the proceedings and the critical role the agency party plays. 879. Subclause (2) sets out who the parties are in proceedings for intelligence and security decisions, except for exempt security record decisions. As with all Tribunal proceedings, the applicant is a party to the proceeding. For foreign acquisitions and takeovers decisions, the Treasurer is taken to be the other party--this is equivalent to subsection 130G(2) of the FATA. For other decisions, the other party is the agency head of the relevant agency involved in the decision. This clarifies for preventative detention decisions that the AFP Commissioner is a party to the proceeding and is subject to the obligations and rights thereby afforded. Subclause (2) is equivalent to subsections 39A(2) and 39BA(2) of the AAT Act and subsection 36K(2) of the ACC Act for those relevant matters. It has updates as a result of consolidation of the 126

provisions and to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 148: Certain hearings must be held in private 880. This clause provides that a proceeding that relates to an intelligence and security decision, other than an exempt security record decision, must be held in private. 881. Subclause (2) provides that this is subject to clause 149, which sets out persons who are entitled to be present at hearings and clause 158, which provides an applicant is not to be present when evidence subject to a security certificate is being adduced. 882. Generally, Tribunal proceedings should be heard in public to accord with open justice principles--this is provided for in clause 69. However, given the nature of intelligence and security decisions and the information involved in these proceedings, public hearings are not appropriate. This is equivalent to subsections 39A(5) and 39BA(7) of the AAT Act, subsection 36K(5) of the ACC Act and subsection 130G(5) of the FATA. It has updates as a result of consolidation of the provisions and to reflect modern drafting practices. These do not affect the operation or effect of the provision. 883. Exempt security record decisions are excluded from this provision, meaning there is not a presumption that such proceedings should be held in private. In these proceedings, there may be aspects of the matter that do not involve sensitive information, and so can proceed in a manner consistent with open justice principles. The Tribunal's general power to direct that a hearing, or part thereof, is to take place in private, as set out in subclause 69(3), would apply to proceedings in relation to exempt security record decisions. 884. Subclause (4) provides the Tribunal a discretion to give directions as to who may be present at a hearing. It may be necessary, at various points in proceedings, for the Tribunal to make an order as to whether certain people may be present. For example, the Tribunal has a general duty to protect security and law enforcement information under clause 156. Through a proceeding, the Tribunal may determine that, in order to meet this obligation, it is appropriate that certain people, such as the applicant, should not be present when particular information is being presented. The Tribunal may make a direction under subclause 148(4) to that effect. Clause 149: Persons entitled to be present at hearings 885. This clause sets out the persons entitled to be present at hearings in relation to proceedings for review of intelligence and security decisions subject to any security certificate issued in accordance with clause 158. 886. Subclause (2) sets out the right of the applicant, and their representative, to be present when the agency head (or their representative) or a relevant body are making submissions or adducing evidence. This acknowledges that, despite the sensitivity of the information in a proceeding, the principles of open justice should be followed as much as possible. This is equivalent to subsections 39A(6) and 39BA(8) of the AAT Act, subsection 36K(6) of the ACC Act and subsection 130G(6) of the FATA. It has updates as a result of consolidation of the provisions and to reflect modern drafting practices. These do not affect the operation or effect of the provision. 887. Subclause (3) sets out the right of the agency head, their representative and the relevant body(s) to be present when the applicant, or their representative, are making 127

submissions or adducing evidence. This is equivalent to subsections 39A(7) and 39BA(10) of the AAT Act, subsection 36K(7) of the ACC Act and subsection 130G(7) of the FATA. It has updates as a result of consolidation of the provisions and to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 150: Relevant bodies may adduce evidence and make submissions 888. This clause enables a relevant body for each intelligence and security decision to adduce evidence and make submissions in proceedings in relation to that intelligence and security decision. This is equivalent to subsections 39A(2) and 39BA(2) of the AAT Act, subsection 36K(2) of the ACC Act and subsection 130G(2) of the FATA. It has updates as a result of consolidation of the provisions and to reflect modern drafting practices. These do not affect the operation or effect of the provision. 889. Clause 150 is important because certain entities, beyond the decision-making agency, may have information that is relevant to the Tribunal's review of intelligence and security decisions. For example, in a review of a foreign acquisitions and takeovers decision, the agency in the national intelligence community that provided advice to the Treasurer may have information that is relevant to the proceeding and an opportunity should be made for this to be presented to the Tribunal. 890. Paragraph 150(2)(b) ensures that a number of general obligations also apply to relevant bodies, as if they were a party to the proceeding. Generally, this is to ensure proceedings run efficiently in practice, but it also ensures that the relevant body uses its best endeavours to assist the Tribunal in line with clause 56. Clause 151: Order of evidence and submissions 891. This clause sets out the order in which the Tribunal must initially hear evidence and submissions in a proceeding for review of an intelligence and security decision, unless the Tribunal determines otherwise: • first--the head of the agency (or the Treasurer in FATA matters), • second--the relevant body, and • third--the applicant. 892. As a result of the sensitive nature of the information involved in making the original decision, the applicant may have limited information. As such, the specific order set out in this clause is intended to ensure the Tribunal understands the basis for the case before hearing from the applicant. This clause is equivalent to subsections 39A(12) and (13) and 39BA(15) and (16) of the AAT Act, subsections 36K(13) and (14) of the ACC Act and subsections 130G(12) and (13) of the FATA in intent and operation. It has updates as a result of consolidation of the provisions and to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 152: Opportunity for further evidence and submissions 893. This clause ensures that a party is given an opportunity to adduce further evidence or make further submissions, in response to evidence given by another party, where the Tribunal considers that the first-mentioned party should have such an opportunity. This clause applies to proceedings for review of all intelligence and security decisions, to ensure that parties have adequate opportunities to present their case. This 128

clause is equivalent to subsections 39A(16) and 39BA(19) of the AAT Act, subsection 36K(17) of the ACC Act and subsection 130G(16) of the FATA. It has updates as a result of consolidation of the provisions and to reflect modern drafting practices. These do not affect the operation or effect of the provision. 894. Other provisions of the Bill which prohibit or restrict the disclosure of particular information continue to operate, regardless of the fact that the Tribunal must give parties an opportunity to present further evidence. For example, the Tribunal must still ensure that information or documents subject to a clause 161 public interest certificate is protected, in line with the obligations set out in that clause. Clause 153: Tribunal may invite person to give evidence 895. This clause empowers the Tribunal to invite a person to give evidence in a proceeding in the Intelligence and Security jurisdictional area on its own initiative. The Tribunal can do this at any stage of the proceeding. This reflects the Tribunal's discretion to be able to inform itself on any matter as it thinks fit. This clause does not interfere with the Tribunal's general summons power at clause 74. The Tribunal may also refuse a request for a person to be summonsed through subclause 74(4). 896. This clause replicates the effect of subsections 39A(14) and 39BA(17) of the AAT Act, subsection 36K(15) of the ACC Act and subsection 130G(14) of the FATA. It has updates as a result of consolidation of the provisions and to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 154: Certain processes not available 897. This clause provides that dispute resolution processes set out in Subdivision C of Division 6 of Part 4 are not available in relation to proceedings that relate to an intelligence and security decision, other than an exempt security record decision. Because of the nature of the decisions under review, and the need to protect the sensitive and classified information involved in these proceedings, it is not appropriate for dispute resolution processes to be available. This clause is equivalent to section 34 of the AAT Act, paragraph 36S(b) of the ACC Act and paragraph 130N(b) of the FATA. It has updates as a result of consolidation of the provisions and to reflect modern drafting practices. These do not affect the operation or effect of the provision. 898. Dispute resolution processes continue to be available for exempt security record decisions and other decisions the President refers to the Intelligence and Security jurisdictional area under either subclause 134(2) or subclause 196(4). This reflects that proceedings for review of these types of decisions could involve aspects that do not involve sensitive information, and may benefit from accessing dispute resolution processes. Clause 155: Guidance and appeals panel 899. This clause provides that Part 5 (guidance and appeals panel) does not apply in relation to an intelligence and security decision, because proceedings in the Intelligence and Security jurisdictional area are already akin to guidance and appeals panel review. 900. All proceedings for review of decisions in the Intelligence and Security jurisdictional area are constituted by (at least) a Deputy President - this is equivalent to the 129

constitution requirement for an 'issue of significance' under clauses 40 and 41. Given the seniority of the constitution for the original matter in the Intelligence and Security jurisdictional area, constitution under clause 42 (material error) would be extremely limited. 901. Decisions of the Tribunal in these proceedings are highly unlikely to bear upon broader decision-making of the Tribunal, given the unique and sensitive nature of the information involved. Decisions in proceedings for review of intelligence and security decisions may be considered and applied by members in subsequent proceedings in the Intelligence and Security jurisdictional area as a matter of course. Division 4--Disclosure of information Clause 156: Duty of Tribunal in relation to security and law enforcement information 902. This clause imposes a duty on the Tribunal, in relation to a proceeding in the Intelligence and Security jurisdictional area, to ensure, so far as possible, that information is not communicated or made available to a person if that communication or disclosure would prejudice: • the security, defence or international relations of the Commonwealth, or • law enforcement interests. 903. This obligation applies broadly to the Tribunal, and is intended to apply to members and staff in all their dealings with information obtained in the course of a review, not just limited to the hearing context. 904. This duty is important to ensure that the sensitive information that is involved in proceedings in the Intelligence and Security jurisdictional area is adequately protected. This clause replicates the duty imposed on the AAT in various proceedings currently dealt with in the Security Division--subsection 39B(11) of the AAT Act, section 36L(12) of the ACC Act and subsection 130H(10) of the FATA. 905. Clause 156 extends the duty to any proceeding in the Intelligence and Security jurisdictional area. It is appropriate that the duty is extended to all national security information or other sensitive information, rather than only that information relating to particular types of decisions. Clause 157: Restricting publication or disclosure of information 906. Subclauses 157(1) and (2) set out the matters the Tribunal must have regard to in considering whether to make an order under clause 70 restricting publication or other disclosure of information, in relation to a proceeding in the Intelligence and Security jurisdictional area. Generally, in considering whether to make such an order under clause 70, the Tribunal must consider (in line with clause 71) the principles that it is desirable that: • hearings of proceedings in the Tribunal are held in public • evidence given before the Tribunal is made available to the public, and • evidence given before the Tribunal and the contents of documents given to the Tribunal are made available to all the parties to the proceeding. 130

907. However, proceedings in the Intelligence and Security jurisdictional area involve particularly sensitive or classified information. As such, additional factors must be considered by the Tribunal, to ensure that information is appropriately protected. 908. Paragraph 157(2)(a) requires the Tribunal to always have regard to the necessity of avoiding the disclosure of national security information. In addition, paragraph 157(2)(b) requires the Tribunal, in proceedings for review of an intelligence and security decision, to give particular weight to any submission made by, or on behalf of, the agency head. These considerations ensure that the protection of highly sensitive or classified information, such as national security information, is appropriately considered in making such an order. 909. Clause 157 replaces subsection 35AA(2) of the AAT Act, subsection 36M(2) of the ACC Act and section 130F of the FATA. These provisions set out that the Tribunal may give directions prohibiting or restricting the publication of certain information-- clause 70 provides the Tribunal this directions power. However, the provisions of the AAT Act, ACC Act and the FATA do not set out any factors the Tribunal must consider when making such an order. 910. Subclause (3) makes clear 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. This replicates the effect of paragraph 35AA(2)(d) of the AAT Act, paragraph 36M(2)(d) of the ACC Act and section 130F of the FATA. Given the sensitive nature of the information involved in these proceedings, it is important that the Tribunal has clear powers to ensure the information is appropriately protected. Clause 158: Security certificates--responsible Minister When this section applies 911. This clause provides an ability for the responsible Minister to issue a 'security certificate' in relation to evidence to be adduced by, or a submission to be made by, or on behalf of certain people in a proceeding for review of an intelligence and security decision, other than in an exempt security record decision. These certificates can be made in relation to evidence or submissions of: • the agency head • a relevant body • an officer or employee of the agency head's agency • an officer or employee of a relevant body, or • a person connected with the agency or a relevant body. 912. Security certificates cannot be issued in exempt security record decision proceedings. These certificates are not available in these proceedings in the AAT Act. The general public interest certificates and interventions powers set out in Division 7 of Part 4 will continue to be available in exempt security record decision proceedings. Security certificates by responsible Ministers 913. Subclause (3) permits the responsible Minister to issue a security certificate, certifying that disclosing evidence or making a submission would be contrary to the public interest because it would prejudice the security, defence or international relations of the Commonwealth. 131

914. In addition, in the case of a criminal intelligence assessment decision, the responsible Minister can issue a security certificate if disclosing the evidence or making the submission would be contrary to the public interest because it would prejudice law enforcement interests. 915. Subclause (4) sets out the effect of the issuing of a security certificate. If the responsible Minister has issued a certificate, the applicant is not allowed to be present when the evidence is adduced or the submission is made. Paragraph 158(4)(a) overrides the general right of the applicant to be present when the Tribunal hears submissions made or evidence adduced by the agency head or a relevant body, provided for in subclause 149(2). The applicant's representative is also not allowed to be present when the evidence is adduced or the submission is made, unless the responsible Minister consents to their presence. 916. Subclauses (3) and (4) are equivalent to subsections 39A(8) and (9) and 39BA(11) and (12) of the AAT Act, subsections 36K(8) and (9) of the ACC Act and subsections 130G(8) and (9) of the FATA. They have updates as a result of consolidation of the provisions and to reflect modern drafting practices. These do not affect the operation or effect of these provisions. Subclauses (3) and (4) also allow the responsible Minister to issue a security certificate in reviews of preventative detention decisions. 917. In proceedings for review of intelligence and security decisions in the Intelligence and Security jurisdictional area, there will be significant amounts of sensitive information involved. While it is critical that the Tribunal is provided with all information so it can undertake the review process, proceedings in the Intelligence and Security jurisdictional area will necessarily involve sensitive information that should not be disclosed to others--including the applicant. These certificates are intended to ensure the Tribunal is provided with all information, but that sensitive information is adequately protected. 918. Subclause (5) is included to assist readers and clarify that a security certificate is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act (which means that it does not have to be registered or published). Delegation--security clearance decisions and security clearance suitability assessments 919. Subclause (6) provides for the ASIO Minister to delegate the Minister's powers under subclause (3) to the Director-General of Security, or to an ASIO employee or ASIO affiliate who holds or is acting in a position in ASIO that is equivalent to or higher than a position occupied by an SES employee. 920. Subclause (7) requires a delegate to comply with any written directions from the Minister, if they exercise the power delegated under subclause (6). This is equivalent to subsections 39BA(22) and (23) of the AAT Act, with some substantive changes to clarify that the Minister may also delegate the power to the Director-General of Security. 921. The effect of subclauses 158(6) and (7) is to ensure that a person authorised by the Minister is of an appropriate level of seniority and experience to certify that the disclosure of evidence or the making of a submission in a proceeding would prejudice the security, defence or international relations of the Commonwealth. 132

Offence 922. Subclause (8) provides that the applicant's representative commits an offence if a certificate is in place, and they are present when relevant evidence is adduced or a submission made and the representative discloses the evidence or any information that was part of the submission to the applicant or to any other person. This offence carries a penalty of two years' imprisonment. This offence is equivalent to existing offences in subsections 39A(10) and 39BA(13) of the AAT Act, subsection 36K(10) of the ACC Act and subsection 130G(10) of the FATA in intent and operation. It has updates as a result of consolidation of the provisions and to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 159: Sensitive information certificates--Director-General of Security When this section applies 923. This clause provides an ability for the Director-General of Security to issue a sensitive information certificate in proceedings for review of a security clearance decision or a security clearance suitability assessment. The ability to issue a sensitive information certificate ensures that information is appropriately protected during review proceedings, which is fundamental to the integrity of the vetting process and protection of Australia's national security. Sensitive information certificates 924. Subclause (2) provides that the Director-General may certify that disclosure of sensitive information contained in a document given to the Tribunal by the Director-General in relation to a proceeding would be contrary to the public interest, including because it would prejudice the security, defence or international relations of the Commonwealth, reveal information that has been disclosed to ASIO in confidence, or any other reason where the Commonwealth could claim in a judicial proceeding that the information should not be disclosed. 925. The Director-General may also certify that disclosure of the information could reveal the methodology underlying a psychological assessment of the person who applied for the decision or assessment. This is equivalent to subsection 39C(4) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 926. For example, sensitive information certificates can be issued in relation to security clearance standards, which the Director-General of Security may provide to the Tribunal under clause 143, certifying that the information in those standards should not be disclosed because it would be contrary to the public interest. Such an ability is required to ensure sensitive information is appropriately protected in review proceedings. 927. Subclause (3) is included to assist readers and clarify that a sensitive information certificate is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act (which means that it does not have to be registered or published). Effect of certificate 928. Subclause (4) sets out the effect of the issue of a sensitive information certificate. If such a certificate is given, the Tribunal has an obligation to ensure the sensitive information is not disclosed to the applicant or any person other than: 133

• the Director-General of Security or their representative, or • a member, Principal Registrar or staff member of the Tribunal, in the course of the performance of that person's duties. 929. However, subclause (5) clarifies that this non-disclosure obligation does not apply where the applicant, or a person representing the applicant, has already been lawfully provided the information, or where the Director-General of Security consents to disclosing the information to the applicant. 930. These subclauses are equivalent to subsections 39C(5), (6) and (7) of the AAT Act. Minor updates have been made to reflect modern drafting practices. These do not affect the operation or effect of the provision. Authorisations 931. Subclause (6) provides for the Director-General to authorise, in writing, a person for the purposes of clause 159 if the person is an ASIO employee or ASIO affiliate who holds or is acting in a position in ASIO that is equivalent to or higher than a position occupied by an SES employee. This is equivalent to subsection 39C(9) of the AAT Act. Minor updates have been made to reflect modern drafting practices. These do not affect the operation or effect of the provision. The effect of this subclause is to ensure that a person authorised by the Director-General is of an appropriate level of seniority and experience to certify that the disclosure of sensitive information contained in a document given to the Tribunal by the Director-General in relation to a proceeding would be contrary to the public interest. Clause 160: Protecting identities of persons giving evidence 932. This clause provides that, in a proceeding in the Intelligence and Security jurisdictional area, the Tribunal has an obligation to ensure the identity of a person is not revealed if the person is giving evidence on behalf of an agency within the NIC, where the head of that agency makes a request for such protection. This is equivalent to subsections 39A(11) and 39BA(14) of the AAT Act, subsection 36K(12) of the ACC Act and subsection 130G(11) of the FATA. It has updates as a result of consolidation of the provisions and to reflect modern drafting practices. These do not affect the operation or effect of the provision. 933. Clause 160 broadens the obligation to apply to any proceeding in the Intelligence and Security jurisdictional area. At various times during a proceeding in the Intelligence and Security jurisdictional area, a person may give evidence to the Tribunal on behalf of the NIC agency. It is appropriate and necessary that, if requested, the Tribunal protect the identity of employees across the NIC. Clause 161: Public interest certificates--responsible Minister 934. This clause provides that the responsible Minister may, in certain circumstances, certify in writing that it would be contrary to the public interest for certain information, or the content of a certain document, to be disclosed in proceedings for review of an intelligence and security decision, except for exempt security record decisions. This clause is equivalent to section 39B of the AAT Act, section 36L of the ACC Act and section 130H of the FATA. It has updates as a result of consolidation of the provisions and to reflect modern drafting practices. These do not affect the operation or effect of the provision. 134

When this section applies 935. Subclause (1) excludes the ability for an Attorney-General to issue public interest certificates or to intervene for public interest proceedings in reviews of an intelligence and security decision under Division 7 of Part 4 of the Bill. This subclause is equivalent to subsections 36(1AA), 36A(1AA), 36B(1) and 36C(1AA) of the AAT Act, paragraph 36S(c) of the ACC Act and paragraph 130N(c) of the FATA. It has updates as a result of consolidation of the provisions and to reflect modern drafting practices. These do not affect the operation or effect of the provision. 936. Currently, public interest certificates in exempt security record decision proceedings are issued by the Attorney-General under section 36 of the AAT Act. Clause 161 provides for this arrangement to continue. The general public interest certificates and interventions powers set out in Division 7 of Part 4 will continue to be available in exempt security record decision proceedings. 937. Subclause (1) also provides that clause 112 (notice of decision and statement of reasons--other proceedings) does not apply to the extent it would apply in relation to anything done under clause 161. The notification requirements set out in clause 112 should not apply in relation to clause 161, these are separately captured in subclause 161(9). Public interest certificate 938. Subclause (2) provides the reasons for which the responsible Minister may certify that disclosure would be contrary to the public interest, including: • that the disclosure would prejudice the security, defence or international relations of the Commonwealth • that the disclosure would involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet • if the proceeding is for review of a criminal intelligence assessment--that the disclosure would prejudice law enforcement interests, or • any other reason where the Commonwealth could claim in a judicial proceeding that the information should not be disclosed. 939. Subclause (3) is included to assist readers and clarify that a public interest certificate given by the responsible Minister is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act (which means that it does not have to be registered or published). Effect of certificate 940. Subclause (4) outlines that a person must still disclose information or provide a document to the Tribunal, even though it is subject to a public interest certificate. This is necessary to ensure the Tribunal receives all relevant information to enable it to conduct the review. 941. Recognising that the effect of subclause (4) is to provide the Tribunal with highly sensitive information, subclause (5) obliges the Tribunal to do all things necessary to ensure that the information or document is not disclosed or given to any person other than a member of the Tribunal, the Principal Registrar or a staff member of the Tribunal, in the course of the performance of their duties. This is required to ensure 135

that Tribunal members and staff can carry out their duties as required, while balancing the need to protect the information. 942. When the information is in a document, the Tribunal must also return the document to the agency from which it came as soon as practicable after the Tribunal has finished considering the document. This ensures the continued protection of the document, once the Tribunal no longer requires the document itself. This subclause is equivalent to paragraph 39B(3)(b) of the AAT Act, paragraph 36L(4)(b) of the ACC Act and paragraph 130H(3)(b) of the FATA, with some substantive changes to reflect practical considerations. These provisions require the document to be returned to the person who provided the document. Paragraph 161(5)(b) alters this to 'the agency from which it came'. It may be impracticable for the Tribunal to return the document to the person who provided it--for example, due to leave arrangements or staff turnover. As provided for in subclause 133(2), the requirement to return a document to the agency is subject to Division 6 of Part 7 (sending and disclosing documents). Tribunal may allow disclosure in limited cases 943. Subclauses (6) and (7) enable the Tribunal discretion to disclose information or documents which are subject to a public interest certificate in very specific circumstances. This discretion is only enlivened where the certificate does not specify that disclosure would: • prejudice the security, defence or international relations of the Commonwealth • involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of Cabinet, or • prejudice law enforcement interests. 944. Before exercising this discretion, the Tribunal must consider certain factors. As a primary consideration, the Tribunal must consider the principle that it is desirable, in the interests of ensuring the effective performance of the Tribunal' s functions, for the parties to be aware of all relevant matters and information. However, the Tribunal must also have regard to any reason specified in the certificate as to why disclosure would be contrary to the public interest. 945. These subclauses are equivalent to subsections 39B(5) and (6) of the AAT Act, subsections 36L(6) and (7) of the ACC Act and subsections 130H(5) and (6) of the FATA. Updates have been made as a result of consolidation of the provisions and to reflect modern drafting practices. These do not affect the operation or effect of the provision. Responsible Minister is party to proceeding 946. Subclause (8) provides that the responsible Minister is a party to the proceeding if a public interest certificate is given, certifying (consistent with paragraph (2)(d) rather than paragraphs (2)(a) to (c)) that disclosure of information or a document would be contrary to the public interests for any 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. This ensures the responsible Minister is able to take part in the proceeding and make submissions to the Tribunal about the public interest decision. 136

Notice of public interest decisions 947. Where the Tribunal exercises its discretion to make information or a document available under subclause (6), subclause (9) obliges the Tribunal to give each party to the proceeding reasons for that decision as soon as practicable. Exclusion of other laws 948. Subclause (10) clarifies that, where a public interest certificate has been issued, other laws relating to the public interest that would otherwise apply in relation to the disclosure of information or documents in a proceeding in the Tribunal are excluded. This is equivalent to subsection 39B(8) of the AAT Act, subsection 36L(9) of the ACC Act and subsection 130H(8). It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 162: Non-disclosure certificates under other Acts 949. For some intelligence and security decisions, the legislation under which the decision was made allows the agency head to issue a certificate permitting non-disclosure of information to the applicant in informing them of the original decision. These certificates may be issued on the grounds that it would be prejudicial to security and, in relation to a criminal intelligence assessment, prejudicial to law enforcement interests to disclose the information to the applicant. These certificates are issued under: • subsection 36C(5) of the ACC Act--in relation to criminal intelligence assessments • paragraph 38(2)(b) of the ASIO Act--in relation to security assessments • subsection 83C(6) of the ASIO Act--in relation to security clearance decisions, and • paragraph 83A(4)(b) of the ASIO Act--in relation to security clearance suitability assessments. 950. These certificates must be provided to the Tribunal under subclause 141(3). 951. Clause 162 is equivalent to subsection 39B(10) of the AAT Act and subsection 36L(11) of the ACC Act, with some substantive changes to clarify the effect of the lodgement of these certificates to the Tribunal. This broadly provides that those certificates, once lodged with the Tribunal, have the same effect as a Ministerial public interest certificate. This ensures that appropriate information protection processes are put in place because the disclosure of that information has been certified to be contrary to security or law enforcement interests. 952. Subclause (2) outlines that a person must still provide the information or document to the Tribunal, even though it is subject to the certificate. This is important to ensure the Tribunal receives all relevant information to enable it to conduct the review. 953. Subclause (3) obliges the Tribunal to do all things necessary to ensure that the information or document is not disclosed or given to any person other than a member of the Tribunal, the Principal Registrar or a staff member of the Tribunal, in the course of the performance of their duties. This is required to ensure that Tribunal members and staff can carry out their duties as required. 137

954. When the information is in a document, the Tribunal must also return the document to the agency from which it came as soon as practicable after the Tribunal has finished considering the document. This ensures the continued protection of the information, once the Tribunal no longer requires the document itself. Division 5--Decisions on review Subdivision A--Limits on certain decisions Clause 163: Security clearance decisions 955. This clause sets out the decisions the Tribunal may make on review of a security clearance decision. This clause applies instead of clause 105, which provides the general powers available to the Tribunal on a review of a reviewable decision. This clause also clarifies that clause 112 (notice of decision and statement of reasons-- other proceedings) does not apply in relation to security clearance decisions. This is necessary because Subdivision B of Division 5 of Part 6 sets out the requirements for the recording and communication of decisions made by the Tribunal in security clearance decision proceedings. 956. Subclause (2) provides that the only powers available to the Tribunal in relation to a security clearance decision are to affirm the decision or set aside the decision and remit the matter back to ASIO for reconsideration, in accordance with any orders or recommendations from the Tribunal. This clause is equivalent to subsection 43(1AA) of the AAT Act in intent and operation. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 957. Subclause 3 clarifies that, if a security clearance decision is stayed under clause 32, then clause 107 continues to have effect, as if the decision was made under clause 105. While generally clause 105 does not have effect in relation to security clearance decision reviews, it is important that this is qualified so that clause 107 continues to operate effectively. Clause 164: Preventative detention decisions 958. This clause provides that the general powers available to the Tribunal on review of a reviewable decision do not apply to proceedings for review of preventative detention decisions. The note refers readers to subsection 105.51(7) of the Criminal Code, which sets out the powers available to the Tribunal on review of a preventative detention decision. 959. This clause clarifies that the requirements in clause 111 to provide notice of the decision and a statement of reasons applies to proceedings for review of preventative detention decisions. Subdivision B--Recording and communicating decisions Clause 165: When this Subdivision applies 960. This clause provides that Subdivision B of Division 5 of Part 6 applies in relation to a proceeding for review of an intelligence and security decision, other than exempt security record decisions and preventative detention decisions. It applies instead of clause 111 (notice of decision and statement of reasons--review of reviewable decision). 138

961. Subdivision B of Division 5 of Part 6 provides for the making and recording of findings and communication of these decisions made by the Tribunal in the Intelligence and Security jurisdictional area. It is appropriate that these provisions apply instead of clause 111, because of the nature of the findings the Tribunal is required to make and record in these proceedings as well as to ensure the appropriate protection of the sensitive nature of information which may form the basis of the Tribunal's decision. Clause 166: Making and recording findings 962. Subclause (1) provides that the Tribunal must make and record its findings in relation to the reviewable decision, which may state the opinion of the Tribunal as to the correctness of, or justification for, any opinion, advice or information contained in the decision. This is equivalent to subsections 43AAA(2) and 43AAB(2) of the AAT Act, subsection 36N(2) of the ACC Act and subsection 130K(1) of the FATA. It has updates as a result of consolidating the provisions and to reflect modern drafting practices. These do not affect the operation or effect of the provision. 963. However, subclause (2) provides that the Tribunal's findings cannot have the effect of superseding any information that is, or is taken to be, part of the decision unless those findings state the Tribunal's opinion that the information is incorrect, incorrectly represented, could not reasonably be relevant to the requirements of security, or could not reasonably be relevant for the purposes of having regard to whether there is intelligence or information that suggests the person may commit, or may assist another person to commit, a serious and organised crime. This is equivalent to subsections 43AAA(3) and 43AAB(3) of the AAT Act and subsection 36N(1) of the ACC Act. Updates have been made as a result of consolidating the provisions and to reflect modern drafting practices. These do not affect the operation or effect of the provision. 964. These provisions are intended to provide guidance as to how to appropriately make and record findings. These protections are also intended to ensure that the Tribunal does not make a finding that would have the effect of superseding the information that was part of the decision, given the nature of the information, except in defined circumstances. Clause 167: Communicating decisions 965. This clause sets out the procedure by which the Tribunal must communicate its decision and findings in relation to a proceeding for review of particular intelligence and security decisions in line with clause 165. This clause replicates existing procedural requirements set out in the AAT Act, ACC Act and FATA in relation to those relevant decisions. 966. Subclauses (1) and (2) oblige the Tribunal to given written notice of its decision, and copies of its findings, to the applicant, the agency head and the responsible Minister. This is equivalent to subsections 43AAA(4) and 43AAB(4) of the AAT Act, subsection 36N(3) of the ACC Act and subsection 130K(2) of the FATA. It has updates as a result of consolidating the provisions and to reflect modern drafting practices. These do not affect the operation or effect of the provision. The notice must also set out the right of the party to appeal to the FCA under Division 2 of Part 7. This requirement is important to build transparency and trust in the Tribunal, by ensuring 139

that the parties fully understand the decision and any next steps they can take if they disagree with it. 967. The agency head is obliged to provide the notice and findings to each relevant body under subclause (3). This replaces subsections 43AAA(4) and 43AAB(4) of the AAT Act and subsection 36N(3) of the ACC Act, which oblige the Tribunal to give these documents to the relevant body. This reflects that, in practice, the agency head is better placed than the Tribunal to identify and contact other agencies who have participated, or may have an interest in the outcome of the review. As with the approach in clause 139, it is appropriate that the party agency is responsible for engagement with the relevant body. 968. Subclause (4) provides the Tribunal flexibility to determine on a case-by-case basis whether to give its decision and findings orally, before giving them in writing. 969. Subclause (5) provides the Tribunal a directions power in relation to the disclosure of its findings. Where the whole or a particular part of the Tribunal's findings relate to a matter that has not already been disclosed to the applicant, these findings do not have to be provided to the applicant, or the relevant body. This is equivalent to subsections 43AAA(5) and 43AAB(5) of the AAT Act, subsection 36N(4) of the ACC Act and subsection 130K(3) of the FATA. It has updates as a result of consolidating the provisions and to reflect modern drafting practices. These do not affect the operation or effect of the provision. The power in subclause (5) reflects that findings may contain sensitive information which must be protected. The intention of this provision is that the Tribunal may prepare two sets of findings: one that excludes sensitive information and is given to the applicant; and, a more complete set of findings, which includes that sensitive information and is given to the agency and the responsible Minister. 970. Subclause (6) sets out that the Tribunal must give written notice and findings by the time specified in the practice directions, or otherwise, within 28 days. This aligns with the timeframe in which the Tribunal must provide its decisions in other matters, set out in subclause 111(3). 971. Subclause (7) clarifies that a failure by the Tribunal to comply with the obligations set out in clause 167 does not affect the validity of the Tribunal's decision. This ensures that, where an administrative error has resulted in the Tribunal not complying with the obligations set out in clause 167, the Tribunal's decision remains valid. For example, if the agency head failed to give the notice and findings to each relevant body (as required by subclause 167(3)), this should not have the effect of invalidating the Tribunal's decision. This is particularly so as this requirement is not within the control of the Tribunal. Similarly, it would not be appropriate for the Tribunal's decision to be invalidated if the Tribunal, through administrative error, failed to inform the applicant of their right to appeal to the FCA. 972. Subclause (8) clarifies that other provisions of Part 6 which prohibit or restrict the disclosure of information or documents continue to have effect in relation to the Tribunal's decision and findings. Clause 168: Findings relating to procedures or practices of agency 973. This clause permits the Tribunal to make comments on matters relating to procedures or practices of the agency that have come to the Tribunal's attention as a result of the review and provide them to the agency head and responsible Minister. The Tribunal 140

may provide these comments with the findings given to the agency head and the responsible Minister. This is equivalent to subsections 43AAA(7) and (8) and 43AAB(7) and (8) of the AAT Act, subsections 36N(6) and (7) of the ACC Act and subsections 130K(6) and (7) of the FATA. It has updates as a result of consolidating the provisions and to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 169: Applicant may publish findings 974. This clause permits the applicant to publish the Tribunal's decision and findings the applicant was provided under clause 167, subject to any order of the Tribunal. Allowing the applicant to publish the Tribunal's findings reflects the principle of open justice. However, given the sensitive nature of the information involved in proceedings in the Intelligence and Security jurisdictional area, the Tribunal should be able to make orders to ensure that information is appropriately protected. This is equivalent to subsections 43AAA(6) and 43AAB(6) of the AAT Act, subsection 36N(5) of the ACC Act and subsection 130K(5) of the FATA. It has updates as a result of consolidating the provisions and to reflect modern drafting practices. These do not affect the operation or effect of the provision. 141

PART 7--APPEALS AND REFERENCES OF QUESTIONS OF LAW TO THE FEDERAL COURT 975. This Part makes provision for appeals on questions of law and referrals of questions of law to be made to the FCA. Division 1--Preliminary Clause 170: Simplified outline of this Part 976. This clause provides a simplified outline of this Part. 977. The simplified outline assists readers to understand the substantive provisions of this Part. The outline is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions of the Bill. Clause 171: Part applies whether Tribunal's power is conferred by Commonwealth, State or Territory law 978. The Tribunal does not deal exclusively with decisions made under Commonwealth law. Some State legislation (such as those implementing co-operative State/Territory/Commonwealth schemes) may confer jurisdiction on the Tribunal. This is already the case for the AAT, such as with the Water Efficiency Labelling Scheme. 979. As a result of the High Court's decision in Re Wakim; ex parte McNally (1999) 198 CLR 511, the States cannot themselves confer jurisdiction on the FCA to deal with questions of law arising out of the exercise by a Commonwealth officer or body of powers and functions conferred by State laws. However, the High Court recognised in Re Cram; ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117 that, in general, where a Commonwealth officer or authority exercises a power or function validly conferred by State law, the officer or authority remains a Commonwealth officer or authority, amenable to federal judicial review. 980. This clause clarifies that Part 7 applies to a Tribunal proceeding whether the power to apply to the Tribunal was conferred by an enactment of the Commonwealth, or by a law of a State, the Australian Capital Territory, or the Northern Territory. This clause is equivalent to section 43B of the AAT Act, but explicitly mentions the two internal Territories rather than relying on their inclusion in a definition of 'State' as in the AAT Act. 981. Where the Tribunal is exercising power conferred on it by a State or Territory law, Part 7 has effect so that any reference in Part 7 to another clause of the Bill is treated as if that other clause applied as the relevant State or Territory law. This clause ensures that appeals and references on questions of law may be made to the FCA in relation to all proceedings in the Tribunal. Division 2--Appeals on questions of law 982. It is important that the Tribunal is accountable for the legality of its decisions. As such, this Division provides an avenue of appeal to the FCA for parties who believe a decision of the Tribunal is legally incorrect. The ability to appeal enhances transparency and promotes confidence in the quality of the Tribunal's decision-making. 142

Subdivision A--Appeals on questions of law Clause 172: Party may appeal 983. This clause enables a party to a proceeding to appeal to the FCA, on a question of law, from the decision of the Tribunal in the proceeding. 984. Subclause (1) is equivalent to subsection 44(1) of the AAT Act with one minor change. The phrase 'the decision' (as opposed to 'any decision') clarifies that it is generally the final decision in a proceeding that may be appealed, as held in Director-General of Social Services v Chaney (1980) 3 ALD 161. The effect of the provision is the same. 985. Note 1 under this subclause highlights that there is an alternative pathway to appeal to the FCFCOA (Division 2) for certain child support matters. Note 2 refers the reader to provisions in the Migration Act to ascertain when a party in migration and protection matters can appeal to the FCA or FCFCOA (Division 2). There are alternative pathways to make an application for judicial review of most migration matters. These pathways are established in the relevant Acts. 986. Subclause (2) provides that a decision of the President under clause 128 to refer, or refuse to refer, a Tribunal decision to the guidance and appeals panel is not appealable to the FCA. This provides certainty to the parties about whether or not a matter will be referred to the guidance and appeals panel, and prevents unnecessary delay in the progress of a matter. This subclause is for the avoidance of doubt. It is noted that, if the President makes a decision to refuse to refer a Tribunal decision to the guidance and appeals panel, it remains open to a party to appeal the Tribunal decision to the FCA under this clause. As an application for referral of a Tribunal decision to the guidance and appeals panel is not a proceeding (see explanation above of clause 123), clause 172 does not apply. Clause 173: Decisions about standing 987. This clause allows a person to appeal to the FCA where the Tribunal has decided that the person's interests are not affected by a reviewable decision. This might occur where the person has applied for review under clause 17, applied to become a party to a proceeding under clause 22, or attempted to request reasons for a decision under clauses 268 and 270. This clause is equivalent to subsection 44(2) of the AAT Act, with minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 174: Time and manner for making appeals 988. This clause stipulates the timeframes in which a person must lodge an appeal to the FCA. They are outlined in Table 2 below: 143

Table 2--Timeframes for lodging FCA appeal Situation Timeframe within which person must lodge an appeal Where the Tribunal is required to give a No later than 28 days after the Tribunal statement of reasons (under clause 111 or gives the statement of reasons 167) Where a person has the right to request a No later than 28 days after the Tribunal statement of reasons, and makes that gives the statement of reasons request (under clause 112) Where a person has the right to request a No later than 28 days after the last day that statement of reasons, but does not make that they could have requested a statement of request (under clause 112) reasons In any other case No later than 28 days after the party or person is given the decision 989. Despite these timeframes, the FCA has discretion to extend the time for lodging an appeal (subclause (2)). 990. This clause has substantive changes from subsections 44(2A) and (2B) in the AAT Act. The timeframe for lodgement of an appeal from a substantive decision on review of a reviewable decision starts from when a person is given the written reasons for a decision, rather than when they are given the decision itself. This change enables potential appellants to assess their prospects of success on appeal - by reference to written Tribunal reasons - which can help them decide whether to lodge an appeal. It reflects the principle that parties should be given a reasonable opportunity to understand the decision that has been made before appealing. Under subclause 112(2), the Tribunal is required to provide written reasons for all decisions on review of a reviewable decision. 991. The time limits in this clause strike a balance between ensuring parties have adequate time to decide whether to appeal the decision, and providing certainty to parties that once the time period elapses, they know their matter is finally concluded, subject to the FCA extending the period. 992. Subclause (3) acknowledges that a person may choose to apply to refer a decision of the Tribunal to the guidance and appeals panel. If the President refuses that application, the person should not be disadvantaged through a shorter time period to apply to the FCA. This clause provides that the time period between the person seeking leave and the President determining that leave application should not be counted towards the 28 days for lodging an appeal to the court. 993. Subclause (4) stipulates that an appeal to the FCA must be made in the manner prescribed by the Rules of Court under the FCA Act. It is appropriate for the FCA to determine how an appeal should be filed. This subclause is equivalent to 144

paragraph 44(2A)(b) of the AAT Act, with minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 175: Constitution of the Federal Court 994. This clause provides that, if the Tribunal decision was given by a member who is a Judge or a Tribunal constituted by, or including at least one member who is a Judge, the appeal must be heard by a Full Court (generally comprising three judges). Given the significant experience and expertise that judicial members bring to Tribunal decision-making, it is appropriate that any review of their decisions are performed by the Full Court, as opposed to another FCA Judge sitting alone. 995. Subclause (2) prescribes other circumstances where the appeal may be heard by a Full Court. These circumstances allow for a matter to be heard by the Full Court if the matter was one determined at a sufficiently senior level within the Tribunal. 996. The circumstances prescribed by subclause (2) are: first, that the Tribunal decision was given by one or more Non-Judicial Deputy Presidents, or by the Tribunal as constituted for the purposes of a proceeding by the guidance and appeals panel. Second, the Chief Justice of the Court must consider it appropriate, following consultation with the President. This ensures the Chief Justice is able to allocate and manage the FCA's resources and caseload effectively, informed by the President's assessment of whether the particular matter warrants a Full Court consideration. 997. This clause has substantive changes from subsection 44(3) of the AAT Act, minimising the circumstances which require a Full Court and giving greater discretion to the Chief Justice to determine when an appeal should be heard by the Full Court. This provides the FCA more flexibility to determine the appropriateness and necessity of a Full Court hearing. The clause also contains updates to account for the existence of the guidance and appeals panel. Subdivision B--Jurisdiction and powers of the FCA Clause 176: Federal Court has jurisdiction 998. For the appeal process to be effective, it is essential that the FCA has the necessary jurisdiction to hear and determine appeals from the Tribunal. This clause confers jurisdiction on the FCA to hear and determine the appeal for the purposes of section 19 of the FCA Act. The clause provides that the FCA must hear and determine an appeal from the Tribunal on a question of law. 999. It also clarifies that the FCA may make any orders it deems appropriate based on its decision, including (but not limited to): • affirming or setting aside the Tribunal's decision • remitting a matter to be decided again by the Tribunal. The Court may order that the Tribunal review the remitted matter with or without taking additional evidence. 1000. To avoid doubt, this provision does not prevent the FCA from transferring an appeal to the FCFCOA (Division 2) under clause 179. 1001. This clause is equivalent to subsections 44(3), (4) and (5) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 145

Clause 177: Court may make findings of fact 1002. This clause enables the FCA to make findings of fact in an appeal on a question of law. It is equivalent to subsections 44(7) and (8) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision, and do not expand the FCA's ability to make findings of fact. The operation of this provision, as set out below, was interpreted by the Full Court of the FCA in Haritos v Federal Commissioner of Taxation (2015) 33 FCR 315. The clause is intended to operate consistently with that interpretation. 1003. The clause provides that the Court may only make findings of fact that are consistent with previous findings made by the Tribunal (unless that finding was due to an error of law), and where it is convenient for the Court to make the finding. 1004. When determining convenience, the Court must consider the following: • whether it is necessary to establish the fact • how the court would go about establishing the fact • whether it will lead to a quick and efficient resolution of the whole matter (noting the Tribunal objective of providing a quick mechanism of review) • the expense and delay to the parties of the Court making the finding of fact (instead of the Tribunal) • whether any party considers it appropriate for the Court to make the finding (instead of the Tribunal) • anything else the Court considers relevant. 1005. Subclause (3) also clarifies when making a finding of fact, the Court may take new evidence, and also consider evidence already provided during the Tribunal proceeding. This enables the efficient resolution of FCA appeals. Clause 178: Operation and implementation of Tribunal's decision 1006. This clause provides that a decision of the Tribunal operates regardless of an appeal to the FCA (subclause (1)). 1007. However, the clause also provides that the FCA may make an order staying or otherwise affecting the operation or implementation of the Tribunal's decision (subclause (2)). This clause is equivalent to section 44A of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 1008. The FCA may make an order under this clause if it considers it necessary to ensure the effectiveness of the hearing and determination of the appeal. The order could be an order to stay or otherwise affect the operation or implementation of the decision of a Tribunal (or part of that decision), or the reviewable decision to which the Tribunal decision relates (or a part of that reviewable decision) (subclause (2)). The order is subject to any conditions the Court specifies (subclause (3)). Example 1009. Person A is a full-time student and receives regular payments from Study Support Agency under the Study Support Act 2000. They receive a debt notice from Study Support Agency on the basis that they have been overpaid. The notice requires payment within 90 days. After seeking internal review they make an application for 146

review in the Tribunal. The Tribunal decides to affirm the debt decision. Person A then applies to the FCA through clause 172, as they believe the Tribunal's decision is legally incorrect. The FCA makes an order under clause 178 staying the decision so that Person A does not have to pay the debt while the appeal is being decided. 1010. Subclauses (4) and (5) provide that the order generally remains in force until the appeal is determined, unless the order states that it applies for a certain period, and that period ends before the appeal is finally determined. Subclause (6) provides that the FCA may vary or revoke the order. Division 3--Transfer of appeals to Federal Circuit and Family Court of Australia (Division 2) Clause 179: Transfer of appeals 1011. This clause enables the FCA to transfer an appeal from the Tribunal to the FCFCOA (Division 2) (subclause (1)). It may do this either on its own motion or application of a party to the appeal (subclause (2)). The FCA may transfer an appeal to the FCFCOA (Division 2) because of efficiency or because the FCFCOA (Division 2) might otherwise be better placed to hear and decide the appeal. 1012. This clause is equivalent to section 44AA of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 1013. When deciding whether to transfer the appeal, the FCA must consider the following: • any relevant Federal Court Rules referred to in clause 181 • whether there are any matters associated with the proceeding pending in the FCFCOA (Division 2) • whether the FCFCOA has sufficient resources to deal with the appeal • whether it is in the interests of the administration of justice to transfer it in this way (subclause (3)). 1014. Subclause (4) provides that, if the matter is transferred to the FCFCOA, the FCFCOA has the same jurisdiction and powers in relation to the appeal as the FCA. In other words, the FCFCOA has jurisdiction to hear and determine the appeal, it may make such orders as it considers are necessary, and it may make findings of fact in the circumstances set out in clause 177. 1015. Subclause (5) stipulates that the FCA must not transfer an appeal to the FCFCOA if the Tribunal decision to which it relates was given by a Tribunal constituted by, or by members at least one of whom was, a Judge or a Deputy President, or if the rules prohibit it. This is because it is appropriate that appeals from decisions made by the President, a Judge or a Deputy President of the Tribunal are heard in the FCA, rather than a lower court. Clause 180: No appeal from decision to transfer 1016. This clause prohibits a person appealing from a decision of the FCA to transfer the appeal to the FCFCOA. This provides the parties with certainty about the forum in which the appeal will be heard, and prevents unnecessary delays. It is equivalent to subsection 44AA(10) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 147

Clause 181: Federal Court Rules 1017. This clause enables the Rules made under the FCA Act to provide for the transfer of appeals from the FCA to the FCFCOA. This could include (but is not limited to) factors the Court must consider when deciding whether to transfer the appeal. The clause stipulates that the FCA must consult the FCFCOA before making these Rules. This is because any transfers to the FCFCOA would have an impact on its caseload. 1018. This clause is equivalent to subsections 44AA(4), (5) and (6) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Division 4--Matters remitted to Tribunal Clause 182: When this Division applies 1019. This clause provides that the Division applies in circumstances where either the FCA, or the FCFCOA (if the appeal was transferred there), remits a decision back to the Tribunal. This is a new clause, which has been added to provide clarity to readers in accordance with modern drafting practice. Clause 183: Constitution of Tribunal 1020. This clause empowers the Tribunal to constitute a matter remitted by the FCA (or FCFCOA) as appropriate. It need not be constituted by the member (or members) who made the decision that was appealed to the Court. This allows the President to constitute the Tribunal in the most efficient and effective manner, having regard to its caseload and available members. 1021. Constituting a matter that has been remitted by the Court does not amount to reconstitution under of Subdivision D of Division 4 of Part 4. This aims to avoid doubt by clarifying that the President is constituting the Tribunal afresh for the remitted matter, and as such is not restricted by the detailed rules for reconstitution in Subdivision D of Division 4 of Part 4. 1022. This clause is equivalent to paragraph 44(6)(a) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 184: Tribunal may rely on previous proceedings 1023. To promote the quick and efficient resolution of the matter, this clause enables the Tribunal to have regard to any material or record relating to the original Tribunal proceeding (before the appeal), unless this would be inconsistent with the directions of the remitting Court. This clause is equivalent to paragraph 44(6)(b) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Division 5--Referring questions of law Clause 185: Referring questions of law 1024. This clause provides that the Tribunal may refer a question of law (that arises during a Tribunal's review) to the FCA, with the President's agreement (subclause (1)). The Tribunal may make this referral on its own initiative, or at the request of a 148

party (subclause (2)). Subclause (3) confers jurisdiction on the FCA to deal with the referral for the purposes of section 19 of the FCA Act. The FCA must determine a question of law referred to it by the President - it cannot give an advisory opinion. 1025. Filing fees, setting down fees and hearing fees are not payable in relation to a referral of a question of law by a tribunal. The provision is silent on who might be liable for costs in the event that the matter giving rise to the referral is in a costs jurisdiction in the Tribunal. This reflects that the costs position for the referral should generally follow the costs position for the matter as a whole. However, the FCA retains discretion to make a costs order in accordance with the rules of that court. 1026. This process for referring questions of law is an important mechanism for the Tribunal to clarify legal issues. Obtaining an FCA decision on a legal issue ensures consistent and expedient resolution of other matters in which the same question arises. Although historically this power has been used rarely, it remains a useful tool for the Tribunal to have available. The President's Report under clause 242 requires annual reporting on actions taken under this provision. 1027. Subclause (4) enables the Chief Justice of the Court to decide whether the question of law should be heard by the Full Court, after consultation with the President. This ensures the Chief Justice is able to allocate and manage the FCA's resources and caseload effectively, while also allowing the President to provide views on the relative importance or complexity of the matter. 1028. Subclause (5) restricts the power of the Tribunal once a question of law has been referred to the FCA. The Tribunal may not give a decision to which the question is relevant while the reference is pending. Nor can it proceed in a manner or make a decision that is inconsistent with the opinion of the FCA on the question. Doing any of these things would undermine the purpose of referring the question to the FCA in the first place. 1029. This clause is equivalent to section 45 of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Division 6--Sending and disclosing documents 1030. This Division provides for the sending of documents from the Tribunal to the FCA and the FCFCOA, and the circumstances in which those courts can disclose those documents. It facilitates access to information so the relevant court can make a decision based on all available material, while also protecting sensitive information as necessary. Clause 186: When this Division applies 1031. This clause stipulates that the Division applies where an appeal from a Tribunal decision has been made to the FCA (under clause 172), or where the Tribunal has referred a question of law to the FCA (under clause 185). 1032. This is a new clause, which has been added to provide clarity to readers in accordance with modern drafting practice. Clause 187: Sending documents 1033. This clause requires the Tribunal to send all documents to the FCA that were before the Tribunal in relation to the proceeding, and that are relevant to the appeal or 149

referred question of law (subclause (1)). This ensures the Court has all the necessary material to conduct the proceeding. 1034. Subclause (2) provides that if an appeal is transferred to the FCFCOA, the FCA must send the above documents to the FCFCOA. The FCFCOA is bound - in the same manner as the FCA - to ensure documents covered by public interest certificates, certain ministerial certificates and those relating to security clearance standards are not disclosed to anyone other than a member of the Court as constituted (see clauses 189 and 190). 1035. To avoid any doubt, subclause (3) clarifies that the FCA must still send all relevant documents to the FCFCOA if an appeal is transferred to it, despite certain provisions which generally prevent disclosure of sensitive documents or information. Those provisions are: • clause 91 relating to public interest certificates • any provision of Part 6, which sets out requirements for proceedings in the Intelligence and Security jurisdictional area • subclause 162(1) relating to non-disclosure certificates under other Acts (mentioned in column 2 of the table in subclause 162(1)), and • clause 272 relating to public interest certificates in relation to a statement of reasons. 1036. This clause is equivalent to paragraph 46(1)(a) and subparagraph 46(1)(c)(i) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 188: Returning documents 1037. This clause provides that once the FCA or FCFCOA has finalised the proceeding in relation to the appeal or reference, the relevant court must return the documents to the Tribunal. This avoids the inconvenience of the Tribunal having to collect the same material from people (including parties) again, if it continues with the matter. 1038. This clause is equivalent to paragraph 46(1)(b) and subparagraph 46(1)(c)(ii) of the AAT Act, with minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 189: Disclosure contrary to the public interest 1039. This clause requires the FCA to do all that is necessary to prevent disclosure of certain information to any people (including parties) other than a member of the Court as constituted for the proceeding (subclause (2)). Information is only protected by this clause if that information is covered by a certificate under one of the below provisions, stating that disclosure would be contrary to the public interest: • subclauses 91(1) or (2) (public interest certificates) • subclause 161(2) (public interest certificates--responsible Minister) • subclause 162(1) (non-disclosure certificates under other Acts) • subclause 272(1) (public interest certificate in relation to a statement of reasons). 1040. However, under subclause (3) the FCA must permit the information to be inspected by parties, if: 150

• the FCA is tasked with deciding whether the Tribunal should disclose the information covered by the certificate to any, or all, parties • the certificate does not specify certain reasons for non-disclosure, outlined in Table 3 below, and • the FCA decides that the matter should be disclosed, notwithstanding the certificate. Table 3--Reasons for disclosure Type of public interest certificate Reasons in certificate Commonwealth public interest Does not specify a reason related to certificates (under subclause 91(1)) security, defence or international relations of the Commonwealth, or Cabinet deliberations or decisions State or Territory public interest Does not specify a reason related to State certificate (under subclause 91(2)) or Territory Cabinet deliberations or decisions Public interest certificate issued by a Does not specify a reason related to responsible Minister (under subclause 161(2)) security, defence or international relations of the Commonwealth, Cabinet deliberations or decisions, or law enforcement interests (if the proceeding is for review of a criminal intelligence assessment) Public interest certificate in relation to a Does not specify a reason related to statement of reasons (under subclause 272(1)) security, defence or international relations of the Commonwealth, or Cabinet deliberations or decisions 1041. This clause is equivalent to subsections 46(2) and (3) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Through the operation of subclause 187(2) referred to above, the requirements in this clause also apply to the FCFCOA if an appeal is transferred to it. Clause 190: Disclosure of security clearance documents 1042. This clause ensures that any ASIO security clearance standards documents, or documents certified to contain sensitive information (that would be contrary to the public interest to disclose), are adequately protected if sent to the FCA or FCFCOA. 1043. Subclause (2) requires the Court to do everything necessary to protect the documents (or information contained in them) from disclosure to any persons other 151

than a member of the Court as constituted for the proceeding, or the Director-General of Security or their representative. 1044. The clause applies to documents sent to the FCA that: • are copies or parts of a standard certified by the Director-General of Security (in clause 143) to be: - a standard about the Commonwealth's highest level of security clearance (that was used to make the security clearance decision or security clearance suitability assessment), or - a current standard relating to the Commonwealth's highest level of security clearance, or • contain sensitive information that the Director-General of Security certifies would be contrary to the public interest, because it would prejudice national security; would reveal information disclosed to ASIO in confidence; could form the basis for a claim in a judicial proceeding that the information should not be disclosed; or could disclose the methodology underlying a psychological assessment of the relevant person. 1045. Subclause (3) clarifies that the Court does not need to prevent disclosure of the above documents or information to the applicant in the Tribunal or their representative if the documents or information have already been lawfully disclosed to them, or the Director-General consents to the disclosure. 1046. This clause is equivalent to subsections 46(3A) and (3B) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 1047. Through the operation of subclause 187(2) referred to above, the requirements in this clause also apply to the FCFCOA if an appeal is transferred. Clause 191: Disclosure to officers of the court 1048. This clause clarifies that documents, information and matters may be disclosed to officers of the relevant court who are performing their court duties - even where disclosure is otherwise prohibited under this Division. This supports the efficient operation of the courts, by ensuring that staff (such as associates and registrars) can facilitate proceedings. 1049. This clause is equivalent to subsection 46(4) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 152

PART 8--MEMBERS AND STAFF OF TRIBUNAL 1050. This Part sets out the structure and membership levels of the Tribunal (including establishing jurisdictional areas), the functions of those membership levels, and the appointment and termination processes. This Part also requires the President to set a performance standard, a code of conduct, and keep a register of interests for members. 1051. This Part provides for the position, appointment and functions of the CEO and Principal Registrar, and establishes and sets out the functions of the Tribunal Advisory Committee. This Part provides for registrars, staff members and consultants of the Tribunal, and its annual reporting requirements. Division 1--Preliminary Clause 192: Simplified outline of this Part 1052. This clause provides a simple outline of this Part. 1053. The simplified outline assists readers to understand the substantive provisions of this Part. The outline is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions of the Bill. Division 2--Members of Tribunal Subdivision A--Members and functions Clause 193: Functions of President 1054. This clause provides the functions of the President, and is a new feature of the Tribunal. The clause responds to stakeholder feedback that the President's, and other senior leaders', functions should be clear on the face of the Bill, to ensure that the roles and responsibilities of the Tribunal's senior leaders are well-defined. Sitting on a matter 1055. Paragraph (a) gives the President the function of sitting as a member on complex, significant or sensitive matters. As the most senior decision-maker appointed to the Tribunal, and a sitting FCA Judge, it is expected that the President will sit on such matters from time to time to role-model excellence in decision-making. Assignment as a jurisdictional area leader 1056. Paragraph (b) allows the President to assume the functions of a jurisdictional area leader, if assigned to that role. This function provides flexibility for the management of the Tribunal's caseload. While many jurisdictional areas will have significant workloads, several jurisdictional areas will be smaller, and could potentially be managed by the President alongside their other functions. Managing the business of the Tribunal 1057. Paragraph (c) gives the President the function of managing the business of the Tribunal. The business of the Tribunal refers to the Tribunal's core activity of conducting reviews. In discharging this function, the President may do such things as assigning members to work in particular jurisdictional areas, making practice directions to guide how members may perform their functions in relation to reviews, 153

and developing organisational structures which support the efficient discharge of the Tribunal's caseload. This function is distinct from the President's responsibility for managing the administrative affairs of the Tribunal, which is a broader concept (outlined in clause 224 of the Bill). Managing performance and conduct of members 1058. Paragraph (d) gives the President the function of managing the performance and conduct of members. Ensuring that Tribunal members are performing well and behaving appropriately is essential to maintaining public confidence and a positive workplace culture. Bullying, harassment and discrimination are unacceptable in any context, and modern workplace standards require that senior leaders are empowered to manage and take action in relation to performance and conduct issues. This function supports the President to ensure accountability in the membership of the Tribunal. Subdivision C of this Division provides the President specific powers to fulfil this function. The Tribunal's objective 1059. Paragraph (e) gives the President the function of ensuring the Tribunal operates efficiently and effectively, and continually pursues the objective outlined in clause 9 of the Bill. This function places responsibility on the President for achievement of the Tribunal's objective in an ongoing way. It is intended that the President will consider the Tribunal's objective when exercising all their functions. This paragraph is equivalent to section 18A of the AAT Act. It has minor updates to reflect modern drafting practices. Intellectual leadership 1060. Paragraph (f) gives the President the function of providing intellectual leadership to the Tribunal and promoting best practice in decision-making. It is intended that the President would role model high quality decision-making across the breadth of the Tribunal's jurisdiction. The concept of intellectual leadership also includes broader matters including building communities of practice in relation to particular subject matter or cohorts of decisions, sharing key decisions and relevant research, and monitoring decisions made within the Tribunal to identify opportunities for improvement. Leadership and guidance to members and staff 1061. Paragraph (g) gives the President the function of providing leadership and guidance to members and staff, and also of engendering cohesiveness and collaboration across the Tribunal. It is appropriate that the President, as head of the Tribunal, hold such a responsibility. This function responds to stakeholder feedback that the Tribunal needs to operate as a unified entity, and the Tribunal's leadership need to take a whole-of-Tribunal perspective. It also makes clear that, in addition to exercising specified functions, the President is expected to take a proactive role in exercising leadership across the organisation. Training, education, and professional development 1062. Paragraph (h) gives the President the function of promoting training, education and professional development of members of the Tribunal. 1063. Education and training is a broad category of activities, which could include developing technical skills associated with being constituted as a member such as 154

writing decisions and statements of reasons, conducting hearings, dispute resolution skills, and specific legal training. It could also include broader matters such as trauma-informed practice, cultural competency units, and training on appropriate workplace behaviour (such as workplace bullying and harassment awareness training). Professional development similarly spans a wide range of activities and may include formal and informal mentoring, acting opportunities, and supporting members to develop communities of practice and expertise relating to particular subject matter. 1064. The ability of the Tribunal to provide high quality reviews of government decisions rests on a highly skilled and trained member workforce. This function ensures that the President is required to actively consider what education, training and professional development opportunities are necessary for the Tribunal to discharge its objective, and to promote this approach to others in the Tribunal. Identify systemic issues 1065. Paragraph (i) creates the President's function 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. 1066. The Tribunal has a role in providing strong checks and balances across the breadth of government decision-making. In relation to the AAT, the Robodebt Royal Commission Report wrote on page 553: From 2016, the AAT made a series of decisions that questioned the legal basis for DHS's use of income averaging to calculate social security debts. While DHS and DSS had some processes in place to consider whether AAT decisions should be appealed, those processes were aimed at managing individual AAT decisions. There was no mechanism for ensuring AAT decisions were reviewed in any systematic way. 1067. In its role of providing independent review of government decisions, from time to time patterns of error or other systemic defects in administrative decision-making may come to the attention of the Tribunal. Under paragraph 197(5)(f) the jurisdictional area leaders have a function of monitoring systemic issues arising in their jurisdictional area and advising the President. Paragraph (i) requires the President to inform relevant Commonwealth government agencies and Ministers of those issues so that they may be addressed. The President is also required to inform the Council, which enhances transparency and supports the Council's functions of inquiring into the operation of the Commonwealth administrative law system. Other functions 1068. Paragraph (j) allows for additional functions to be conferred on the President, including in other legislation (for example, issuing warrants or notices in a persona designata capacity). This function allows flexibility in the role of the President. Engagement with civil society 1069. Paragraph (k) gives the President the function of engaging with civil society in relation to the performance of the President's functions. Civil society encompasses the diverse range of community services undertaken by charities, not-for-profit organisations and other community groups. Engagement with civil society - particularly users of the tribunals, their representatives, and peak bodies - will ensure 155

that the needs of the Tribunal's users are considered as part of the President discharging their functions. Incidental actions 1070. Paragraph (l) allows the President to do anything incidental to the performance of their functions. This provides flexibility to ensure the effective discharge of the President's functions. Clause 194: Functions of Deputy Presidents 1071. This clause provides for functions of Judicial and Non-Judicial Deputy Presidents, and is a new feature of the Tribunal. 1072. Deputy Presidents are expected to be outstanding decision-makers, with the ability to work across all areas of the Tribunal, particularly in matters that are complex, have significant implications for Commonwealth law or policy, and/or are highly sensitive. 1073. Judicial Deputy Presidents are appointed to the Tribunal from the FCA and the FCFCOA (Division 1) on a sessional basis (sessional members are called upon by the Tribunal as needed, and do not have a fixed work pattern). 1074. Experience within the AAT demonstrates the practical benefits of being able to use judicial members in legally complex, highly contentious or sensitive matters (such as sensitive freedom of information or national security matters). Having judicial members determining these types of matters reflects the importance of the matter, provides assurance of the quality of decision-making, and enhances the independence and credibility of the Tribunal. It also strengthens the link between the Tribunal and the appellate courts, which is particularly helpful when parallel cases are running in the FCA (which might happen, for example, in the taxation jurisdiction). 1075. Non-Judicial Deputy Presidents form the core of the Tribunal's senior decision-making capability - recognising that Judicial Deputy Presidents are used sparingly in matters which have a particular need to be determined by a judge. These members are highly-qualified and skilled decision-makers, and have additional functions, recognising their more regular involvement in the Tribunal's operations. Sitting on a matter 1076. Paragraphs (1)(a) and (2)(a) give Judicial and Non-Judicial Deputy Presidents the function of being constituted as a member on certain matters. Judicial and Non-Judicial Deputy Presidents are expected to be constituted to the most complex, significant or sensitive of matters. The Tribunal's objective 1077. Paragraphs (1)(b) and (2)(b) give Judicial and Non-Judicial Deputy Presidents the function of pursuing the objective outlined in clause 9 of the Bill. It is important that the Tribunal's senior leaders are required to discharge their functions in a way that supports the Tribunal's objective. This ensures a common purpose across the Tribunal, enabling a unified and consistent approach. Intellectual leadership 1078. Paragraphs (1)(c) and (2)(c) give Judicial and Non-Judicial Deputy Presidents the function of providing intellectual leadership to the Tribunal, and promoting best practice in decision-making. Deputy Presidents will be eminent and respected senior 156

leaders in the Tribunal, and will provide an example for other members to follow. This includes role-modelling high quality decision-making in the matters that they sit on, however also extends beyond this to mentoring, sharing advice and case studies, and supporting the broader development of less experienced members such that it lifts the capacity of the Tribunal. Other functions 1079. Paragraphs (1)(d) and (2)(f) allow for additional functions to be conferred on Judicial and Non-Judicial Deputy Presidents, including in other legislation (for example, issuing warrants or notices in a persona designata capacity). Incidental actions 1080. Paragraphs (1)(e) and (2)(g) allow Judicial and Non-Judicial Deputy Presidents to do anything incidental to the performance of their functions. This provides flexibility to ensure the effective discharge of the Deputy Presidents' functions. Assisting the President 1081. Paragraph (2)(d) gives Non-Judicial Deputy Presidents the function of assisting the President in the performance of the President's functions. Non-Judicial Deputy Presidents will have greater involvement in the day-to-day operations and activities of the Tribunal, and as senior leaders in the Tribunal may be required to assist the President in a range of ways. 1082. This function will ensure that there is support and assistance available to the President in the performance of the President's functions. It also ensures that Non-Judicial Deputy Presidents adopt a whole-of-Tribunal perspective in their work as the President's functions include contributing to a unified organisation. Performing jurisdictional area leader functions 1083. Paragraph (2)(e) provides for Non-Judicial Deputy Presidents to perform the functions of a jurisdictional area leader, if assigned to that role. Functions of a jurisdictional area leader are set out in subclause 197(5). Clause 195: Functions of senior and general members 1084. Senior members and general members make up the bulk of decision-making members in the Tribunal. This clause outlines the functions for these roles, and is a new feature of the Tribunal. Sitting on a matter 1085. Paragraphs (1)(a) and (2)(a) provide that general members and senior members have a function of constituting the Tribunal for the purposes of a proceeding - with senior members being expected to constitute more complex matters (reflecting their greater seniority and experience). In constituting matters a member may need to hold case conferences, gather information, make orders, conduct hearings, and write decisions. Assisting jurisdictional area leaders 1086. Paragraph (1)(b) gives senior members the function of assisting jurisdictional area leaders in the performance of their functions. The functions of a jurisdictional area leader include responding to emerging issues in caseloads, identifying and escalating systemic issues, and generally ensuring the Tribunal operates efficiently. Senior 157

members will provide support and assistance, as directed by jurisdictional area leaders, in relation to these functions. Promoting best practice 1087. Paragraph (1)(c) gives senior members the function of promoting best practice in decision-making. This could be through high quality decision-making of their own, or by sharing advice and case studies to other members to build capacity across the Tribunal. Other functions 1088. Paragraphs (1)(d) and (2)(b) provide that senior and general members may perform a number of other functions provided in the Bill (for example, senior members may be assigned as list leaders), and other functions contained in other legislation (for example, issuing warrants or notices in a persona designata capacity). Incidental actions 1089. Paragraphs (1)(e) and (2)(c) allow senior and general members to do anything incidental to the performance of their functions. This provides flexibility to ensure the effective discharge of senior and general members' functions. Subdivision B--Jurisdictional areas and lists Clause 196: Jurisdictional areas and lists 1090. This clause outlines the structure of the Tribunal, which comprises eight jurisdictional areas with the ability for the President to create and abolish lists within them. Jurisdictional areas are the overarching organisational structure of the Tribunal, and replace Divisions in section 17A of the AAT Act. Jurisdictional areas improve on the divisional structure of the AAT by supporting more harmonised practices and procedures, and by providing greater flexibility in the assignment of member resources. Subclause (1) creates the Tribunal's eight jurisdictional areas: • General jurisdictional area • Intelligence and Security jurisdictional area • Migration jurisdictional area • National Disability Insurance Scheme jurisdictional area • Protection jurisdictional area • Social Security jurisdictional area • Taxation and Business jurisdictional area, and • Veterans' and Workers' Compensation jurisdictional area. 1091. Subclause (2) provides that the President has the power to create and abolish lists within jurisdictional areas. Lists may group similar types of decisions or matters together at the discretion of the President. It is intended that lists will allow communities of practice to grow, build and maintain specialist knowledge and skills, and promote consistent approaches to case management and decision-making. The President may assign a senior member or Deputy President to lead a list, while a jurisdictional area leader would oversee the activities of all lists within their jurisdictional area. 158

1092. Subclause (3) provides that the President must consult with the Committee before creating or removing a list. This ensures that the President can receive advice on the needs of the Tribunal, including the views of stakeholders, when determining the organisational structure. This is a consultation requirement, with the President retaining responsibility for making the decision. 1093. Subclause (4) provides that the President may direct which jurisdictional area and list a matter is heard in (by directing where powers in relation to a proceeding may be exercised). Ordinarily, it is expected that the President's practice directions about the arrangement of the business of the Tribunal would enable matters to be directed to parts of the Tribunal by default. The powers and procedures of the Tribunal are not determined by the jurisdictional area, or list, that a matter is assigned to, other than proceedings in the Intelligence and Security jurisdictional area. Any specific modifications to Tribunal powers and procedures will be contained in the Act or Regulation conferring the jurisdiction on the Tribunal. 1094. Subclause (5) clarifies that any written direction given by the President in relation to which jurisdictional area or list a proceeding is allocated to is not a legislative instrument. Subclause (5) is included to assist readers and clarify that the direction is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act (which means that it does not have to be registered or published). Clause 197: Jurisdictional area leaders 1095. This clause provides for assigning leaders of the eight jurisdictional areas. Jurisdictional area leaders are responsible for leading jurisdictional areas. Jurisdictional area leaders are expected to perform important strategic and management functions, are highly skilled decision-makers and form part of the Committee. A single person may lead more than one jurisdictional area. Assignment of jurisdictional area leaders 1096. Subclause (1) provides that the Minister may assign a Non-Judicial Deputy President, or the President, to be a jurisdictional area leader for one, or more, jurisdictional areas. The Minister is required to consult the President in making the assignment. This reflects that jurisdictional area leaders are key leadership positions assisting the President within the Tribunal - with responsibilities for managing staff and caseloads alongside decision-making functions. The President is best-placed to assess and make recommendations about which Non-Judicial Deputy Presidents may be suited to take on these roles, and which jurisdictional areas may best fit their skills and abilities. 1097. Only salaried Non-Judicial Deputy Presidents are eligible to be assigned as a jurisdictional area leader. This is because the workload of a jurisdictional area leader is expected to be large and complex enough that it cannot be adequately performed by a member who does not work a regular work schedule. 1098. Subclauses (2) and (3) provide the Minister the ability to vary or revoke an assignment of a jurisdictional area leader, but only on the recommendation of the President. This satisfies a need for the flexible deployment of resources across the Tribunal at all levels, while providing safeguards against arbitrary reassignments. 1099. The President may only recommend variation or revocation of a jurisdictional area leader's assignment if the assignment has been in effect for more than six months, and the President is satisfied it would meet the operational needs of the Tribunal. 159

The six-month time period would provide stability to the Tribunal by allowing time for jurisdictional area leaders to develop familiarity with their assigned jurisdictional area and ensuring continuity. 1100. The operational needs of the Tribunal is intended to cover the balance of workloads, matters, priorities and skills across the entire Tribunal. For example, a Non-Judicial Deputy President may be assigned as a jurisdictional area leader of two jurisdictional areas, but a surge in caseload in one may necessitate a singular focus on that jurisdictional area. In this situation, the President may recommend that a jurisdictional area leader's assignment is varied to remove one jurisdictional area from the assignment. Another example would be if a new list were added to a jurisdictional area, requiring a Non-Judicial Deputy President with particular skills and experience to help establish the list and promote professional development for the members assigned to it. 1101. Subclause (4) provides that any assignment of a jurisdictional area leader by the Minister is not a legislative instrument. Subclause (4) is included to assist readers and clarify that the assignment is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act (which means that it does not have to be registered or published). Functions of jurisdictional area leaders 1102. Subclause (5) provides the management and strategic leadership functions for jurisdictional area leaders. These functions are additional to their functions as Non-Judicial Deputy Presidents, outlined above. Intellectual leadership 1103. Paragraph (5)(a) gives jurisdictional area leaders the function of providing intellectual leadership to members in their jurisdictional area and promoting best practice in decision-making. It is intended that a jurisdictional area leader would role-model high quality decision-making in relation to specific subject matter. The concept of intellectual leadership also includes broader matters including building communities of practice in relation to particular subject matter or cohorts of decisions, sharing key decisions and relevant research, and undertaking reviews of decisions made within the jurisdictional area to identify opportunities for improvement. The Tribunal's objective 1104. The President has a function to ensure the Tribunal operates efficiently and effectively, and pursues its objective. However, this cannot be achieved by the President alone. Paragraph (5)(b) gives the jurisdictional area leaders the function of assisting the President in the efficient and effective running of the Tribunal, and pursuing the objective, across all jurisdictional areas. 1105. The function is framed as 'assist[ing] the President' to ensure that it is clear that the President's direction in relation to how the Tribunal pursues its objective shapes how the jurisdictional area leaders perform their equivalent function. This clarifies responsibilities and authority within the Tribunal. Managing caseload 1106. One of the main responsibilities of a jurisdictional area leader is to manage the caseload of their jurisdictional area. Paragraph (5)(c) gives jurisdictional area leaders the function of overseeing and responding to issues and trends in their jurisdictional 160

area, in consultation with the President. Importantly, this function is expressed in relation to the whole Tribunal, not merely the specific jurisdictional area to which the jurisdictional area leader is assigned. This reflects that all jurisdictional area leaders have leadership responsibility across the Tribunal and must perform their functions in a manner consistent with the effective and efficient functioning, and achievement of the objective in clause 9, for the Tribunal as a whole. 1107. This function is not intended to refer to day-to-day case management of individual matters. Rather jurisdictional area leaders are expected to monitor the overall number of matters and timeliness of resolution, identify emerging issues in decision-making, and oversee development of strategies to support the efficient and effective resolution of matters. Paired with the function of intellectual leadership, this function gives the jurisdictional area leader scope to ensure that caseload strategies are tailored to the nature of the matters. 1108. Jurisdictional area leaders are required to consult the President in the performance of this function. Ultimately, the President remains accountable for the performance of the business of the Tribunal, with caseload management a key element to discharging this responsibility. 1109. Consultation requirements ensure that individualised or jurisdictional practice always incorporates a whole-of-Tribunal approach. This ensures that the impact of bespoke approaches on common resources (including registry staff) may be considered and that practices between jurisdictional areas are not inconsistent or duplicative. Assisting the President to manage performance and conduct 1110. Paragraph (5)(d) gives jurisdictional area leaders the function of assisting the President to manage the performance and conduct of members in their jurisdictional area. While the President retains ultimate responsibility for managing the performance and conduct of members, jurisdictional area leaders will provide day-to-day assistance with promoting the conduct standard and performance benchmark, ensuring members understand their obligations and how they are tracking and managing issues as they arise (in consultation with the President). Training, education and professional development 1111. Paragraph (5)(e) gives jurisdictional area leaders the function of providing training, education, and professional development opportunities to members in their jurisdictional area. As noted above, it is expected that jurisdictional area leaders will be leaders in the specific subject matter of their jurisdictional area, and will build communities of practice in relation to particular subject matter, legal frameworks or cohorts of decisions. This function makes clear that jurisdictional area leaders are responsible for upskilling the members within their jurisdictional area, and providing education and training to support this. 1112. It is not expected that discharging this function necessarily involves the expenditure of Tribunal funds on training. Education and training may be delivered internally, such as through sharing examples of well written and reasoned decisions, by establishing shadowing and mentoring programs within the jurisdictional area and/or through providing feedback on member performance. 161

Identifying systemic issues 1113. Paragraph (5)(f) gives jurisdictional area leaders the function of identifying and informing the President of systemic issues in decision-making arising in the caseload of the jurisdictional area. It is expected that jurisdictional area leaders would identify novel issues, patterns and trends, and matters raising broader issues of administrative law or practice. If a systemic issue is identified, the jurisdictional area leader also has the function of informing the President. This could be through the Committee. As discussed at clause 193 above, the President has reporting functions associated with systemic issues. 1114. This will also support the President to identify matters for referral to the guidance and appeals panel, which can hear matters that raise issues of significance to administrative decision-making. Decisions of the guidance and appeals panel will improve the quality and consistency of decision-making, and address systemic issues within the caseload of the Tribunal and across the Commonwealth. Acting jurisdictional area leaders 1115. Subclause (6) allows the Minister to assign a Non-Judicial Deputy President or a senior member to act as a jurisdictional area leader. Given the active leadership and management role that jurisdictional area leaders are expected to perform, leaving positions vacant while the incumbent is on leave or while a new jurisdictional area leader is sought could cause significant disruption to the Tribunal's work. 1116. An acting assignment can only be made if there is a vacancy in the role of that jurisdictional area leader, or the jurisdictional area leader is absent or unable to perform their duties. The acting assignment can only be of a member appointed on a salaried basis, must be in consultation with the President and cannot be more than three months. This promotes efficient filling of vacancies in these roles on a more permanent basis. 1117. The ability to act senior members as a jurisdictional area leader provides development opportunities for those members. It also assists with the broader management of Tribunal resources, particularly if an acting assignment must be made at short-notice and other salaried Non-Judicial Deputy Presidents are otherwise assigned. Clause 198: Assignment of members to lead lists 1118. Establishment of lists under subclause 196(2) will allow communities of practice to grow. List leaders will facilitate this by building and maintaining specialist knowledge and skills, and promoting consistent approaches to case management and decision-making. This is a new provision. 1119. Under subclauses (1) and (2) the President can assign a Deputy President or a senior member to lead a list, and can vary or revoke these assignments as needed (in consultation with affected jurisdictional area leaders). A person can lead more than one list - which may be appropriate where there are several lists with relatively low caseloads. It is expected that list leaders would typically be senior members, but there may be circumstances where a more senior assignment is warranted. 1120. Subclause (3) provides that the President can assign a Deputy President or a senior member to act as a list leader if there is a vacancy in the position of that list leader, or the list leader is absent or unable to perform their duties. Acting arrangements support 162

the efficient operation of the Tribunal by enabling coverage of responsibilities when members are on leave or unavailable. 1121. In making, varying or revoking a list leader assignment (including acting assignments), the President must consult with the jurisdictional area leader of each list affected (subclause (4)). Given the close working relationships between jurisdictional area leaders and list leaders within their jurisdictional area (and the potential implications on a member's workload of taking on an acting period as a list leader), this consultation requirement ensures that decisions about resources are made with the benefit of the views of relevant senior leaders. Jurisdictional area leaders will also likely have views on which senior member within their jurisdictional area may be well-suited or interested in the professional development opportunity of acting as a list leader. 1122. Subclause (5) provides that any assignment of a list leader by the President is not a legislative instrument. Subclause (5) is included to assist readers and clarify that the assignment is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act (which means that it does not have to be registered or published). Clause 199: Assignment of members to jurisdictional areas 1123. As mentioned at clause 196 above, jurisdictional areas provide the structure of the Tribunal. This clause stipulates how members are assigned to jurisdictional areas, and replaces section 17C of the AAT Act. Deputy Presidents 1124. Subclause (1) provides that all Deputy Presidents are assigned to all jurisdictional areas, given their role is to work across all areas of the Tribunal as needed. Senior member leading a list 1125. Senior Members who are assigned as a list leader are automatically assigned to the jurisdictional area that list belongs to (subclause (2)). This is a procedural arrangement, reflecting that a member who is leading a list inherently should be situated within that jurisdictional area. Assignment by President - Subclauses (3), (4), (5), (6) and (7) 1126. The President may assign senior members and general members to jurisdictional areas if they are satisfied that the member has the appropriate skills, qualifications and experience. The President may also vary or revoke this assignment at any time. A member may be assigned to more than one jurisdictional area. 1127. Placing this power with the President (rather than with the Minister, as was the case in the AAT), supports the President to discharge their functions and to effectively lead the Tribunal. For example, being able to assign (and reassign) members is a key lever to enable the Tribunal to respond to surges in caseloads. As a member develops more experience, the President might identify an opportunity for the member to undertake work across a wider range of jurisdictional areas. Alternatively, if a member is at risk of suffering vicarious trauma through exposure to particular subject matter as a result of a particular jurisdictional area's caseload, reassigning that member to a different part of the Tribunal for a period of time supports member wellbeing. 1128. Subclause (7) provides that any assignment of a member to a jurisdictional area by the President is not a legislative instrument. Subclause (7) is included to assist readers and 163

clarify that the assignment is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act (which means that it does not have to be registered or published). An assignment by the Governor-General is also not a legislative instrument within the meaning of section 8 of the Legislation Act. This is because instruments of appointment are excluded from being classified as legislative instruments in accordance with item 8 of the table in section 6 of the Legislation Regulation. 1129. Subclause (4) provides that the President is not able to assign members to a jurisdictional area if an assignment has been made by the Governor-General under subclause (8) and has not been revoked. Assignment by Governor-General - Subclauses (8), (9), (10) and (11) 1130. Subclause (8) allows the Governor-General, on recommendation of the Minister, to assign senior members and general members to jurisdictional areas. The President will usually assign members to jurisdictional areas. However, in rare circumstances the Governor-General may include an assignment to a jurisdictional area in the member's instrument of appointment. 1131. Recognising the importance of maintaining the Tribunal's independence, subclauses (9), (10) and (11) set criteria which must be satisfied before the Governor-General may make or vary an assignment. 1132. Subclause (10) provides that the Governor-General may only assign members to a jurisdictional area if there are exceptional circumstances that justify the assignment. The policy intention is that these assignment powers will be used very rarely and only where there is a strong justification. For example, where the government has allocated extra resourcing to the Tribunal for the purpose of dealing with a particular cohort of matters. 1133. Subclause (10) also requires that the Minister is satisfied that the member has the appropriate skills, qualifications and experience to perform the role, before they recommend the Governor-General makes the assignment. This mirrors the requirement for the President in assigning members, and ensures that the ability and suitability of a member to undertake work in a jurisdictional area is considered in all assignments. 1134. Subclause (11) allows the Governor-General to vary a member's assigned jurisdictional area/s, however this ability is limited to either: (1) expanding the jurisdictional areas a member is assigned to or, (2) revoking all assignments such that the President may assign the member under subclause (3). This is an important safeguard to prevent political interference in the operations of the Tribunal by removing a member from a single jurisdictional area on the basis that the government does not like their decisions. 1135. If the Governor-General revokes all assignments of a member, under subclause (9) they cannot then make any further assignments to that member. This operates as an integrity measure to support subclause (11). If the assignment has been revoked, the member may instead be assigned by the President under subclause (3). 164

Subdivision C--Performance and conduct of members Clause 200: President may give directions to members 1136. This clause empowers the President to give a written direction to a member, in the performance of their functions (subclause (1)), which the member must comply with (subclause (2)). This is a new feature of the Tribunal. 1137. Directions given by the President must be consistent with their functions, and must not relate to a particular decision or proceeding in the Tribunal (subclause 3). Examples of directions the President may make are as follows: • directing members to perform training or professional development activities • directing members to not repeat conduct, where a minor breach of the code of conduct or performance standard is identified. 1138. The President would not be able to make a direction that a member must decide a case in a particular way, or that they must exercise their powers in relation to an individual proceeding (this is contrasted with the President's ability to issue practice directions under clause 36, which provide general statements which are not related to individual proceedings). Members must not be subject to any interference in the exercise of their functions in a specific matter. 1139. This clause provides accountability and promotes best practice in decision-making. The President cannot give directions under this clause to members who are judges, to respect their independence as members of the judiciary. 1140. Subclause (4) clarifies that a direction under this clause is not a legislative instrument. Subclause (4) is included to assist readers and clarify that a direction of the President is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act (which means that it does not have to be registered or published). Clause 201: Code of conduct 1141. All workplaces should be free from bullying, harassment and discrimination and the Tribunal is no exception. Ensuring that members are performing well and behaving appropriately is essential to maintaining public confidence in the Tribunal and maintaining a safe workplace culture. 1142. This clause requires the President to create a code of conduct for members, which would set clear expectations for behaviour within the Tribunal. This is a new feature of the Tribunal. The code of conduct could cover matters including expectations of behaviour toward other members and staff of the Tribunal, behaviour toward users and other stakeholders, maintaining impartiality or any other matters the President considers it should cover. 1143. The note under this clause clarifies that a serious breach of the code of conduct is a ground of termination under clause 221. Subclause (1) also provides that the code of conduct must be determined in writing. It also provides that the code of conduct does not apply to members who are judges. Standards relating to members of the judiciary are matters for the courts. 1144. The code of conduct must provide for the President or a jurisdictional area leader to take action in relation to breaches of the code of conduct (subclause (2)). While these are matters for the President, action in relation to breaches of the code of conduct may 165

range from lower-level action for minor or technical breaches (such as a formal conversation, counselling, mentoring, or training) through to significant action in relation to more serious breaches (which may include recommending the termination of a member's appointment under clause 221). 1145. Subclause (3) clarifies that the requirement for the President to issue a member code of conduct does not in any way limit the practice directions the President can make (see clause 36). 1146. To ensure transparency subclause (4) requires the President to publish the code of conduct. The Committee also has a function to advise the President on the making of the code of conduct (see clause 236). These requirements ensure that, despite not being a legislative instrument, the code of conduct is subject to scrutiny and advice. 1147. Subclause (5) provides that the code of conduct is not a legislative instrument within the meaning of section 8 of the Legislation Act. This is because instruments relating to the terms and conditions of appointment are excluded from being classified as legislative instruments in accordance with item 10 of the table in section 6 of the Legislation Regulation. Clause 202: Performance standard 1148. This clause requires the President to create a performance standard for members. This is a new feature of the Tribunal, and responds to feedback that members need clarity on expectations of performance, as well as regular performance feedback. It supports the Bill's introduction of a merit-based selection process, and the Tribunal objective of promoting public trust and confidence in the Tribunal. 1149. The performance standard could cover, for example: • clear performance expectations for each level of membership, which may cover indicators of performance including (but not limited to) knowledge and technical skills, finalisation rates, communication skills, expectations for the conduct of hearings, ability to resolve disputes, efficiency, professionalism and integrity • expectations related to training and professional development, and • performance management processes for members. 1150. The note under this clause clarifies that a serious breach of the performance standard is a ground of termination under clause 221. Subclause (1) also provides that the performance standard must be determined in writing and does not apply to members who are judges. Standards relating to members of the judiciary are matters for the court. 1151. The performance standard must provide for the President or a jurisdictional area leader to take action where a member fails to meet the requirements set out in the performance standard (subclause (2)). 1152. Subclause (3) clarifies that the requirement for the President to issue a performance standard does not in any way limit the practice directions the President can make (see clause 36). 1153. To ensure transparency, subclause (4) requires the President to publish the performance standard. The Committee also has a function to advise the President on the making of the code of conduct (see clause 236). These requirements ensure that, 166

despite not being a legislative instrument, the code of conduct is subject to scrutiny and advice. 1154. Subclause (5) provides that the performance standard is not a legislative instrument within the meaning of section 8 of the Legislation Act. This is because instruments relating to the terms and conditions of appointment are excluded from being classified as legislative instruments in accordance with item 10 of the table in section 6 of the Legislation Regulation. Clause 203: President may investigate conduct of members 1155. This clause empowers the President to investigate and take appropriate action in relation to member conduct. This is a new feature of the Tribunal. 1156. Subclause (1) outlines that this provision applies if the President forms the opinion that a member may have engaged in conduct that may: • have breached the performance standard or code of conduct • be a ground for termination under clause 221 • have adversely affected the member's performance of their official duties, or • undermine public confidence and trust in the Tribunal. 1157. As this provision enables an investigation to be conducted, it is not intended to be restrictive as to how the President may form this opinion, or the likelihood that the member has, in fact, engaged in the conduct. These matters may only be evident after an investigation is conducted or other actions taken. The provision is intended to confer a broad discretion on the President to deal with possible conduct or performance issues. 1158. The note clarifies that the President may form this opinion on the basis of a complaint. However, receipt of a complaint is not necessary for the operation of this clause. 1159. Once the President forms this view, subclause (3) permits the President to temporarily restrict a member's duties - which may include while the actions permitted in subclause (2) are performed. 1160. Subclause (2) outlines a range of actions the President can take in the circumstance mentioned in subclause (1). These actions are at the discretion of the President and include taking no action. The provision is intended to confer on the President a range of options to deal with performance and conduct issues. This recognises that the ability to appropriately respond to such issues is critical to public trust and confidence in the Tribunal. The options available to the President under subclause (2) are to do one or more of the following: • investigate the conduct • report on an investigation of the conduct • deal with a report of an investigation of the conduct • refer the conduct to a person or body • direct a person or body to investigate the conduct • authorise a person or body to do any of the above, or • take any measures in relation to the member that the President believes are reasonably necessary to maintain the public trust and confidence in the Tribunal. 167

1161. The President also has the option not to take any action in relation to a matter (paragraph (2)(b)). This could be because the President initially considered that a member may have engaged in conduct of the kind listed in subclause (1), but on further inquiry, it becomes apparent that they did not engage in such conduct. The President may also elect to take no further action if the President formed an opinion based on a complaint that was found to be frivolous, or for any other reason as the President sees fit. 1162. It is expected that investigations, reports, or other actions taken in response to concerns about members' conduct or behaviour would provide procedural fairness for the subject. 1163. Note 1 clarifies that if the President reasonably believes the conduct of a member constitutes grounds for termination of their appointment, they must notify the Minister (see clause 222). 1164. Note 2 directs users to clause 204, which provides protections and immunities for persons involved in investigating the conduct of members that are analogous to those for persons involved in High Court proceedings. 1165. This provision does not apply to Tribunal members who are judges, noting that conduct issues relating to the judiciary are matters for the courts. Clause 204: Protection of persons involved in investigating conduct of members etc. 1166. This clause grants protection to persons involved in investigating the conduct of members of the Tribunal. This protection is equivalent to the protection and immunities (and in some cases, the liabilities) afforded to those who are involved in High Court proceedings. This would mean, for example, that those persons could not be sued for defamation for their actions during a hearing. This is a new feature of the Tribunal. 1167. Subclause (1) extends the protection granted by this clause to persons who perform any functions or exercise any powers contained in clause 203, including investigating or directing someone to investigate a member's conduct, or reporting the conduct. 1168. Subclause (2) provides that persons who appear before someone investigating a member's conduct, or who assist or appear on behalf of a person whose conduct is being investigated have the same protections and liabilities as a witness in the High Court. The term 'appear before' is used in recognition of the broad range of actions covered by clause 203. The protections will apply to a range of situations where a person is providing information to a person investigating member conduct, not only official or formal witnesses. 1169. Further, a legal practitioner or other person assisting, or appearing on behalf of a person before, a person performing or exercising the functions has the same protection and immunity as a barrister appearing for a party in the High Court (subclause (3)). 1170. These immunities are necessary and appropriate, given the importance of ensuring that investigations into Tribunal members are robust and not subject to interference. Threats of legal action may have a chilling effect on the willingness of individuals to conduct investigations, or for others to cooperate with such an investigation. This would be of detriment to public trust and confidence in the Tribunal. This clause is designed to promote the effectiveness of the process of investigating conduct by 168

enabling appropriate people to participate in the process without fear of litigation or liability. 1171. This clause applies in addition to and does not limit the immunities and protections that might otherwise apply in these circumstances. These provisions broadly replicate equivalent provisions in relation to immunity and protection of persons handling complaints in other bodies such as the FCA (see section 18XA of the FCA Act) and the Fair Work Commission (see section 584B of the Fair Work Act 2009). Division 3--Member appointment provisions Subdivision A--Appointment of members 1172. This subdivision governs the statutory appointment of members to the Tribunal. Members can be appointed to the role of President, Judicial Deputy President, Non-Judicial Deputy President, senior member, or general member. This subdivision sets out, among other things: • the process of appointment • the qualifications for appointment • the period of appointment • the basis of appointment • the process of reappointment. 1173. This subdivision establishes transparent and merits-based appointment processes for all non-judicial positions of the Tribunal. This addresses a key concern in the Senate Legal and Constitutional Affairs Committee's 2022 report on the performance and integrity of the administrative review system that 'a lack of transparency and independence in the appointment process was significantly undermining the public credibility of the [AAT]' (page 44). Appointment process 1174. All member appointments must be made by the Governor-General on recommendation of the Minister. This is appropriate, recognising that while the Tribunal is independent of government, it remains part of the executive government. Consistent with statutory appointments across government, the government of the day should retain the ability to make such appointments. 1175. To safeguard the process, the Minister must be satisfied of certain elements, and must also take certain actions, before making a recommendation to the Governor-General. These elements and actions differ slightly between the member levels, and these differences are summarised in Table 4 below, and also in the explanation of clauses 205, 206, 207 and 208. These are new features of the Tribunal. 1176. For candidates for all roles except Judicial Deputy Presidents, the Minister must be satisfied that the candidate was assessed as suitable through a process that was merit-based, publicly advertised, and complied with any requirements in the regulations (including requirements in relation to assessment panels). 1177. The phrase 'merit-based' is defined in clause 4. It has three limbs, and each must be satisfied for a process to be merit-based. • The process must include an assessment of the comparative suitability of the candidates for the duties of the office, using a competitive selection process. 169

- This is analogous to the approach to appointing non-executive Directors to the boards of the ABC and SBS. • The assessment must be based on the relationship between the candidates' skills, expertise, experience and knowledge and the skills, expertise, experience and knowledge required for the duties of the office. - This is similar to the approach to appointing non-executive Directors to the boards of the ABC and SBS, with updates to match the needs of the Tribunal. This consideration is broad, and may include an applicant's technical skills as well as their broader skills, such as their ability to write clear decisions. • The assessment must take into account the need for a diversity of skills, expertise, lived experience and knowledge within the Tribunal. - This is a new element in the consideration of a merits-based assessment process. It has been added because the Tribunal needs a membership that has a broad collective of knowledge, expertise and life experience. It allows an assessment panel to consider the mix of listed qualities as needed across the Tribunal's membership, in addition to the qualities needed for individual members. - The inclusion of lived experience acknowledges that formal qualifications and traditional work experience form an important element of the assessment of an applicant's experience, skills and competencies. However, diversity of experience should also be recognised and valued as contributing to an applicant's overall suitability for appointment and promoting an understanding of, and responsiveness to, the needs of users. 1178. Requiring public advertisement of positions provides transparency, and ensures a wide cohort of potential applicants are made aware of, and can apply, to the position. 1179. Additionally, the regulations may set general and position-specific selection criteria, which is needed to accommodate the multiple types of vacancies that may appear in the Tribunal, particularly where a unique skill set may be required. 1180. Before the Minister makes a recommendation to the Governor-General of a member's appointment they must seek and take into account the advice of the President on: • whether the appointment would meet the operational needs of the Tribunal • the financial capacity of the Tribunal for the appointment, and • the effect of the appointment on the ratio of members at each level. 1181. This consultation requirement ensures that the Minister is making an informed recommendation to the Governor-General. While the merit-based process ensures that the candidates are suitable, this requirement ensures the recommended candidates are the members that the Tribunal needs and can afford. The President's advice will allow the Minister to consider and recommend the right candidates for the Tribunal at the relevant point in time. 1182. Considering the Tribunal's financial capacity and the balance across the member levels protects against the Tribunal becoming disproportionately staffed with senior staff. This promotes financial sustainability and efficiency of the Tribunal. 170

Table 4--Appointment process elements, by level Senior Judicial Non-Judicial member and President Deputy Deputy general President President member Assessment process Not Yes Yes Yes was merit-based appropriate to apply to a Position was position where Yes Yes Yes publicly advertised all potential candidates are Rules can prescribe existing sitting additional Yes Yes Yes Judges requirements President's advice on the Tribunal's Yes Yes Yes operational needs Not needed as President's advice Not needed as there is only on the Tribunal's they are paid Yes Yes ever one financial capacity by the FCA President President's advice on the effect on Yes Yes Yes relative numbers Qualifications for appointment 1183. Candidates must hold certain qualifications to be appointed as a member of the Tribunal (a summary is at Table 5 below). The qualifications required for each member level increase in relation to the seniority of the level, the responsibilities they will hold, and the complexity of the matters they will be hearing. The purpose of the qualifications is to ensure a candidate has the training to be a good decision-maker. They replace the qualifications in section 7 of the AAT Act. 1184. These qualifications are the minimum for appointment to the Tribunal. The merit-based assessment of an applicant will include a wider range of considerations and selection criteria. 171

Table 5--Summary of member qualification requirements President A Judge of the FCA Non-Judicial Deputy President Judicial Deputy President Enrolled as a lawyer for at least 10 years, A Judge of the FCA or the and either: FCFCOA (Division 1) • is a former Judge, or • has substantial expertise in one or more areas relevant to the jurisdiction of the Tribunal Senior Member Enrolled as a lawyer for at least seven years, or has at least seven years specialised training or experience in a subject matter relevant to the jurisdiction of the Tribunal General Member Enrolled as a lawyer for at least five years, or has at least five years specialised training or experience in a subject matter relevant to the jurisdiction of the Tribunal Period of appointment 1185. All members appointed to the Tribunal must be appointed for five years, unless a shorter term is justified in the instrument of appointment. This replaces the approach in section 8 of the AAT Act, where a member can be appointed for up to seven years. 1186. Certainty of term is critical to maintain the independence of the Tribunal. It ensures that members cannot be removed for making decisions that individuals in government disagree with, and contributes to stability and leadership in the organisation. A five-year limit is consistent with other Commonwealth statutory bodies (for example the Copyright Tribunal, Repatriation Commission and Australian Competition and Consumer Commission). It is also long enough to be outside the political cycle, while also enabling regular reassessment of members' performance and the needs of the Tribunal. 1187. While a standard term provides certainty and consistency, requiring all members to be appointed for five-year terms would limit the ability to address short-term surge needs in the Tribunal and balance the expiry of appointments across years. The legislation therefore allows a member to be appointed for a shorter period, but only where this is justified in the instrument of appointment. 172

Basis of appointment 1188. Members of the Tribunal will be appointed as either a salaried member (equivalent to an AAT full-time member, who is paid an annual salary) or a sessional member (equivalent to an AAT part-time member, who is paid a day-rate). This approach is equivalent to subsection 6(4) of the AAT Act, with some substantive terminology changes to clarify the work arrangements within the Tribunal and both account for the various types of part-time work undertaken by the Tribunal. 1189. Remuneration for all members will be set by the Remuneration Tribunal (see clause 214). 1190. A salaried member may work full-time or part-time hours, as agreed with the President. Remuneration for salaried members working less than full-time hours will be pro-rated by the President depending on the number of agreed work hours of the member. This will provide a clear basis for regular part-time work as a form of employment for Tribunal members, allowing appointment on a regular hours basis for members with commitments that do not allow them to work full-time, as is to be expected in a contemporary workplace. 1191. Sessional members bring diversity to the membership and enable the Tribunal to call upon specialist knowledge and surge capabilities. These members would not be guaranteed minimum hours or regular work in the new Tribunal. Their purpose is to provide a cohort of members who may be called upon by the Tribunal as required to meet the needs of the Tribunal. Some sessional members may not be available to work a regular schedule, but could provide value to the Tribunal on an ad hoc basis. Reappointments 1192. Where an Act provides a power to appoint a person, section 33AA of the Interpretation Act provides that the power extends to reappointing the person. A reappointment is made through the same power as an initial appointment, and therefore many of the same processes apply. It is important that members can be reappointed, to retain and build expertise in the Tribunal. This subdivision provides the process for reappointing members. 1193. The Bill provides predictability to the reappointment process by only providing for a member to be reappointed in the last six months of their term. This sets an expectation of when reappointments should occur, providing some regularity for members and avoiding any impression of political considerations resulting in out-of-cycle early reappointments. 1194. The process for a reappointment may start earlier than the last six months of a member's appointment (for example, the commencement of a merit-based appointment process). However, the instrument of re-appointment can only be made within the member's final six months. 1195. In order to recommend a member for reappointment, the Minister must seek and take into account the President's advice about the person's performance against the performance standard. This ensures the Minister is informed about the member's performance before making a recommendation of reappointment. Linking it to the performance standard protects the integrity of the process to ensure that the assessment of performance relates to clear, objective criteria. 1196. The Minister must also seek and take into account the President's advice about: 173

• whether the appointment would meet the operational needs of the Tribunal • the financial capacity of the Tribunal for the appointment, and • the effect of the appointment on the ratios across the member levels. 1197. These considerations ensure that a strategic lens is applied to reappointments, including the overall workforce of the Tribunal, and what expertise and skills the Tribunal needs moving forwards. 1198. The Bill provides a streamlined reappointment process for a member's first reappointment. This does not require public advertisement and competitive assessment, however does require the Minister seek and take account of the President's views. A full merit-based assessment would need to be conducted for every second reappointment, including requiring the member to formally apply for a position. These approaches strike a balance between retaining expertise in the Tribunal and ensuring all members of the Tribunal are, and remain, the best candidates for appointment. 1199. A reappointment does not include appointment to a higher level role. Where a member applies for, and is found suitable for appointment at a higher level, their appointment at the higher level would be considered a new appointment. All of the criteria for an initial appointment to the Tribunal would need to be satisfied, including the full merits-based process. The 6-month restriction would therefore not apply. Clause 205: Appointment of President Appointment by Governor-General 1200. This clause outlines the appointment process for the President of the Tribunal. It replaces sections 6, 7 and 8 of the AAT Act, including with the addition of a merit-based assessment process. Subclause (1) stipulates that the President is to be appointed by the Governor-General on recommendation of the Minister. 1201. Under subclause (2), the Minister must do certain things before making a recommendation in relation to the appointment of a person as President. Before making a recommendation, the Minister must consult with the Chief Justice of the FCA. This is because the President must be a FCA judge and their appointment as President may have a resourcing impact on the FCA. It is appropriate for the Chief Justice to be consulted on matters that may impact the operations of the FCA, and, if the President is not an existing FCA judge, on the suitability of the candidate to be appointed as one. 1202. The Minister must also be satisfied that the candidate has been assessed as suitable through a merit-based, publicly advertised assessment process which complies with any requirements in the regulations. Further details about the elements the Minister needs to be satisfied about are provided in the explanation under the heading of Subdivision A of Division 3 of Part 8 above. Qualification for appointment 1203. The person appointed to the position of President must be a Judge of the FCA (subclause (3)). This is equivalent to the requirement contained in section 7 of the AAT Act. A judicial President reinforces the independence of the Tribunal from government. Having a judicial President as the head of the body entrenches its impartiality as an appellate body, albeit one within the executive branch. 174

1204. Practically, a President with judicial experience and a working relationship with the FCA streamlines interactions between the two bodies, particularly where there is significant overlap in subject matter considered by the Tribunal and the FCA. Retaining the requirement for the President of the federal administrative review body to be a Judge of the FCA will ensure the President brings the necessary independence, experience, seniority, intellectual rigour and leadership skills to the Tribunal. Period of appointment 1205. Subclauses (4) and (5) stipulate that the President must be appointed for five years, unless a shorter term is justified in the instrument of appointment. Further details are provided in the explanation under the heading of Subdivision A of Division 3 of Part 8 above. Basis of appointment 1206. Subclause (6) stipulates that the President of the Tribunal may only be appointed on a salaried basis. Given the workload associated with the role, it could not be adequately performed by a member who works on a sessional basis. In practice, the President will be remunerated as a judge of the FCA. 1207. Further details are provided in the explanation under the heading of Subdivision A of Division 3 of Part 8 above. Reappointment 1208. Subclauses (7) and (8) provide for the reappointment of the President. The President's reappointment may occur through the streamlined procedure, and would require the Minister consult the Chief Justice of the FCA. 1209. Further details are provided in the explanation under the heading of Subdivision A of Division 3 of Part 8 above. Clause 206: Appointment of Judicial Deputy Presidents Appointment by Governor-General 1210. This clause governs the appointment process for Judicial Deputy Presidents. It is equivalent to sections 6, 7 and 8 of the AAT Act with some substantive changes, including the addition of consultation requirements with the Chief Justice of the relevant court and the President of the Tribunal. Subclause (1) stipulates that a Judicial Deputy President is to be appointed by the Governor-General on recommendation of the Minister. 1211. Under subclause (2), before the Minister makes a recommendation, they must consult with the Chief Justice of the court of which that person is a Judge. This enables the Minister to make sure that the person is suitable for the work of the Tribunal, and that the court has capacity to support the judge's role on the Tribunal. 1212. The Minister must also seek and take into account the advice of the President on: • whether the appointment would meet the operational needs of the Tribunal, and • the effect of the appointment on the ratios across the member levels. 1213. Further details are provided in the explanation under the heading of Subdivision A of Division 3 of Part 8 above. As Judicial Deputy Presidents are made available from the 175

FCA and FCFCOA on an as-needs basis and their salaries are paid by the Courts, there is no financial impost on Tribunal from these appointments. 1214. Unlike the appointment processes for the President and other members, prospective Judicial Deputy Presidents would not be subject to the merit-based assessment process. It would be unnecessary and inappropriate to apply this process to sitting federal judges, given the common skill set required to sit as a Tribunal member and as a judge. Qualification for appointment 1215. Subclause (3) stipulates that candidates for the roles of Judicial Deputy President must be judges of the FCA or FCFCOA (Division 1). This is equivalent to the requirement contained in section 7 of the AAT Act. As discussed in clause 194, judicial members serve an important function on the Tribunal, including providing excellence in decision-making. Period of appointment 1216. Subclauses (4) and (5) stipulate that Judicial Deputy Presidents must be appointed for five years, unless a shorter term is justified in the instrument of appointment. Judicial members may be reappointed, under section 33AA of the Interpretation Act, through the same process by which they are appointed. Basis of appointment 1217. Subclause (6) stipulates that Judicial Deputy Presidents may only be appointed on a sessional basis. This is due to their role on the Tribunal (to hear complex, significant or sensitive matters which do not often arise), and to allow them to focus primarily on their judicial duties. Clause 207: Appointment of Non-Judicial Deputy Presidents Appointment by Governor-General 1218. This clause stipulates the appointment process for Non-Judicial Deputy Presidents. It replaces sections 6, 7 and 8 of the AAT Act, including with the addition of a merit-based assessment process. 1219. Subclause (1) stipulates that a Non-Judicial Deputy President is to be appointed by the Governor-General on recommendation of the Minister. Under subclause (2), before the Minister makes such a recommendation they must consult the President on: • whether the appointment would meet the operational needs of the Tribunal, • the financial capacity of the Tribunal for the appointment, and • the effect of the appointment on the ratios across the member levels. 1220. The Minister must also be satisfied that the candidate has been assessed as suitable through a merit-based, publicly advertised assessment process which complies with any requirements in the regulations. Further details about the elements the Minister needs to be satisfied about are provided in the explanation under the heading of Subdivision A of Division 3 of Part 8 above. Qualification for appointment 1221. Non-Judicial Deputy Presidents are expected to be outstanding decision-makers, demonstrating intellectual excellence in complex, significant or sensitive matters. 176

They should be people who can work across all areas of the Tribunal as needed. As such, their qualification requirements are different and higher than for senior members or general members. 1222. Subclause (3) sets the qualification requirements for a person appointed to the role of Non-Judicial Deputy President. It stipulates that they must have been enrolled as a legal practitioner for at least 10 years. Legal practitioner is defined as a barrister or solicitor, or a legal practitioner of the High Court or the Supreme Court of a State or Territory. Additionally, a person appointed as a Non-Judicial Deputy President must be either a former Judge (defined as a judge of any Court created by the Commonwealth Parliament) or have substantial expertise in one or more areas relevant to the jurisdiction of the Tribunal, to the satisfaction of the Minister. 1223. Deputy Presidents will be expected to provide intellectual leadership to the Tribunal, and to decide the most complex, significant or sensitive of matters, including those that are of systemic importance. Further, as Non-Judicial Deputy Presidents are assigned to all jurisdictional areas, and may be assigned as jurisdictional area leaders, it is essential that they have substantial expertise across the Tribunal's jurisdictions, to enable them to adequately perform their role. Period of appointment 1224. Subclauses (4) and (5) stipulate that Non-Judicial Deputy Presidents must be appointed for five years, unless a shorter term is justified in the instrument of appointment. Further details are provided in the explanation under the heading of Subdivision A of Division 3 of Part 8 above. Basis of appointment 1225. Subclause (6) stipulates that a Non-Judicial Deputy President can be appointed as either a salaried or sessional member. Further details are provided in the explanation under the heading of Subdivision A of Division 3 of Part 8 above. 1226. Clause 197 stipulates that a Non-Judicial Deputy President can only be assigned to be a jurisdictional area leader if they are appointed on a salaried basis. This is because the workload of a jurisdictional area leader is expected to be large and complex enough that it cannot be adequately performed by a member who does not work a regular work schedule. Reappointment 1227. Subclauses (7), (8) and (9) provide for the reappointment of Non-Judicial Deputy Presidents. Further details are provided in the explanation under the heading of Subdivision A of Division 3 of Part 8 above. Clause 208: Appointment of senior members and general members Appointment by Governor-General 1228. This clause stipulates the appointment process for senior and general members. It replaces sections 6, 7 and 8 of the AAT Act, including with the addition of a merit-based assessment process. 1229. Subclauses (1) and (2) provide that senior and general members are appointed by the Governor-General on recommendation of the Minister. The Minister must do certain things before making a recommendation, which is the same as the process for Non-Judicial Deputy Presidents (see clause 207). 177

Qualification for appointment--senior member and general member 1230. Subclause (3) sets the qualification requirements for a person appointed to the role of a senior member. It stipulates that they must have either been enrolled as a lawyer for at least seven years, or have at least seven years' specialised training or experience in a subject matter relevant to the jurisdiction of the Tribunal. Legal practitioner is defined as a barrister or solicitor, or a legal practitioner of the High Court or the Supreme Court of a State or Territory. 1231. Subclause (4) provides that to be eligible for appointment as a general member, the same qualifications apply, but only five years' experience is required. 1232. Senior members are expected to sit on more complex matters than general members, and carry more leadership responsibilities. It is appropriate that they bring more experience to their role. 1233. General and senior members are not required to have legal qualifications. This reflects the value and importance of having a diverse range of skills and experience on the Tribunal. There are a range of subject matters that are relevant to the Tribunal's jurisdiction including the fields of medicine, taxation, accounting, defence or public administration. These members can support better exploration of issues and decision-making in complex matters, or those involving technical or specialised issues. The Minister must be satisfied of this specialised training or experience and its relevance to the jurisdiction of the Tribunal for a person to be eligible for appointment as a senior or general member. Period of appointment 1234. Subclauses (5) and (6) stipulate that senior members and general members must be appointed for five years, unless a shorter term is justified in the instrument of appointment. Further details are provided in the explanation under the heading of Subdivision A of Division 3 of Part 8 above. Basis of appointment 1235. Subclause (7) stipulates that senior and general members can be appointed as either salaried or sessional members. Further details are provided in the explanation under the heading of Subdivision A of Division 3 of Part 8 above. Reappointment 1236. Subclauses (8), (9) and (10) provide for the reappointment of the senior members and general members. Further details are provided in the explanation under the heading of Subdivision A of Division 3 of Part 8 above. Clause 209: Minister may establish assessment panel 1237. Subclause (1) stipulates that for the purpose of merit-based assessment of candidates under this subdivision, the Minister may establish one or more assessment panels. This is a new feature of the Tribunal, and has been introduced to set an expectation that the assessment process will be undertaken by a separate panel prior to suitable candidates being considered by the Minister. Provisions in the regulations relating to assessment panels are required to be observed in the making of appointments (see subparagraphs 205(2)(b)(iii), 207(2)(b)(iii) and 208(2)(b)(iii)). 178

1238. Subclauses (2) and (3) provide that the regulations may set out further detail about the assessment panels. Among other things, the regulations may stipulate the establishment, composition, operation, procedures, and assessment methodology of a panel, as well as provision of secretariat and clerical assistance to a panel by the Department. The intent is that the regulations will provide for similar details as are currently provided in the Guidelines of Appointments to the AAT. This ensures that the detail of assessment processes remain subject to Parliamentary oversight, while providing scope for processes to improve over time and to be tailored to particular Tribunal needs where required. For example, an assessment process for members who are suited to work in the Taxation and Business jurisdictional area may prioritise specific tax or accounting experience in the composition of the panel or the manner of assessment. Clause 210: Appointment of a Judge not to affect tenure etc. 1239. The clause provides that a judicial member's appointment in the Tribunal is contingent on them continuing their employment as a Judge. Notwithstanding this, a judicial member's appointment to the Tribunal has no impact on their tenure of office as a Judge or their rank, title or entitlements in this position. For all purposes, their term with the Tribunal is taken to be service as a Judge. 1240. This clause is equivalent to sections 7A and 8 of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation of the provision. Clause 211: Extension of appointment 1241. This clause allows the Minister to extend a member's appointment for three months (subclause (1)). This is a new feature of the Tribunal. The Minister may wish to extend an appointment to enable a member to finalise proceedings to which they are constituted, or for other reasons such as a potential gap between appointments. 1242. Ordinarily, the Tribunal will manage a member's caseload to ensure that their matters are finalised ahead of their cessation of their term. However, there may be rare circumstances where a short extension of time will be preferable to allow a member to conclude a matter, or to finish writing a decision. This will support the efficient operation of the Tribunal, by removing the need to reconstitute a new Member to a matter. 1243. This provision contains safeguards to ensure it does not undermine the operation of the appointment and reappointment provisions. First, the President must request the extension, and the extension must be made by written instrument. Second, the extension is only available for a three-month period (paragraph 3(a)). The extension may also end if, within the three-month extension period, a member resigns or their extended appointment is terminated (paragraphs 3(b) and (c)). 1244. Subclause (4) provides that an extension by the Minister is not a legislative instrument. Subclause (4) is included to assist readers and clarify that the extension is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act (which means that it does not have to be registered or published). 179

Clause 212: Acting appointments 1245. This clause allows for members to act when there is a vacancy on the Tribunal. It is equivalent to section 10 of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation of the provision. President 1246. Subclause (1) empowers the Minister to appoint a person to act as the President when there is a vacancy in the office of the President, or the President is absent or unable to perform their duties. Over the course of a five-year appointment, it will be essential for the President to have regular leave for rest and recreation, as well as personal leave for any periods of illness or injury. Given that the merit-based appointment processes can be lengthy, it is also possible that the position could be vacant while a merit-based assessment process takes place. This clause would ensure that the Tribunal has appropriate leadership and senior leadership across all of these circumstances. 1247. Subclause (2) provides that a person can only act as the President if they meet the qualification criteria contained in clause 205 (being a current judge of the FCA), and if the Minister has consulted with the Chief Justice of the FCA. The consultation element has been introduced to ensure that the impost of releasing a FCA judge to lead the Tribunal does not result in undue disruption to the Court's activities, and that the person selected to act is suited to the role. Other members 1248. As noted above, it is important for the effective operation of the Tribunal that short-term vacancies can be filled, and that members are able to take leave for rest or for personal reasons. Acting arrangements are an ordinary process for statutory authorities to ensure continuity in operations. 1249. Subclause (3) empowers the Minister, on request of the President, to appoint a person to act as a member (other than the President) when there is a vacancy in the Tribunal at that level or a member is absent or unable to perform their duties. Subclause (4) provides that a person can only act at a certain level if they meet the qualification criteria contained in the relevant appointment clause in this Bill for that level. Requiring acting appointments to be made on request of the President will ensure that these appointments are only made as needed to support the efficient operation of the Tribunal. 1250. The Minister cannot make acting appointments for Judicial Deputy Presidents without consulting the Chief Justice of the court of which the candidate is a Judge, recognising the impact on the court of such an appointment. 1251. The notes under subclauses (1) and (3) clarify that the rules applying to acting appointments are contained in sections 33AB and 33A of the Interpretation Act. Extension of acting appointment 1252. Subclauses (5), (6) and (7) give the Minister the power to extend an acting arrangement, which might be used if an acting member is half-way through considering a matter when the absent member returns. However, the Minister can only extend the acting appointment if: 180

• they are satisfied it is necessary to do so because of a pending proceeding or other special circumstance, • the extension is made in writing, before the vacancy ends, and • the extension is not for more than 12 months. Clause 213: Oath or affirmation of office 1253. Subclause (1) stipulates that before commencing their duties as an appointed member of the Tribunal a person must take an oath or affirmation in service of the office and the public. This includes a person who is taking up a reappointment or acting position. This is equivalent to the requirement contained in section 10B of the AAT Act. The oath or affirmation has not been set out in full (as in the AAT Act). Instead, subclause (2) describes what the oath or affirmation should cover, to allow the Tribunal to adopt a flexible approach, depending on the individual circumstances and religious affiliations of members. 1254. Under subclauses (3) and (4), the oath or affirmation must be taken in the presence of the Governor-General, a Justice of the High Court, a Judge of the FCA, a Judge of the Supreme Court of a State or a Territory or the President (unless the President is the person taking the oath or affirmation). Subdivision B--Members' terms and conditions Clause 214: Remuneration 1255. This clause is equivalent to section 9 of the AAT Act. The clause sets out the means for determining the remuneration and allowances for non-judicial members. This category of member is paid the remuneration amount determined by the Remuneration Tribunal. In the absence of a determination by the Remuneration Tribunal, non-judicial members are paid the remuneration that is prescribed by the rules (rather than by regulation, as was provided in the AAT Act). 1256. It is appropriate for the remuneration of members to be determined by the Remuneration Tribunal as it is an independent statutory body that handles the remuneration of key Commonwealth offices. Such a determination would be a disallowable instrument under the Legislation Act. This means that the determination would be required to be tabled in both Houses of Parliament, and either House may pass a resolution disallowing the determination within 15 sitting days of the determination being tabled. 1257. The ability to prescribe the remuneration in the rules allows flexibility to ensure members can be appropriately remunerated if there is any delay in the making of a determination by the Remuneration Tribunal, or if a determination is disallowed by either House of Parliament. 1258. The rules would also be able to prescribe the allowances that members would be paid. This clause only applies to non-judicial members, as judicial members are remunerated by the court of which that person is a Judge. Clause 215: Leave 1259. This clause sets out the leave arrangements for members when appointed on a salaried or sessional basis. The distinction between these two bases of employment are discussed in more detail in Subdivision A of Division 3 of Part 8 above. The clause is 181

equivalent to section 12 of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation of the provision. 1260. If a member is appointed on a salaried basis, subclause (1) provides they have the recreation leave entitlements that are determined by the Remuneration Tribunal. It is appropriate for the recreation leave entitlements of salaried members to be determined by the Remuneration Tribunal. The Remuneration Tribunal is an independent statutory body that handles the remuneration and allowances of key Commonwealth offices. Given the significance of the responsibilities of members of the Tribunal, it is desirable for the recreation leave entitlements to be determined by an experienced, independent authority. In practice, requests for recreation leave will be approved by the President, or their delegate if a delegation is in place under subclause 279(1), in accordance with the determined entitlements. 1261. Subclauses (2) and (3) provide flexibility for the Minister or President to consider requests for other types of leave--for example discretionary leave to attend a funeral, cultural leave, or family and domestic violence leave--where it may not be appropriate for the member to use their recreation leave entitlements for this purpose. 1262. Subclause (2) empowers the Minister to grant the President leave of absence, other than recreation leave, on any terms and conditions that the Minister determines. This is necessary and appropriate for the President, as the leader of the Tribunal. Subclause (3) empowers the President to grant salaried members leave of absence, other than recreation leave, on any terms and conditions that the President determines. This provides flexibility for the President to manage the day-to-day working arrangements for members. 1263. If a member is appointed on a sessional basis, they cannot be granted recreation leave. However, under subclause (4) the President can grant a leave of absence to the member on the terms and conditions that the President determines. This ensures that sessional members have a clear method to authorise any absences or unavailability. Clause 216: Other paid work 1264. Subclause (1) stipulates that a non-judicial member appointed on a salaried basis cannot engage in paid work (as defined in clause 4) outside their duties unless the President has agreed. This replicates section 11 of the AAT Act. Under subclause (2) a non-judicial member appointed on a sessional basis does not need the President's approval, but cannot engage in paid work that conflicts or could conflict with the proper performance of their duties. 1265. Consistent with the definition of 'paid work' in clause 4, this clause covers circumstances where the person may be an employee, self-employed or otherwise. The clause is equivalent to section 11 of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation of the provision. This clause manages the risk of conflicts of interests arising, and ensures a member's independence and performance are not compromised by outside commitments. Service in the Australian Defence Force is excluded from the requirement to seek approval through the definition of paid work in clause 4. 1266. Failure to comply with this clause is a ground of termination under clause 221. The requirements in this clause are in addition to the disclosure of interest requirements in clause 218. 182

Clause 217: Appearances before Tribunal 1267. This clause prevents members from appearing as a representative of a party to a proceeding or an expert witness in a proceeding in the Tribunal unless they have approval from the President (or the Minister, in the case of the President). This is a new feature of the Tribunal. It recognises that members of the Tribunal have special knowledge of its operations and relationships with their colleagues. 1268. This clause applies to current members and former members in the first 12 months after they leave the Tribunal, or during any longer period stipulated by a law of a State or Territory. This restriction may be lifted in individual cases by the President or the Minister. 1269. Various state laws exist restricting the appearance of barristers and solicitors for different time periods (such as clause 95(n) of the '2011 Barristers' Rule, as amended' made under the Legal Profession Act 2007 (Qld)). The intention is not to shorten these periods, but rather to set a minimum restriction of 12 months where it is not otherwise regulated. Clause 218: Disclosure of interests 1270. This clause requires a member to disclose a conflict of interest. This refers to a situation where a member has, or acquires, an interest that conflicts or may conflict with the performance of their functions. It is fundamental to good governance that conflicts of interests are raised and dealt with effectively. Failure to do so can undermine confidence and trust in the Tribunal. General duty to disclose interests 1271. Subclause (1) establishes a general duty on members to disclose any actual or potential conflicts of interest to the President. This is a new feature of the Tribunal. A general disclosure of interests requirement maintains integrity and transparency by ensuring members turn their minds to potential conflicts of interest before they arise in proceedings. Disclosure of interests relating to proceedings 1272. Subclause (2) requires members of the Tribunal to disclose an existing or potential conflict of interest if a member is constituted to a proceeding, or is performing or exercising a function or power of the Tribunal in relation to a proceeding. This must be disclosed to the President (or the Minister, if the member making the disclosure is the President), and also to the parties to the proceeding. The member must not take part in or exercise any powers in relation to the proceeding without the consent of the parties and the President or Minister. 1273. Subclauses (1) and (2) are intended to cover a wide range of potential conflict types, including financial interests (such as directorships, shareholdings, real estate, trusts or involvement in self-managed superannuation funds) and personal and other interests (such as family relationships, sexual relationships or relationships formed through work or engagement with the local community, including sporting, social, cultural, political or voluntary activities and affiliations). This supports public trust in the Tribunal, by assuring the public that the Tribunal has a proactive and thorough approach to ensuring a member's independence. 183

Timing of disclosure 1274. A member must make a disclosure under subclause (3) as soon as possible after the member becomes aware of the conflict. 1275. Failure to disclose actual or potential conflicts of interests (without a reasonable excuse) is a ground of termination under clause 221. What constitutes a reasonable excuse will necessarily depend on the individual circumstances, but is more likely to arise in relation to a potential conflict, where it may not be immediately apparent to a member what interests are captured. It is expected that a member's appointment would not be terminated for minor or unavoidable breaches. Clause 219: Register of interests 1276. This clause stipulates that the President must keep a register of disclosures made under clause 218. This is a new feature of the Tribunal. The record of each disclosure must include the nature of the interest disclosed and any action taken as a result of the disclosure. 1277. Subclause (4) provides that the register is not a legislative instrument. Subclause (4) is included to assist readers and clarify that the register is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act (which means that it does not have to be registered or published). 1278. The register safeguards integrity and transparency and helps to ensure that any conflicts are considered before constituting members to proceedings. Information on the register should not be kept beyond the term of a member's appointment, and is not published. Clause 220: Resignation 1279. This clause permits members to resign in writing to the Governor-General. Such a resignation would take effect on the day it is received by the Governor-General, or on a later date specified in the resignation. This clause is equivalent to section 15 of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation of the provision. 1280. The provision includes a new requirement that a copy of the resignation must be provided to the President. This ensures that the President is aware of the resignation immediately, and can consider any actions required in relation to matters that the member has been constituted to. Clause 221: Termination of appointment 1281. This clause sets out the process for termination of a non-judicial member's appointment. It provides mandatory and discretionary grounds for terminating members' appointments. Members who are judges are not covered by these provisions, as termination of judges' appointments is dealt with in the legislation establishing the relevant court. This clause replaces section 13 of the AAT Act. Process of terminating a member's appointment 1282. The Governor-General retains the power to terminate a non-judicial member's appointment. The clause provides that the Governor-General acts on recommendation of the Minister. It works in tandem with clause 222, which provides that the President 184

must notify the Minister if they believe there are grounds for termination. In this way termination will only occur if both the President and the Minister consider that grounds for termination exist, and the Minister concludes termination is appropriate. This safeguards the independence of Tribunal members by ensuring multiple senior decision-makers are involved in a decision to terminate a member's appointment. 1283. Section 13 of the AAT Act provides the Governor-General may remove a member (for proved misbehaviour or physical or mental incapacity) if both houses of the Parliament call for the removal. This was the only way a member's appointment could be terminated. 1284. The AAT Act provision mirrored the grounds for removal of a federal judge - an exceptionally high threshold, with significant procedural barriers to its exercise. This clause realigns the termination process for Tribunal members with community expectations with regard to proper accountability of members in relation to their conduct and performance. Non-judicial tribunal members are not judges, but they do perform independent functions. Termination of their appointment can only occur for limited reasons, where continuation of their appointment could be inconsistent with the maintenance of public trust and confidence in the Tribunal. These provisions are expected to be used rarely, and only as a last resort. Discretionary grounds for termination 1285. Circumstances when the Governor-General may terminate a non-judicial member's appointment are provided in subclauses (1) and (2) (and listed in Table 6 below). Where these grounds for termination exist, the Minister may decide not to recommend termination to the Governor-General. This may occur if there is a reasonable explanation for the conduct. For example, if a member were absent without leave due to a serious injury or mishap and took steps to rectify the situation once able to do so. 185

Table 6--Comparison of discretionary grounds for termination with AAT arrangements Grounds for termination Modifications to existing New grounds for that remain equivalent to grounds for termination termination the AAT Act If the member: If the member: If the member: • is unable to perform • is a salaried member • is convicted of an their duties because and is absent, indictable offence of physical or mental without leave, • engages in a serious incapacity for five consecutive breach of the code of • is a sessional days or for 10 days in conduct or member and is any 12 months performance unavailable, without • engages in serious standard (such as leave, to perform misconduct (modifies repeated breaches, their duties for more current ground of breaches that than three months proved negatively affect • is a salaried member misbehaviour) public trust and and engages in paid confidence in the work outside their Tribunal or by failing duties without the to comply with a President's approval direction from the • is a sessional President in relation member and engages to the breach) in paid work that conflicts or could conflict with the proper performance of their duties • fails, without reasonable excuse, to comply with the disclosure of interest requirements Indictable offence 1287. Paragraph (1)(a) creates a new ground of termination, if a member is convicted of an indictable criminal offence during their term of appointment. This reflects the need for all people working within the Tribunal to be fit and proper persons, and to uphold public confidence in the Tribunal. 186

Incapacity 1288. Paragraph (1)(b) provides that physical or mental incapacity is a ground for termination. This is a standard ground for the termination of a statutory office holder. This ground for termination only applies where the incapacity prevents the member from performing their duties. Serious misconduct 1289. Paragraph (1)(c) provides for the ability to terminate a non-judicial member's appointment for serious misconduct. Serious misconduct is defined in clause 4 to include unlawful discrimination under the AHRC Act, or serious or repeated bullying or harassment of a person. This threshold is instead of 'misbehaviour', which is used in the AAT Act and not defined. The threshold of 'misbehaviour' mirrors the threshold for federal judicial office holders, and is consistent with the language used in the constitution. Misbehaviour in this context means behaviour that renders a judge unsuitable as a repository of federal judicial power.2 Changing the threshold to serious misconduct acknowledges that non-judicial Tribunal members are not judicial officers. It also aligns with community expectations and reflects concepts used elsewhere, such as in the Fair Work Regulations 2009. 1290. Examples of serious misconduct would include, but not be limited to: • serious bullying, discrimination or sexual harassment • conduct that causes a serious and imminent risk to the health or safety of a person, and • wilful or deliberate behaviour that is inconsistent with the continuation of the member's appointment. 1291. This ground for termination overlaps with paragraph (1)(f) regarding serious breaches of the code of conduct. It would be expected that conduct which constitutes serious misconduct would be dealt with in that code. It is included as a separate ground to ensure that serious misconduct can be addressed in the event it is not covered in the code, or there is a doubt about whether it is covered. 1292. A recommendation by the Minister to terminate a member's appointment may be informed by an independent investigation which has found serious misconduct. Absence without leave 1293. Paragraphs (1)(d) and (1)(e) provide for termination due to absence without leave. The Bill reduces the time that members may be absent without leave before there is ground for termination. Under the AAT Act, full-time members could be absent without leave for or 14 consecutive days or for 28 days in any 12 months. This is a significant period of time for a highly-paid government official to be absent from their role without leave. The new threshold of five and 10 days respectively is more appropriate. 1294. The arrangements for sessional members (part-time members under the AAT Act) are not changed. 2 The Honourable Geoffrey Nettle AC KC 'Removal of Judges From Office' (2021) 45(1) Melbourne University Law Review 242, 276. 187

Serious breaches of the code of conduct and performance standard 1295. Paragraphs (1)(f), (1)(g) and subclause (2) provide for the Minister to recommend that a member's appointment be terminated where that member has engaged in conduct that constitutes a serious breach of the code of conduct or performance standard. This ensures that where breaches of the code of conduct or performance standard created by the President under clauses 201 and 202 are particularly severe, the member can be removed from the Tribunal. It is expected that the code of conduct and performance standard would provide a range of consequences for breaches. Termination would be a last resort, but would be important where the member's continuation on the Tribunal is inconsistent with maintenance of public trust and/or a safe environment. 1296. Subclause (2) provides non-exhaustive examples of a serious breach of either the code of conduct or performance standard. This includes: • when a member has repeatedly breached the code of conduct or performance standard • where the breach of the code of conduct or performance standard is likely to have, or is having, a damaging effect on public trust and confidence in the Tribunal, and • breaching the code of conduct or performance standard and failing to comply with a direction under subclause 200(1) in relation to the breach. 1297. The list in subclause (2) is not exhaustive and each of the paragraphs stand alone. In this regard, while paragraph (2)(a) provides that repeated breaches of the code of conduct or performance standard can constitute a serious breach, a single breach of the code of conduct or performance standard could also be so serious as to meet this ground for termination. The President should consider whether conduct is a serious breach of the code of conduct or performance standard, in complying with the obligation in clause 222 to refer such conduct to the Minister for consideration of whether a member's appointment should be terminated. 1298. The Tribunal is made up of its members (subclause 10(1)) and its effective functioning relies on public trust in their integrity. It is essential that serious breaches of conduct and performance standards that may damage this trust can be addressed including, where necessary, by removal of the member. Outside paid work and disclosure of interests 1299. Paragraphs (1)(h), (i) and (j) largely replicate grounds from section 13 of the existing AAT Act. They provide that the Minister can recommend the termination of a member's appointment in circumstances where the member fails to comply with the requirements in clauses 216, 217 or 218 (relating to paid work, appearances before the Tribunal, and disclosure of interests). 1300. These grounds for termination are important in maintaining the public trust in the Tribunal by ensuring that all members are seen to be independent and impartial decision-makers. They underscore the significance of members' obligations to avoid actual or apparent conflicts of interest. 1301. Subsection 13(3) of the AAT Act is not directly replicated in this provision. Subsection 13(3) deals with conflict of interest for members dealing with migration matters. This does not need to be replicated as it is covered by the broader conflict of interest provisions in clause 218. 188

Mandatory grounds for termination 1302. Subclause (3) outlines the circumstances when the Governor-General must terminate a non-judicial member's appointment. These circumstances are if the member: • becomes bankrupt • applies to take the benefit of any form of legal relief of bankrupt or insolvent debtors • compounds with the member's creditors, or • assigns the member's remuneration for the benefit of the member's creditors. 1303. Subclause (3) guards against the potential for a member to become financially vulnerable to corruption. These circumstances are sufficiently objective and serious as to warrant termination of an appointment without discretion. This is consistent with arrangements for the Auditor-General under the Auditor-General Act 1997 and members of the National Native Title Tribunal under the Native Title Act 1993. Clause 222: President must notify Minister about grounds for termination 1304. This clause requires the President to notify the Minister as soon as possible if the President reasonably believes that a ground for terminating a member's appointment exists. This is a new feature of the AAT Act. Importantly, this notification does not automatically require termination of the member's appointment (other than for the non-discretionary grounds in subclause 221(3)). However, it does ensure that the Minister, as the entity responsible for making recommendations about the appointment and termination of members, remains informed of potential issues within the Tribunal. 1305. This notification may occur before or after the President commences an investigation into a member's conduct (under clause 203) - although must occur 'as soon as possible' from when the President 'reasonably believes' that conduct has occurred, and meets the threshold for termination. In some circumstances, the President may need to conduct such an investigation in order to 'reasonably believe' that grounds for termination exist. 1306. There is no equivalent provision in the AAT Act, which has caused uncertainty as to whether conduct or performance issues that could be grounds for termination of a member's appointment have been escalated for consideration by the Minister, Parliament or Governor-General. Ensuring that there is a clear pathway to deal with significant conduct or performance issues is critical for ensuring public trust and confidence in the decision-making of the Tribunal. Clause 223: Additional terms and conditions 1307. This clause would enable the Minister to determine additional terms and conditions of a non-judicial member's appointment, to the extent those terms and conditions are not otherwise covered by this Bill. This could include matters such as the location where the duties of the office are to be performed. This clause is equivalent to subsection 8(7) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation of the provision. 189

Division 4--Management of Tribunal Subdivision A--Management functions of President Clause 224: Management of administrative affairs of Tribunal 1308. This clause provides that the President has responsibility for managing the administrative affairs of the Tribunal. This clause is equivalent to section 24B of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation of the provision. 1309. The term 'administrative affairs' is intended broadly and encompasses everything required in relation to the Tribunal's operations. This responsibility is in addition to the President's leadership functions in clause 193. 1310. Administrative affairs do not include the corporate and registry services of the Tribunal, which are to be provided by the Principal Registrar (see clause 226). This carve-out provides a clear demarcation of responsibilities between the President and Principal Registrar in relation to the management of the Tribunal. Subdivision B--Appointment and functions of Principal Registrar Clause 225: Principal Registrar 1311. This clause creates the position of CEO and Principal Registrar of the Tribunal. The functions and responsibilities of the Principal Registrar are set out in clauses 226, 238 and 241. 1312. The Principal Registrar is the agency head for the purposes of the PS Act, and the Accountable Authority under the PGPA Act. The Principal Registrar has responsibility for corporate management of the Tribunal, including managing its APS staff. The Principal Registrar also assists the President to manage the administrative affairs of the Tribunal. To support this function, the Principal Registrar has responsibilities and powers in relation to the Tribunal's statutory functions. Clause 226: Functions of Principal Registrar 1313. This clause provides the functions of the Principal Registrar. It replaces part of section 24B and section 24D of the AAT Act, and provides greater clarity about the Principal Registrar's responsibilities in relation to corporate and registry services, as distinct from the President's broader responsibilities for the administration of the Tribunal. Assisting the President 1314. Paragraph (1)(a) gives the Principal Registrar the function of assisting the President in managing the administrative affairs of the Tribunal. It replicates section 24B and subsection 24D(1) of the AAT Act. Administrative affairs do not include corporate and registry services (see clause 224 and subclause 226(2)). The Tribunal's objective 1315. Paragraph (1)(b) gives the Principal Registrar the function of assisting the Tribunal to promote the objective in clause 9 of the Bill. This function ensures that the Principal Registrar is required to actively consider how the Tribunal is progressing against its objective, and to promote the objective and strategies to better pursue it to others in 190

the Tribunal. As a senior leader of the Tribunal, and a member of the Committee, it is appropriate for the Principal Registrar to assist the Tribunal in pursuing its objective. Providing corporate and registry services 1316. Paragraph (1)(c) gives the Principal Registrar the function of providing the corporate and registry services of the Tribunal. This approach is consistent with the approach taken in legislation establishing federal courts and tribunals as well as state and territory tribunals, which leave 'corporate services' to the CEO/Principal Registrar equivalent. This model enables the President of the Tribunal to focus on adjudicative, managerial and leadership functions, rather than corporate and registry tasks. Other functions and incidental actions 1317. Paragraphs (1)(d) and (1)(e) provide for the Principal Registrar to perform additional functions or tasks, either as provided through legislation, or those things that are incidental or conducive to the performance of their functions. Corporate and registry services 1318. Subclause (2) lists the matters that are the corporate and registry services of the Tribunal. They are the following: • communications, which would include managing information and publications (online and in print), and managing internal and external communication • finance, which would include asset management, finance systems administration, accounts receivable, accounts payable, credit card processing, travel management, financial controls, tax management, balance sheet management, internal and external budgeting, and finance governance • HR, which would include workforce planning, recruitment, managing payroll, HR systems administration, HR administration and HR initiatives and project delivery • work health and safety, which would include education and training of Tribunal staff, and other measures to uphold a safe and healthy workplace environment • IT, which would include IT service desk, applications development and support, network support, general IT management, IT security and records management • libraries, which would include library services for members and staff • records management, which would include the management of electronic and paper-based records • administrative and case management support for proceedings in the Tribunal, which would include legal support, general registry assistance with proceedings and management of complaints about matters • procurement and contract management, which would include procurement management, contract management (including the management of external security contracts), and fleet vehicle management • property, which would include managing national property and accommodation initiatives, outsourced property contracts, building fit outs, and environmental management • risk oversight and management, which would include internal audit and risk management 191

• security, which would include providing for the physical and information security of the Tribunal • statistics, which would include assisting with the collection, extraction, archiving and reporting of data, managing collection methodology and quality controls, and providing analysis to support monitoring and research projects, and • any other matter prescribed by the rules, made under clause 295. 1319. These matters are largely consistent with the corporate service functions of the CEO of the FCA, adapted to reflect the Tribunal context. 1320. Subclause (3) provides that the Principal Registrar is not subject to direction by the President in relation to the Principal Registrar's performance of functions or exercise of powers under the PGPA Act, and the PS Act. This replicates the arrangements in subsection 24A(3) of the AAT Act, and ensures that the President cannot direct the Principal Registrar to act in a way that is inconsistent with their legislated duties under other Acts. Clause 227: Appointment of Principal Registrar 1321. This clause outlines the appointment process for the Principal Registrar. It replaces section 24C of the AAT Act, including with the addition of a merit-based assessment process, consistent with other statutory appointees to the Tribunal. Appointment by Governor-General 1322. Subclauses (1) and (2) provide that the Principal Registrar is to be appointed by the Governor-General, by written instrument, on the recommendation of the Minister. The Minister, before making their recommendation to the Governor-General, must be satisfied that the person has appropriate qualifications, knowledge or experience to perform the role and functions of Principal Registrar (paragraph (2)(a)). 1323. The Minister must be satisfied that the candidate was assessed as suitable through a merit-based, publicly advertised assessment process which complies with any requirements in the regulations (paragraph (2)(b)). 'Merit-based' is defined in clause 4 of the Bill, and explained further in clause 205 above. 1324. Paragraph (2)(c) requires the Minister to obtain the agreement of the President in relation to the appointment, which reflects the close working relationship needed between the Principal Registrar and the President. 1325. Cumulatively, these requirements put the Tribunal in a strong position for success by ensuring that only a highly qualified individual, with the support of the President, can be appointed as the Principal Registrar. Period and basis of appointment 1326. Subclauses (3) and (4) provide that the Principal Registrar is appointed on a salaried basis, and will hold office for five years. The Principal Registrar is an important position, holding legislated functions, powers and responsibilities relating to the corporate and registry services of the Tribunal. As such, it is expected the Principal Registrar will work regular hours. Unlike for members, the Governor-General cannot appoint the Principal Registrar for a period of less than five years. This is because of the operational inefficiency of a short-term Principal Registrar. Given there is only one Principal Registrar, circumstances requiring a shorter term of appointment are less likely to arise. 192

Reappointment 1327. A person who holds the position of Principal Registrar may be reappointed to the position, pursuant to section 33AA of the Interpretation Act. Subclause (5) modifies the process for reappointment, allowing an incumbent to be reappointed without being re-assessed through a merit-based process. It may be desirable to have a single occupant in the position of Principal Registrar for more than one term in order to maintain institutional knowledge relating to the Tribunal. The President must agree to the reappointment. Clause 228: Acting appointments 1328. This clause enables the President, by written instrument, to appoint a person to act as the Principal Registrar. This may be during a vacancy in the office of Principal Registrar, whether or not an appointment has previously been made to the office. It may also be during any period, or during all periods, when the Principal Registrar is either absent from duty or from Australia; or is, for any reason, unable to perform the duties of the office. 1329. This ensures the Principal Registrar can take recreation or personal leave with appropriate arrangements to manage the responsibilities of the Tribunal. This clause is equivalent to section 24M of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation of the provision. Clause 229: Remuneration 1330. This clause sets out the means for determining the remuneration and allowances for the Principal Registrar. It provides that the Principal Registrar is to be paid the remuneration that is determined by the Remuneration Tribunal. In the absence of a determination by the Remuneration Tribunal, the Principal Registrar is paid the remuneration that is prescribed by the rules (rather than by regulation, as was provided in the AAT Act). This clause is equivalent to section 24E of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation of the provision. 1331. It is appropriate for the remuneration of the Principal Registrar to be determined by the Remuneration Tribunal as it is an independent statutory body that handles the remuneration of key Commonwealth offices. Such a determination would be a disallowable instrument under the Legislation Act. This means that the determination would be required to be tabled in both Houses of Parliament, and either House may pass a resolution disallowing the determination within 15 sittings days of the determination being tabled. 1332. The ability to prescribe the remuneration in the rules allows flexibility to ensure the Principal Registrar can be appropriately remunerated if there is any delay in the making of a determination by the Remuneration Tribunal, or if a determination is disallowed by either House of Parliament. 1333. The rules would also be able to prescribe the allowances that the Principal Registrar would be paid. 193

Clause 230: Leave 1334. This clause provides that the Remuneration Tribunal determines the recreation leave entitlements of the Principal Registrar. This clause is equivalent to section 24G of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation of the provision. 1335. This clause also empowers the President to grant the Principal Registrar a leave of absence, other than recreation leave, on any terms and conditions that the President determines. This provides flexibility for the President to consider requests from the Principal Registrar for other types of leave--for example, discretionary leave to attend a funeral, where it may not be appropriate for the Principal Registrar to use their recreation leave entitlement for this purpose. Clause 231: Other paid work 1336. This clause is equivalent to section 24J of the AAT Act, with some changes to increase transparency and accountability in the performance of the office of the Principal Registrar. It has minor updates to reflect modern drafting practices. These do not affect the operation of the provision. 1337. The clause stipulates that the Principal Registrar cannot engage in paid work outside their duties unless approved by the President. This minimises the likelihood of conflicts of interests arising, and ensures the Principal Registrar's independence and performance are not compromised by outside commitments. Service in the Australian Defence Force is excluded from the requirement to seek the President's approval through the definition of paid work in clause 4. 1338. Failure to comply with this clause is a ground of termination under clause 234. Clause 232: Disclosure of interests 1339. This clause sets out arrangements to support the disclosure of interests by the Principal Registrar under the PGPA Act. Subclause (1) requires that a disclosure by the Principal Registrar under section 29 of the PGPA Act must be made to the President. Section 29 provides that an official of a Commonwealth entity who has a material personal interest that relates to the affairs of the entity must disclose the details of this interest. 1340. Section 29 of the PGPA Act also allows rules to specify details about how and when an interest must be disclosed. Subclause (2) provides that the requirement to make the disclosure to the President is additional to any rules made under the PGP Act. 1341. A breach of subclause (1) would be treated as a breach of section 29 of the PGPA Act, and is a ground of termination under clause 234 (subclause (3)). 1342. This clause replaces section 24L of the AAT Act, under which the PGPA Act requirement to disclose interests did not apply to the Registrar. This change standardises a key accountability in the performance of the functions of the Principal Registrar, and ensures the declaration is made to the President in recognition of the Tribunal's structure. Clause 233: Resignation 1343. This clause permits the Principal Registrar to resign in writing to the Governor-General. Such a resignation would take effect on the day it is received by 194

the Governor-General, or on a later date specified in the resignation. This clause is equivalent to section 24H of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation of the provision. Clause 234: Termination of appointment 1344. This clause sets out the process for termination of the Principal Registrar's appointment. The clause provides mandatory and discretionary grounds for terminating the appointment of the Principal Registrar. This clause is equivalent to section 24K of the AAT Act. Process of terminating the Principal Registrar's appointment 1345. The Governor-General holds the power to terminate a Principal Registrar's appointment. This is appropriate as it is the Governor-General who appoints the Principal Registrar. The clause provides that the Governor-General acts on recommendation of the Minister. 1346. This clause aligns the termination process for the Principal Registrar with the process for Tribunal members in relation to their conduct and performance as far as relevant. Termination of the Principal Registrar's appointment can only occur for limited reasons, where continuation of their appointment could be inconsistent with the maintenance of public trust and confidence in the Tribunal. These provisions are expected to be used rarely, and only as a last resort. Discretionary grounds for termination 1347. Circumstances when the Governor-General may terminate the Principal Registrar's appointment are provided in subclause (1) (and listed in Table 7 below). Where these grounds for termination exist, the Minister may decide not to recommend termination to the Governor-General. This may occur if there is a reasonable explanation for the conduct. For example, if the Principal Registrar was absent without leave due to a serious injury or mishap and took steps to rectify the situation once able to do so. 195

Table 7--Discretionary grounds for termination of the Principal Registrar Grounds for termination Modifications to existing New grounds for that remain equivalent to grounds for termination termination the AAT Act If the Principal Registrar: If the Principal Registrar: If the Principal Registrar: • is unable to perform • is absent, except on • is convicted of an their duties because leave of absence, indictable offence of physical or mental for five consecutive • in the view of the incapacity days or for 10 days Minister, has • engages in paid work in any 12 months engaged in outside their duties • engages in serious unsatisfactory without the misconduct performance for a President's approval • fails, without significant period reasonable excuse, to comply with the disclosure of interest requirements under the PGPA Act Indictable offence 1348. Paragraph (1)(a) creates a new ground of termination, if the Principal Registrar is convicted of an indictable criminal offence during their term of appointment. This reflects the need for all people working within the Tribunal to be fit and proper persons, and to uphold public confidence in the Tribunal. Incapacity 1349. Paragraph (1)(b) provides that physical or mental incapacity is a ground for termination. This is a standard ground for the termination of a statutory office holder. This ground for termination only applies where the incapacity prevents the Principal Registrar from performing their duties. Serious misconduct 1350. Paragraph (1)(c) provides for the ability to terminate the Principal Registrar's appointment for serious misconduct. Serious misconduct is defined in clause 4 to include unlawful discrimination under the AHRC Act, or serious or repeated bullying or harassment of a person. This threshold is instead of 'misbehaviour', which is used in the AAT Act and not defined (further explanation is provided at clause 221). 1351. Examples of serious misconduct would include, but not be limited to: • serious bullying, discrimination or sexual harassment • conduct that causes a serious and imminent risk to the health or safety of a person, and 196

• wilful or deliberate behaviour that is inconsistent with the continuation of the Principal Registrar's appointment. 1352. Noting that the Principal Registrar is an agency head for the purposes of the PS Act, the Public Service Commissioner may separately investigate alleged breaches of the APS Code of Conduct under section 41A of the PS Act. Section 12 of the PS Act requires APS agency heads to not only 'uphold' but 'promote' the APS Values and Employment Principles, so if the Principal Registrar is found to have breached the APS Code of Conduct, this is likely to amount to 'serious misconduct' under this Bill. A recommendation by the Public Service Commissioner as a result of an investigation may therefore enable termination under this clause. Unsatisfactory performance 1353. Paragraph (1)(d) provides that unsatisfactory performance is a ground for termination of the Principal Registrar. The concept of unsatisfactory performance should be understood in relation to the Principal Registrar's functions in clause 226 - for example, a continued and unreasonable failure to comply with the Principal Registrar's duties and responsibilities under the PGPA Act, such that the financial sustainability of the Tribunal is threatened could constitute unsatisfactory performance. It would be a matter for the Minister to determine what constitutes unsatisfactory performance in the particular circumstances. The Minister would also have the discretion to determine what constitutes a significant period of time. Absence without leave 1354. Paragraph (1)(e) provides for termination due to absence. It reduces the time that the Principal Registrar may be absent without leave before there is grounds for termination. Under the AAT Act, the Principal Registrar could be absent without leave for or 14 consecutive days or for 28 days in any 12 months. This is a significant period of time for a senior government official to be absent from their role without leave. The new threshold of five and 10 days respectively is more appropriate. Outside paid work and disclosure of interests 1355. Paragraphs (1)(f) and (g) are largely replicated from section 24K of the existing AAT Act, noting the change discussed in clause 232 relating to the application of the PGPA Act requirements. They provide that the Minister can recommend the termination of the Principal Registrar's appointment in circumstances where the Principal Registrar fails to comply with the requirements in clauses 231 or 232 (relating to paid work and disclosure of interests under section 29 of the PGPA Act). 1356. These grounds for termination are important in maintaining the public trust in the Tribunal by ensuring that the Principal Registrar is seen to be independent and impartial. They underscore the significance of the Principal Registrar's obligation to avoid actual or apparent conflicts of interest. Mandatory grounds for termination 1357. Some conduct is so serious that there should not be discretion as to whether to terminate an appointment. The circumstances in which the Governor-General must terminate the Principal Registrar's appointment (listed in subclause (2)) are where the Principal Registrar: 197

• becomes bankrupt • applies to take the benefit of any law for the relief of bankrupt or insolvent debtors • compounds with the Principal Registrar's creditors, or • makes an assignment of the Principal Registrar's remuneration for the benefit of the Principal Registrar's creditors. 1358. Subclause (2) guards against the potential for the Principal Registrar to become financially vulnerable to corruption. These circumstances are sufficiently objective and serious to warrant termination of an appointment without discretion. This is consistent with arrangements for members of the National Native Title Tribunal. Clause 235: Additional terms and conditions 1359. This clause enables the Minister to determine additional terms and conditions of the Principal Registrar's appointment, to the extent those terms and conditions are not otherwise covered by this Bill. This could include matters such as the location where the duties of the office are to be performed. It is equivalent to subsection 24F(4) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation of the provision. Subdivision C--Leadership of Tribunal Clause 236: Tribunal Advisory Committee 1360. This clause establishes the Tribunal Advisory Committee to promote collaboration between the decision-making and administrative arms of the Tribunal, and provide a forum for strategic discussion about the Tribunal's operations. This is a new feature of the Tribunal. 1361. The Committee will be collectively responsible for advancing the objective of the new body. Providing senior leaders with explicit, and collective, responsibility for pursuing the objective will have a tangible and unifying impact on organisational culture and performance. The Committee will provide a forum for collaboration and to advise the President on a range of matters. The formalised structure will help to ensure that key decisions in relation to operations are considered by senior leaders who are both individually and collectively accountable for pursuing the statutory objective of the body and who are responsible for providing strategic leadership across the breadth of the Tribunal's operations. Membership 1362. Subclauses (2) and (3) provide that the Committee is comprised of the President (as Chair), the Principal Registrar, jurisdictional area leaders and any such other members nominated by the President. Functions 1363. Subclause (4) provides the functions of the Committee. The Committee does not have decision-making powers, rather it has a range of leadership and advisory functions. The Tribunal's objective 1364. Paragraph (4)(a) gives the Committee the function of promoting the Tribunal's objective outlined in clause 9 of the Bill. This function ensures that the Committee is required to actively consider how the Tribunal is progressing against its objective, and 198

to promote the objective and strategies to better pursue it to others in the Tribunal. Making this expectation explicit also ensures a common purpose across the Tribunal, enabling a unified and consistent approach. Training, education and professional development 1365. Paragraph (4)(b) gives the Committee the function of promoting training, education and professional development amongst members of the Tribunal. 1366. What constitutes training, education and professional development is outlined in more detail in the explanation of clause 193 above. The ability of the Tribunal to provide high quality reviews of government decisions rests on a highly skilled and trained member workforce. This function ensures that the Committee is required to actively consider what education, training and professional development opportunities are necessary for the Tribunal to discharge its objective, and to promote this approach to others in the Tribunal. Overseeing the Tribunal's caseload 1367. Paragraph (4)(c) gives the Committee the function of overseeing the caseload of the Tribunal. This function is expressed in relation to the whole Tribunal. This reflects that the Committee has leadership responsibility across the Tribunal and must perform its functions in a manner consistent with the effective and efficient functioning, and achievement of the objective in clause 9, for the Tribunal as a whole. 1368. This function does not include day-to-day case management of individual matters. Rather, the Committee is expected to monitor the overall number of matters and timeliness of resolution, identify emerging issues in decision-making, and oversee development of strategies to support the efficient and effective resolution of matters. Paired with the function outlined in paragraph 4(e) below, this paragraph ensures that the senior leadership of the Tribunal can ensure that best practice in caseload management and resolution strategies can be deployed across jurisdictional areas. Reviewing the Tribunal's performance 1369. Paragraph (4)(d) gives the Committee the function of reviewing the performance of the Tribunal, including its financial performance. This function provides an opportunity to consider how the Tribunal's operating budget intersects with the decision-making functions. For example, ensuring that Tribunal staff are assigned in a way that supports the entire Tribunal's operations, and preventing one area from 'over-servicing' its caseload at significant cost which has flow-on implications for matters in other jurisdictional areas. It also ensures that senior leaders are collectively responsible for providing advice on the Tribunal's financial sustainability and for addressing any financial risks or issues, such as overspends against the budget, as soon as they arise. Systemic issues 1370. Paragraph (4)(e) gives the Committee the function of overseeing trends and patterns across, and systemic issues in, the jurisdictional areas. 1371. Many members of the Committee will have individual functions under subclause 197(5) to oversee and respond to trends in the caseload of their jurisdictional area, in consultation with the President. This function creates a responsibility on the Committee to facilitate this discussion with the President, along with the other senior leaders in the Tribunal. It positions the Committee as a forum for 199

collaboration on trends and patterns in the Tribunal, enabling discussion of best-practice approaches to managing matters and sharing of successful strategies. 1372. It is vital that systemic issues in administrative decision making are identified and acted upon by the Tribunal. Bringing systemic issues, which have been identified at the jurisdictional area level to the Council will assist the President to identify any whole-of-government trends, which may not be apparent within an individual caseload. Advising the President and Principal Registrar 1373. Paragraph (4)(f) gives the Committee the function of advising the President and Principal Registrar on any matter relating to the above functions. This ensures that the Committee has the scope to advise the President and the Principal Registrar of any matter that comes before it. Advising the President on conduct, performance or practice directions 1374. Paragraph (4)(g) gives the Committee the function of advising the President on any matter relating to the code of conduct, the performance standard, or practice directions. 1375. Jurisdictional area leaders have responsibilities for performance and conduct management of members within their jurisdictional area. As such, their insight and input into what ought to be included in the performance standard and the code of conduct will be valuable to the President. This may include ensuring that specialist knowledge or skill sets can be appropriately reflected in the performance standard or feedback on new matters which ought to be included in the code of conduct (for example, to respond to new technology or social issues). The Principal Registrar's input will ensure that the perspective of non-member staff can be considered in these documents (noting that registry staff often interact with Tribunal members, and can provide different perspectives on member conduct and performance). 1376. Practice directions will cover nearly all elements of the Tribunal's operations, and will have a significant impact on Members and registry staff. Ensuring that the senior leaders of each of these cohorts can advise the President supports a continuous feedback loop on the operation and operationalisation of practice directions, allowing for adjustment over time. Incidental actions 1377. Paragraph (4)(h) allows the Committee to do anything incidental to the performance of its functions. This ensures that the Committee is not precluded from doing necessary ancillary activities, without substantively expanding the Committee's scope of operations. Stakeholder views 1378. Subclauses (5) and (6) provide that in performing its functions, the Committee must have regard to stakeholder views, such as from members, users, representatives and decision-makers. This ensures that the Tribunal stays informed about what stakeholders think should happen on operational matters. Consistent with the reform objective of a user-focused Tribunal, this sets an expectation that members of the Committee will inform themselves of different perspectives and respond appropriately. 200

1379. The requirement to have regard to stakeholder views does not apply to a member of the Committee who is a Judge, nor does it apply if the matter relates to a particular proceeding in the Tribunal. Meetings 1380. Subclauses (7), (8) and (9) set out how the Committee meets. The President must arrange, and chair, such meetings as are necessary for the performance of the Committee's functions. To provide some flexibility, the President is able to nominate a different Committee member to Chair a meeting if the President isn't able to attend. Division 5--Staff and consultants Clause 237: Appointment of registrars Appointment by Principal Registrar 1381. This clause allows the Principal Registrar to appoint registrars, and is a new feature of the Tribunal. With appropriate delegations or authorisations in place, registrars will be able to perform functions or exercise powers under Divisions 3 and 4 of Part 11 of the Bill. This may include giving notice to parties, granting extensions of time, holding directions hearings, appointing registrars or referring matters to dispute resolution processes. 1382. Allowing certain powers to be exercised by registrars will improve the efficiency of the Tribunal by enabling members to dedicate more of their time to decision-making and reducing administrative or lower-complexity tasks. Qualification for appointment 1383. Recognising the significance of the functions and powers that registrars may be delegated or authorised to exercise or perform, this provision requires a high level of qualification for appointment. Firstly, the Principal Registrar must only appoint a staff member of the Tribunal as a registrar (paragraph (2)(a)). Under the definition of 'staff member' in clause 4 above, this includes both staff of the Tribunal (see clause 238 below), and persons whose services are made available to the Tribunal (see clause 239 below). 1384. Secondly, the staff member must have one of the following: • a law degree (or similar qualifications equivalent) • qualifications, or have training or practical experience, in dispute resolution • experience related to one or more functions or powers of the Tribunal, in the opinion of the Principal Registrar (paragraph (2)(b)). 1385. These qualifications ensure that registrars have the appropriate skills or training to perform functions or exercise powers as delegated or authorised. Many of the functions and powers that a registrar might perform or exercise are of a quasi-legal character or involve dispute resolution, so these qualifications are relevant. The Principal Registrar may also decide that other experience is relevant to the functions and powers that a registrar might perform, and appoint them on that basis. This also allows staff with previous experience in other tribunals (such as state or territory tribunals, or other Commonwealth tribunals) to have this experience recognised within the Tribunal, even if they do not hold formal qualifications. 201

Clause 238: Staff 1386. This clause provides that the staff of the Tribunal must be persons engaged under the PS Act. It is equivalent to section 24N of the AAT Act, with a substantive change to remove IAA reviewers to reflect that the IAA is not part of the new Tribunal. The clause has minor updates to reflect modern drafting practices. These do not affect the operation of the provision. 1387. Subclause (2) provides that, for the purposes of that Act, the Principal Registrar and the APS employees assisting the Principal Registrar together constitute the Statutory Agency. The Principal Registrar constitutes the head of that Statutory Agency and, as such, has all the rights, duties and powers conferred under that Act including, for example, upholding and promoting the APS Values and APS Employment Principles outlined in that Act. Clause 239: APS employees and others made available 1388. This clause provides for the Tribunal to be assisted by employees of Commonwealth agencies (within the meaning of the PS Act) and officers of the Supreme Court of Norfolk Island, who may do work relating to any of the Tribunal's functions or powers. The clause is equivalent to section 24PA of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation of the provision. 1389. This clause provides the Tribunal with flexibility to enter into arrangements with employees of other agencies (usually courts) to perform some Tribunal functions and provide some Tribunal services in locations without a Tribunal registry, for example Norfolk Island. Such persons are included in the definition of 'staff members' in clause 4 above, and may be appointed as registrars by the Principal Registrar under clause 237 above if they possess the requisite qualifications. 1390. When performing services for the Tribunal under this clause, a person is subject to the directions of the Principal Registrar. This ensures that the Principal Registrar retains oversight of the provision of Tribunal services. This is particularly critical when a person assisting the Tribunal is also appointed as a registrar under clause 237 and authorised to exercise powers as an authorised person under Subdivision B of Division 4 of Part 11 of this Bill. Clause 240: Consultants 1391. This clause authorises the Principal Registrar to engage consultants, on behalf of the Commonwealth, to assist in the performance of the Tribunal's functions. This provides the Tribunal with flexibility in terms of staffing, including being able to bring on staff on a non-ongoing basis to assist with surges in the Tribunal's workload. 1392. The consultants would be engaged on terms and conditions determined by the Principal Registrar, ordinarily in a written agreement. 1393. This clause is equivalent to section 24Q of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation of the provision. 202

Division 6--Application of finance law and reporting requirements Clause 241: Application of finance law 1394. This clause is a standard provision which provides that the Administrative Review Tribunal is the name of the listed entity for the purposes of the PGPA Act and the rules and instruments made under that Act. It stipulates that the listed entity is made up of the Principal Registrar, staff members (see clause 4), persons engaged to conduct dispute resolution processes (see clause 90) and consultants (see clause 240). 1395. The Tribunal will be a non-corporate Commonwealth entity subject to the rules and obligations of the PGPA Act. A non-corporate Commonwealth entity is defined in the PGPA Act as a Commonwealth entity that is not a corporate Commonwealth entity. This means the Tribunal will legally form part of the Commonwealth and will not have a separate legal identity. As a non-corporate Commonwealth entity, the Tribunal will be able to enter into arrangements and commit relevant money on behalf of the Commonwealth. It will also be required to prepare a corporate plan and annual report each year. 1396. The Principal Registrar is the accountable authority of the listed entity. As the accountable authority, the Principal Registrar has responsibility for managing the Tribunal's affairs and ensuring the Tribunal performs its functions. The Principal Registrar has specific duties under Division 2 of Part 2-2 of the PGPA Act. For example, they are to govern the Tribunal in a way that promotes the proper use and management of public resources and establish and maintain appropriate risk oversight and management systems. 1397. This clause is equivalent to section 24BA of the AAT Act, with the addition of consultants and dispute resolution practitioners as officials of the listed entity. These persons may perform significant enough functions to warrant being listed as officials of the listed entity. These persons will have specific duties under Division 3 of Part 2-2 of the PGPA Act, such as the duty to act honestly, in good faith and for a proper purpose. An official's employment may be terminated if they contravene these duties. 1398. The PGPA Act requires accountable authorities to govern a Commonwealth entity in a way that promotes the achievement of the purposes of the entity. In addition to the purposes of a Commonwealth entity set out in the PGPA Act (the objective, functions or role of the entity), this clause provides that the purposes of the Tribunal for the purposes of the finance law include the functions of the Principal Registrar referred to in clause 226. Clause 242: Report by President 1399. This clause requires the President to produce an annual report, and sets out what must be included in it. Subclause (1) stipulates that as soon as practicable at the end of each financial year, the President must prepare an annual report of the management and administrative matters of the Tribunal during the financial year. 1400. This clause is equivalent to section 24R of the AAT Act, with some substantive changes to provide specific details of what is to be included in the report. A key purpose of this Bill is to enhance the transparency and the accountability of the Tribunal, and promote public trust and confidence in its decision-making capabilities. In pursuit of this aim, subclause (2) stipulates mandatory inclusions for the report to 203

ensure there is a transparent and publicly accessible record of whether the Tribunal is meeting its objective. These are: • a description of measures taken to meet its objective (contained in clause 9) • an assessment of the operation of each jurisdictional area and the guidance and appeals panel for that year • the number of applications for review made to the Tribunal and particulars of the results of reviews of decisions by the Tribunal during the year • the number of guidance and appeals panel proceedings in the Tribunal and particulars of the results of those proceedings • the number of proceedings involving non-participating parties under clause 60 • a summary of actions taken under clause 185 (referring questions of law to the FCA) • a summary of actions taken by the President or jurisdictional area leaders to identify systemic issues in their caseload and to inform Ministers, Commonwealth entities and the Council of those issues • an overview of actions taken in relation to non-judicial members upholding the code of conduct and meeting the performance standard, and in relation to member training, education and professional development • a description of measures taken by the President to engage with civil society (see clause 193 above for an explanation of this function) and persons whose interests are affected by reviewable decisions, and • any other information prescribed by the rules. 1401. In relation to paragraph 2(j), an overview of actions taken in relation to the code of conduct, performance standard, investigations and professional development, it is not intended that the President should describe actions taken in relation to individual members or specific complaints. The description in the report should respect individual privacy and be sensitive to the interests of persons involved (whether complainants, or those who are the subject of a complaint). 1402. Under subclause (3) the President must give a copy of the report to the Minister by 15 October following that financial year. Under subclause (4) the Minister must ensure a copy of the report is tabled in each House of the Parliament within 15 sitting days of receiving the report. 1403. Under section 46 of the PGPA Act, the Principal Registrar must also prepare and give an annual report to the Minister, for presentation to Parliament, on the Tribunal's activities during the period. Subclause (5) provides that the report on the Tribunal's activities may include the President's report prepared under this clause. This supports efficiency in the preparation of these reports due to the high potential for overlap in the relevant information for inclusion. It also supports parliamentary oversight of the Tribunal's operations, by enabling a single report to be prepared covering both PGPA Act obligations and those under clause 242 of the Bill. Division 7--Other matters concerning management Clause 243: Registries 1404. This clause empowers the Minister to establish registries of the Tribunal. Registries are an important part of the Tribunal's service delivery model. They are the physical 204

presence of the Tribunal, and allow for members of the public to directly engage with the Tribunal's services. This may include physically lodging documents (if online lodgement is not available), or physically attending hearings. This clause is equivalent to section 64 of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation of the provision. 1405. At the time that the Tribunal commences operations, all existing AAT registries will become Tribunal Registries, supporting a smooth transition, while ensuring that the Tribunal remains physically accessible to the public. Clause 244: Proceedings arising out of management of Tribunal 1406. This clause provides that proceedings relating to the management of the administrative affairs of the Tribunal may be instituted by or against the Commonwealth. This is to reflect that the Tribunal is a Commonwealth entity, and as such any cause of action which arises as a result of the lawful management and administration of the Tribunal would appropriately be issued by, or against, the Commonwealth, rather than individuals or the entity itself. 1407. This clause is equivalent to section 24W of the AAT Act, with a substantive change to include anything done by the President (not only the Principal Registrar) under Divisions 4 to 7 of this Part of the Bill (relating to management, staff and consultants, application of finance law and reporting). This reflects that 'administrative affairs' of the Tribunal are the President's responsibility. 205

PART 9--ADMINISTRATIVE REVIEW COUNCIL 1408. This Part establishes the Council, sets out its functions and powers, administrative arrangements (including the appointment and remuneration of certain Council members), and annual reporting requirements. Division 1--Preliminary Clause 245: Simplified outline of this Part 1409. This clause provides a simplified outline of this Part. 1410. The simplified outline assists readers to understand the substantive provisions of this Part. The outline is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions of the Bill. Division 2--Establishment Clause 246: Administrative Review Council 1411. This clause establishes the Council. 1412. This clause is equivalent to section 48 of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 247: Membership of Council 1413. This clause outlines the membership of the Council. The Council consists of: • the President of the Tribunal • the Commonwealth Ombudsman • the Australian Information Commissioner, and • not fewer than three or more than 10 other members. 1414. This clause differs from the existing composition of the Council under section 49 of the AAT Act, which comprises: • the President of the Tribunal • the Commonwealth Ombudsman • the President of the Australian Human Rights Commission • the President of the Australian Law Reform Commission • the Australian Information Commissioner, and • not fewer than three or more than 10 other members (or a higher number than 10 if prescribed in regulations). 1415. This clause ensures that the Council's ex officio membership is limited to office-holders with a strong or total focus on administrative decision-making. Other statutory officers, such as the President of the Australian Human Rights Commission and the President of the Australian Law Reform Commission, can be appointed under subclause (2) as members of the Council as required. 1416. The power to prescribe in regulations a higher number than 10 other members under section 49 of the AAT Act is not being replicated. The functions of the Council can be achieved through a membership not exceeding 10 other members. Removing this regulation-making power ensures greater certainty about the size of the Council. 206

1417. Subclause (2) ensures that the Council's performance of its functions, or the exercise of its powers, is not affected merely because: • there is a vacancy in the office of a Council member, or • the number of appointed Council members falls below three for less than six months. 1418. This ensures the effective continued functioning of the Council, notwithstanding periods of vacancies in offices of the Council for reasonable periods of time. 1419. This clause is equivalent to subsection 49(3) of the AAT Act, with a substantive change to increase the period of time in which the Council is not affected by the number of appointed Council members falling below three from 'not more than three months' to 'less than six months.' This provides additional flexibility while still maintaining reasonable minimum requirements for the continued operation of the Council, noting that selection processes for appointment may take between three to six months. Clause 248: Application of finance law 1420. This clause provides for the application of finance law to the Council. The term 'finance law' has the same meaning as in the PGPA Act. The term encompasses the PGPA Act, the rules, other instruments made under that Act, or the Appropriation Acts. 1421. Subclause (1) prescribes the Council in relation to the Department administered by the Minister (the Department), a department of state, for the purposes of the PGPA Act. This means the Council is to be treated as part of the Department for the purposes of the PGPA Act. This also means that members of the Council are officials of the Department for the purpose of the accountability obligations under the PGPA Act, including, for example, the general duties of an official in that Act (see sections 25 to 29 of the PGPA Act). Furthermore, an annual report prepared by the Secretary of the Department is required to cover the Council's activities (see section 46 of the PGPA Act). Public resources expended for the purposes of the Council will also be used and managed by the Department, through the Secretary as the accountable authority. 1422. Subclause (2) provides that Council members who are officials of a different Commonwealth entity are not officials of the Department merely because they are a Council member. This means that officials of other Commonwealth entities who are appointed Council members are not considered officials of the Department for the purpose of the accountability obligations under the PGPA Act. This is appropriate as those members are already subject to existing accountability obligations under the PS Act and APS Code of Conduct, unlike other Council members who are not already government officers. 1423. This a new provision, aiming to provide clarity on the application of finance law to the Council. 207

Division 3--Council functions etc. Clause 249: Functions and powers of Council 1424. This clause stipulates the functions of the Council. Under subclause (1), the Council has the following functions: • to monitor the integrity and operation of the Commonwealth administrative law system • to inquire into the adequacy of procedures used in relation to the making of administrative decisions and the exercise of administrative discretions, and consult and advise in relation to those procedures • to inquire into systemic issues related to the making of administrative decisions and the exercise of administrative discretions • to inquire into the availability, accessibility and effectiveness of review of administrative decisions and administrative discretions • to develop and publish guidance in relation to the making of administrative decisions and the exercise of administrative discretions • to support education and training for officials of Commonwealth entities in relation to: - making administrative decisions and exercising administrative discretions, and - the Commonwealth administrative law system • any other function conferred on the Council by this Bill or another Act, and • to do anything incidental or conducive to the performance of any of the above functions. 1425. The Council's functions respond to recommendations 20.5 and 23.4 of the Robodebt Royal Commission Report. • Recommendation 20.5 called for the Council to be reinstated with similar functions to the Council previously established under the AAT Act, with a particular role in reviewing Commonwealth administrative decision-making processes. • Recommendation 23.4 called for the reinstated Council's functions to include providing training and developing resources to inform the APS about the Commonwealth administrative law system. 1426. The re-established Council's functions encompass the existing functions of the Council outlined in subsection 51(1) of the AAT Act. However, subclause (1) has been drafted in a less prescriptive manner to provide greater flexibility in the Council's functions. This ensures that the Council's functions sufficiently cover the breadth of Commonwealth administrative law systems and issues, and administrative decision-making, as well as the activities intended to be undertaken by the Council. 1427. Subclause (2) provides the Council with discretion to inquire into, prepare a report and make recommendations to the Minister on a matter relating to any of the Council's functions. The Council is able to do so on its own initiative or at the request of the Minister. 208

1428. This subclause represents a substantial change from the equivalent sections 51A, 51B and subsection 51C(1) of the AAT Act. Sections 51A, 51B and subsection 51C(1) of the AAT Act permit the Minister to refer matters to the Council for inquiry and report, and when this occurs, the Council is obliged to prepare and give a report on the matter to the Minister. Section 51A of the AAT Act permits the Minister to give directions to the Council in the performance of its functions, and the Council must comply with any such directions. This subclause more accurately reflects that the Council, as an independent body, is not subject to ministerial direction. 1429. Subclause (3) enables the Council to do all things necessary or convenient to be done for or in connection with the performance of its functions. This subclause is equivalent to subsection 51(2) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 1430. Subclause (4) ensures that 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. This provision ensures that every element of the administrative decision-making process, as well as administrative decisions made under an executive power rather than under an enactment, are captured in the Council's outline of functions. 1431. This subclause is equivalent to subsection 47(2) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 250: Reports by Council 1432. This clause requires the Council to prepare a report on a matter in respect of which the Council has determined that a report is to be prepared. The Council must give any reports prepared under this clause to the Minister. 1433. The Minister is required to cause a copy of the report to be tabled in each House of Parliament within 15 sitting days (of that House) after the report is given to the Minister. This ensures there is a permanent, public record of the Council's reports. The requirement to table the report within 15 sitting days provides for an appropriately timely tabling process, while also allowing sufficient time for the Minister to consider the report prior to tabling. 1434. The Council's report is not a legislative instrument within the meaning of section 8 of the Legislation Act. This is because reports are excluded from being classified as legislative instruments in accordance with item 12 of the table in section 6 of the Legislation Regulation. 1435. This clause is equivalent to section 51C of the AAT Act, with a substantive change to remove the requirement for the Council to produce reports on matters referred to it by the Minister. This more accurately reflects that the Council, as an independent body, is not subject to ministerial direction and therefore not obliged to conduct an inquiry or prepare a report requested by the Minister. However, should the Council exercise its discretion to conduct an inquiry on a matter requested by the Minister and determine that a report is to be prepared, then this clause requires that report to be provided to the Minister for tabling in Parliament. 209

Clause 251: Meetings of Council 1436. This clause requires the Council to hold meetings to enable the efficient performance of its functions, and prescribes requirements with respect to the conduct of such meetings. This clause also establishes key functions of the Chair of the Council, whose role is largely administrative and includes convening and presiding at Council meetings. The Chair of the Council replaces the current role of the President of the Council under the AAT Act. The change from President of the Council to Chair of the Council aims to avoid confusion with references to the President of the Tribunal. However, the role is the same. Convening meetings 1437. The Council is required to hold such meetings as are necessary for the efficient performance of its functions. The Chair of the Council has the discretion to convene a meeting at any time. 1438. This provision is equivalent to subsections 56(1) and (2) of the AAT Act, with minor updates to reflect that the President of the Council is now called the Chair of the Council, and to require that the meetings must be necessary for the efficient performance of the Council's functions. 1439. Subsection 56(3) of the AAT Act, which requires the President of the Council to convene a meeting on receipt of a request in writing signed by three members, is not replicated in this clause. This is appropriate noting the Chair of the Council has the discretion to convene a meeting at any time under subclause 251(2). Presiding at meetings 1440. The Chair of the Council is required to preside at all meetings at which the Chair is present. If the Chair is not present at a meeting, the Council members are required to elect one of themselves to preside. 1441. This provision is equivalent to subsections 56(5) and (6) of the AAT Act, with minor updates to reflect that the President of the Council is now called the Chair of the Council. Quorum 1442. At a meeting of the Council, a quorum is constituted by five Council members. 1443. This clause is equivalent to subsection 56(4) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Voting at meetings 1444. A question at a meeting of the Council is determined by a majority of the votes of the Council members present and voting. 1445. The person presiding at a meeting has a deliberative vote, and has a casting vote if votes are equal. 1446. This clause is equivalent to subsections 56(7) and (8) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 210

Conduct of meetings 1447. The Council is empowered to regulate proceedings at its meetings as it considers appropriate. 1448. This provision is equivalent to subsection 56(9) of the AAT Act, with a change to remove the requirement for the Council to keep minutes of proceedings. Keeping meeting minutes should be standard practice of the Council, and does not need to be legislatively mandated. Any minutes the Council creates will be retained and transferred to the National Archives, as required under the Archives Act. 1449. The note to this subclause refers to section 33B of the Interpretation Act, which provides further information about the ways in which Council members may participate in meetings. Subsection 33B(2) of that Act provides that a body established by an Act may permit its members to participate in a meeting or all meetings by telephone, closed-circuit television, or any other means of communication. There is no equivalent to this Note in section 56 of the AAT Act. It has been added to reflect modern technologies that may be used to allow members to participate in meetings. Division 4--Appointment Clause 252: Appointment of certain Council members 1450. This clause provides for the appointment of certain Council members, being members who do not automatically become members because they hold certain other Commonwealth offices. As outlined in clause 247, the Council's membership includes the President of the Tribunal, the Commonwealth Ombudsman, the Australian Information Commissioner, and at least three, but not more than 10, other members (the appointed members). 1451. This clause requires those appointed members to be appointed by the Governor-General by written instrument. In accordance with ordinary practice, the appointment of certain Council members by the Governor-General is to be made on the recommendation of the Minister. This clause also provides that appointed Council members are to be appointed on a part-time basis. 1452. The instrument of appointment is not a legislative instrument within the meaning of section 8 of the Legislation Act. This is because instruments of appointment are excluded from being classified as legislative instruments in accordance with item 8 of the table in section 6 of the Legislation Regulation. 1453. This clause is equivalent to subsection 49(2) of the AAT Act. It has minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 253: Appointment of Chair of Council 1454. This clause provides that one Council member must be appointed by the Governor-General (by written instrument) as the Chair of the Council. 1455. The clause further provides that where an instrument appointing a Council member states that the member is appointed for the purpose of taking part in a specified project in accordance with subclause 255(2), that person cannot be appointed as Chair 211

of the Council. Restricting a member who has been appointed to carry out a specific project from being appointed as Chair is appropriate because: • the limited rights of those members under subclause 255(3), and • the capacity of the Chair to terminate such appointments (usually at the end of a project, which could be an indeterminate point in time) could create administrative difficulties in maintaining continuity of the Chair. 1456. This clause ensures that the Chair can perform their functions effectively and with greater continuity. 1457. The instrument of appointment is not a legislative instrument within the meaning of section 8 of the Legislation Act. This is because instruments of appointment are excluded from being classified as legislative instruments in accordance with item 8 of the table in section 6 of the Legislation Regulation. 1458. This is a new provision, reflecting that the role of the President of the Council as outlined under the AAT Act will be carried out by the Chair of the Council under this Bill. Clause 254: Qualification for appointment 1459. This clause prescribes the minimum requirements for a person to be appointed as a Council member. This ensures that Council members have the appropriate skills, expertise or experience to carry out the functions of the Council. 1460. Subclause (1) provides that to be eligible to be appointed as a Council member, a person must: • have an extensive knowledge of administrative law or public administration • have extensive experience providing legal services related to administrative law • have direct experience, and direct knowledge, of the needs of people, or groups of people, significantly affected by government decisions, or • be an official of a Commonwealth entity who: - is an Agency Head (within the meaning of the PS Act) - is an SES employee, or - holds a position that is equivalent to, or higher than, a position occupied by an SES employee. 1461. To effectively discharge the functions of a Council member, a person is required to have specialist skills and expertise in administrative law or public administration, or have direct experience working with groups of people significantly affected by government decision-making. For example, these skills would likely be possessed by legal practitioners who have extensive experience providing legal services related to administrative law, or academics with extensive knowledge of administrative law or public administration. Senior officials of Commonwealth entities with responsibility for administrative decisions may also have the requisite skills and experience. 1462. Subclause (2) requires the Minister, when recommending the appointment of a person as an appointed member to the Governor-General, to take into account the need for a diversity of skills, expertise, experience and knowledge within the Council, and ensure that: 212

• there are at least two appointed members who were not officials of a Commonwealth entity immediately before their appointment, and • there is at least one appointed non-government member who has direct experience, and direct knowledge, of the needs of people, or groups of people, significantly affected by government decisions. 1463. This clause is equivalent to section 50 of the AAT Act, with a substantive change that imposes a new requirement to ensure the Council's membership includes individuals who have direct experience and knowledge of the needs of people, or groups of people, significantly affected by government decisions. Clause 255: Period of appointment 1464. Subclause (1) provides the general rule that an appointed Council member holds office for the period specified in the instrument of appointment, which must not exceed five years. 1465. Subclause (2) provides that an appointment instrument may state that the member is appointed for the purpose of taking part in a specified project that is being, or is to be, undertaken by the Council. 1466. Subclause (3) prescribes the requirements for when members are appointed for a specific project under subclause (2). In those circumstances, that member has limited right, and if the appointment has not otherwise ceased (under subclause (1) or termination), the appointment ceases when the Chair certifies in writing that the project is completed. 1467. This clause gives the Council flexibility in taking on extra members to be exclusively assigned to particular projects, as the need arises, and for their term of appointment and associated rights (such as remuneration) to reflect their actual engagement. 1468. This clause is equivalent to section 52 of the AAT Act, with substantive changes to extend the maximum period of appointment from three years to five years, and to not expressly reference that the person is eligible for re-appointment. The longer five-year period appropriately reflects the length of time Council members can be expected to hold their office to effectively fulfil the functions of the Council. It is also consistent with the periods of appointment for other appointments under this Bill, including for the President and members of the Tribunal. 1469. An express reference to re-appointment is not necessary, as appointed Council members are eligible for reappointment under section 33AA of the Interpretation Act. A re-appointment may occur if it is desirable to have an appointed Council member in the role for more than one term. 1470. The existing provision for termination of members appointed for a specific project by the Governor-General under paragraph 52(3)(c) of the AAT Act is not replicated under this clause, as it is provided for under subclause 261(3) of this Bill. Clause 256: Acting appointments 1471. This clause enables the Minister to appoint a Council member as Chair on an acting basis, by written instrument, in certain circumstances. 1472. An acting appointment can be made: 213

• during a vacancy in the office of the Chair (whether or not a Chair has previously been appointed), or • during any period when the Chair is absent from duty or from Australia, or is for any reason unable to perform the duties of the Chair. 1473. The note under this clause refers to sections 33A and 33AB of Interpretation Act for rules that apply to acting appointments. These rules relate to the validity of things done under appointments and provide for the terms, conditions and duration of acting appointments. 1474. This clause enables the appointment of a Council member as Chair on an acting basis. Over the course of an appointment, the Chair will likely take leave for rest and recreation, as well as personal leave for any illness or injury. Given that appointments processes can be lengthy, it is also possible that the position could be vacant following the end of a Chair's appointment. This clause ensures that a suitable and appropriate person can be appointed to occupy the role of Chair across all of these circumstances. 1475. This is a new provision. Clause 257: Remuneration 1476. This clause provides that an appointed Council member is to be paid the remuneration that is determined by the Remuneration Tribunal. In the absence of such a determination, the appointed Council member is to be paid the remuneration that is prescribed by the rules. 1477. It is appropriate for the remuneration of appointed Council members to be determined by the Remuneration Tribunal as it is an independent statutory body that is responsible for the remuneration of key Commonwealth offices. Given the responsibilities of appointed Council members, it is desirable for the remuneration to be determined by an experienced, independent authority. 1478. Such a determination is a disallowable instrument under the Legislation Act. This means that the determination is required to be tabled in both Houses of Parliament, and either House may pass a resolution disallowing the determination within 15 sittings days of the determination being tabled. 1479. The ability to prescribe remuneration in the rules allows flexibility to ensure appointed Council members can be appropriately remunerated if there is any delay in the making of a determination by the Remuneration Tribunal, or if a determination is disallowed by either House of Parliament. 1480. Subclause (2) provides that an appointed Council member is to be paid the allowances that are prescribed in the rules. 1481. The scope of the rule-making power conferred by this clause is subject to the Remuneration Tribunal Act 1973. This means that the remuneration prescribed in the rules can only be enforced where no determination by the Tribunal is in operation. 1482. This clause is equivalent to section 53 of the AAT Act, with minor updates to reflect modern drafting practices, including providing for rules rather than regulations where appropriate. These do not otherwise affect the operation or effect of the provision. 214

Clause 258: Leave 1483. This clause provides that the Minister may grant an appointed Council member leave of absence on terms and conditions determined by the Minister. This is appropriate noting the Remuneration Tribunal has no power to determine leave provisions for part-time office holders. 1484. This is a new provision, ensuring a mechanism is in place to enable leave entitlements to be determined. Clause 259: Disclosure of interest 1485. This clause requires Council members to disclose conflicts of interests to the Council. This refers to a situation where a Council member has, or acquires, a financial or other interest that may conflict with a matter being considered or about to be considered by the Council. 1486. Council members are required to disclose the nature of the interest at a meeting of the Council. The disclosure must be made as soon as possible after the relevant facts have come to the Council member's knowledge (subclause (2)) and must be recorded in the minutes of the Council meeting (subclause (3)). 1487. The Council member with an interest must not be present during any deliberation by the Council on the matter, and must not participate in any decision of the Council with respect to the matter, unless the Council determines otherwise (subclause (4)). When making such a determination, the Council member must not be present during any deliberation, nor participate in making the determination (subclause (5)). Any such determinations must be recorded in the minutes of the Council meeting (subclause (6)). 1488. This clause minimises the likelihood of conflicts of interest arising, and ensures that Council members' independence and performance is not compromised by outside interests. 1489. This is a new provision. Council members appointed under the AAT Act who were officials of a Commonwealth entity were covered by the conflict of interest obligations under section 29 of PGPA Act, which requires Commonwealth officials who have a material personal interest that relates to the affairs of the entity to disclose details of the interest. 1490. While section 29 of the PGPA Act applies to all Council members appointed under this Bill (in accordance with clause 248), clause 259 provides more robust safeguards by establishing relevant procedures for dealing with any conflict of interest disclosed to the Council. Clause 260: Resignation 1491. Subclause (1) permits appointed Council members to resign in writing to the Governor-General. 1492. Subclause (2) permits the Chair of the Council to resign as the Chair, without resigning as a Council member, in writing to the Governor-General. 1493. Under subclause (3), such resignation takes effect on the day it is received by the Governor-General or on a later day specified in the resignation. 215

1494. Subclauses (1) and (3) are equivalent to section 54 of the AAT Act. They have minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 1495. Subclause (2) is a new provision to accommodate the new role of the Chair, by allowing the Chair to resign as Chair without having to also resign as a Council member. Clause 261: Termination of appointment 1496. This clause sets out the process for terminating a Council member's appointment. The clause provides mandatory and discretionary grounds for terminating the appointment of a Council member. Process of terminating a member's appointment 1497. The Governor-General holds the power to terminate a Council member's appointment. This safeguards the independence of a Council member by ensuring they cannot be removed from office by the government of the day. It also recognises that the Governor-General appoints a Council member. 1498. This clause broadly aligns the termination process for a Council member with the process for Tribunal members. The clause recognises that trust and confidence in the Council relies on trust and confidence in their integrity of its members. In limited circumstances, where that may be at risk, the Governor-General may terminate an appointment. Discretionary grounds for termination 1499. Circumstances when the Governor-General may terminate a Council member's appointment are provided in subclause (1) (and listed in Table 8 below). 216

Table 8--Grounds for termination the Governor-General may act on Grounds for termination Modifications to existing New grounds for that remain equivalent to grounds for termination termination the AAT Act If a Council member: If a Council member: If a Council member: • is unable to perform • engages in serious • is convicted of an their duties because misconduct indictable offence of physical or mental incapacity • fails, without reasonable excuse, to • is absent, except on comply with the leave of absence, for disclosure of interest three consecutive requirements. meetings Indictable offence 1500. Paragraph (1)(a) creates a new ground of termination, if a Council member is convicted of an indictable criminal offence during their term of appointment. This reflects the need for all Council members to be fit and proper persons, and to uphold public confidence in the Council. Incapacity 1501. Paragraph (1)(b) provides that physical or mental incapacity is a ground for termination. This is a standard ground for the termination of a statutory office holder. This ground for termination only applies where the incapacity prevents a Council member from performing their duties. Serious misconduct 1502. Paragraph (1)(c) provides for the ability to terminate a Council member's appointment for serious misconduct. Serious misconduct is defined in clause 4 of this Bill to include unlawful discrimination under the AHRC Act, or serious or repeated bullying or harassment of a person. This threshold is instead of 'misbehaviour', which is used in the AAT Act and not defined (further explanation is provided at clause 221). 1503. Examples of serious misconduct include, but are not limited to: • serious bullying, discrimination or sexual harassment • conduct that causes a serious and imminent risk to the health or safety of a person, and • wilful or deliberate behaviour that is inconsistent with the continuation of a Council member's appointment. 217

Absence without leave 1504. Paragraph (1)(d) provides for termination due to absence and is consistent with subsection 55(2) of the AAT Act. Disclosure of interests 1505. Paragraph (1)(e) creates a new ground of termination, if a Council member fails, without reasonable excuse, to comply with the disclosure requirements in clause 259. This ground for termination is important in maintaining public trust in the Council by ensuring that Council members are, and are seen to be, independent and impartial. It underscores the significance of a Council member's obligation to avoid actual or apparent conflicts of interest. Mandatory grounds for termination 1506. Some conduct is so serious that there should not be discretion as to whether to terminate an appointment. Mandatory termination for a Council member is a new feature of the Council, but is consistent with the arrangements for Tribunal members. The circumstances in which the Governor-General must terminate a Council member's appointment (listed in subclause (2)) are where a Council member: • becomes bankrupt • applies to take the benefit of any law for the relief of the bankrupt or insolvent debtors • compounds with the member's creditors, or • makes an assignment of the member's remuneration for the benefit of the member's creditors. 1507. Subclause (2) guards against the potential for a Council member to become financially vulnerable to corruption. These circumstances are sufficiently objective and serious to warrant termination of an appointment without discretion. This is consistent with arrangements for the Auditor-General under the Auditor-General Act 1997. 1508. Subclause (3) provides that the Governor-General has the discretion to terminate, at any time, the appointment of Council members appointed for a specified project. Clause 262: Additional terms and conditions 1509. This clause enables the Minister to determine additional terms and conditions of an appointed member's appointment, to the extent that those terms and conditions are not otherwise covered by this Bill. This could include matters such as the location where the duties of the office are to be performed. This clause allows flexibility in determining any additional terms and conditions, and is consistent with other provisions in this Bill. 1510. The determination of the Minister in relation to the terms and conditions is not a legislative instrument within the meaning of section 8 of the Legislation Act. This is because instruments relating to terms and conditions of an appointment are excluded from being classified as legislative instruments in accordance with item 10 of the table in section 6 of the Legislation Regulation. This is appropriate because such terms and conditions are administrative in nature, on the basis that it determines the 218

particular circumstances in which additional terms and conditions of appointment are to apply. 1511. This is a new provision, reflecting standard rules in relation to appointments. Division 5--Staff to assist Council Clause 263: Arrangements relating to staff of the Department 1512. This clause provides for the Council to be assisted in performing their functions by staff of the Attorney-General's Department. 1513. The Secretary of the Department is required to consult with the Chair of the Council before making staff available to the Council. 1514. Staff performing services for the Council are subject to the directions of the Council. 1515. This clause is equivalent to section 57 of the AAT Act--which provides that staff of the Council shall be engaged under the PS Act--but provides greater detail and clarity about how staff should be engaged and directed. Division 6--Annual report Clause 264: Annual report 1516. This clause prescribes the requirements for the Council to produce an annual report. 1517. After the end of each financial year, the Council is required to prepare and give a report on the operations of the Council during that financial year to the Minister, for presentation to the Parliament. Annual reports provide general information on the operations of the Council, and an overview of the exercise of its functions and powers. 1518. In addition to this general information, subclause (2) specifically requires the annual report to 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. 1519. Subclause (3) provides the Council with discretion to include a description of: • any actions taken by the Council during that year in response to a systemic issue related to the making of reviewable decisions, and • any response, that the Council is aware of, by a Commonwealth entity or a Minister during that year in relation to a systemic issue. 1520. This allows the Council to provide a public record of any action taken by the Council or by a Commonwealth entity or Minister in response to a systemic issue. 1521. This clause represents a substantial change from the equivalent section 58 of the AAT Act, which simply required the Council to report on its operations for the year, and included tabling requirements. Clause 264 specifically requires the report to outline systemic issues the President has informed the Council of, ensuring there is a public record of these issues. This aligns with the President's function under paragraph 193(i), increases accountability, and promotes the Tribunal objective of improving the transparency and quality of government decision-making. 219

PART 10--NOTICE AND INFORMATION ABOUT ADMINISTRATIVE DECISION 1522. This Part makes provision for fundamental aspects of good administrative decision-making practice: notice of decisions and review rights, and reasons for decisions. Provision of notice and information about decisions assists users to decide whether and how to seek review. Division 1--Preliminary Clause 265: Simplified outline of this Part 1523. This clause provides a simplified outline of this Part. 1524. The simplified outline assists readers to understand the substantive provisions of this Part. The outline is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions of the Bill. Division 2--Decision-makers to give notice of decisions Clause 266: Decision-maker to give notice of decision and review rights 1525. This clause requires a decision-maker to take reasonable steps to give a person affected by a decision notice of that decision, and notice of any right to have the decision reviewed (either in the Tribunal or some other way, such as internally). The clause is equivalent to section 27A of the AAT Act, with some changes to reflect modern drafting practices and to clarify the provision, including the use of the term 'review pathway'. When this section applies 1526. Subclause (1) provides that this clause applies to all decisions in a 'review pathway', as long as one of those decisions would be a reviewable decision. This means that all decisions in the review pathway must be accompanied by notice of the decisions and the person's review rights. 1527. Subclause (2) limits this so that notice requirements are not applied to decisions of the Tribunal or a court. Notice requirements for these decisions are set out separately (in clauses 111, 112 and 167 of this Bill for Tribunal decisions). 1528. Subclause (3) explains the concept of 'review pathway'. Many administrative decisions can or must be reviewed internally (by the decision-making entity) before proceeding to external review in the Tribunal. Decisions may not become reviewable decisions in the Tribunal until all options for internal review or an initial level of external review have been exhausted. This process of proceeding through stages of internal and external review is the 'review pathway'. The use of this term replaces and clarifies the section-specific definition of 'reviewable decision' in subsection 27A(4) of the AAT Act. 1529. The 'review pathway' is only intended to capture decisions that are determinative of rights or entitlements, and any reviews of such decisions - not decisions that are merely pre-conditions or steps that must be taken before a determinative decision can be made. 220

General rules 1530. Subclause (4) stipulates that the decision-maker must take reasonable steps to provide notice of the decision to any person whose interests are affected by the decision. A 'person whose interests are affected' may include organisations and associations. Subclause (4) reflects the fundamental principle of administrative law that people should be made aware of decisions that affect their rights or entitlements, and of their right to challenge a decision if they are unhappy with the outcome. 1531. Subclause (5) stipulates that the notice must include notice of any right of review the person has. For a reviewable decision, this will be the right to apply to the Tribunal for review of the decision. For other decisions, the right to have the decision reviewed will depend on arrangements for internal or other external review specific to the decision-making scheme. Example 1532. Person A works in an industry that requires holding a licence. They apply for a licence from the Licensing Agency and are refused (decision 1). On internal review, the Licensing Agency affirms the original decision (decision 2). Under section 123 of the Licensing Act 1900, a person can apply to the Tribunal for review of a licence refusal decision once it has been reviewed internally, making it a reviewable decision under this Bill. Under clause 266 of the Bill, the Licensing Agency must provide notice of the decision and review rights to Person A for both the original decision (decision 1) and the affirmation of the original decision (decision 2). Exceptions 1533. Subclause (6) provides exceptions to the requirement that the decision-maker provide notice. Broadly, these exceptions are where notice is otherwise already required; the decision is a deemed decision; or certain limited categories of decision. 1534. Paragraph (6)(a) provides that a decision-maker does not have to give notice under subsection (4) if another Act or instrument requires notice to be given. A large number of Commonwealth Acts and instruments already require decision-makers to provide notice of a decision and of a person's review rights in relation to that decision, whether to the Tribunal or otherwise. Some of these provisions provide tailored or specific requirements, such as by specifying the persons to be notified or requiring notice to be in writing or to be provided by making it publicly available. These provisions are set out in other Acts or instruments which provide for the decision, alongside the powers under which such decisions are made (see, for example, section 14ZY of the Taxation Administration Act 1953). It is not the intention of this Bill to duplicate notification obligations, but instead to provide a general rule for decision-makers to take reasonable steps to provide notice. This paragraph is equivalent to paragraph 27A(2)(b) of the AAT Act, with minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 1535. Paragraph (6)(b) provides that the decision-maker does not have to give notice under subsection (4) if the decision is taken to have been made under clause 16, or under section 10 of the Ombudsman Act. As discussed in Part 4, clause 16 provides that a failure of a decision-maker to do an act or thing within a quantified timeframe is deemed to be a decision. In situations where the decision-maker has not made a decision, but there is no quantified timeframe, section 10 of the Ombudsman Act 221

allows the Commonwealth Ombudsman to declare a decision has been made. Decisions deemed under these provisions are reviewable by the Tribunal, but notice of these decisions is not required because no decision has been actively made. This paragraph is equivalent to paragraph 27A(2)(a) of the AAT Act, with minor updates to reflect modern drafting practices, and the additional reference to section 10 of the Ombudsman Act. These do not affect the operation or effect of the provision. 1536. Paragraph (6)(c) provides the decision-maker does not have to give notice under subsection (4) if the decision does not adversely affect the interests of any other person and is: • a decision not to impose a liability, penalty or limitation on a person • a decision adjusting periodic payments to multiple members of a class of persons, or • a decision determining a person to receive the most favourable monetary entitlement within categories of entitlements established by an Act or instrument. 1537. This subclause is equivalent to paragraph 27A(2)(c) of the AAT Act, with minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Effect of failure to comply 1538. Subclause (7) stipulates that a decision remains valid even if decision-maker fails to give notice as required under this clause. This subclause is equivalent to subsection 27A(3) of the AAT Act, with minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 267: Decision-maker must have regard to rules when giving notice of decision 1539. As with clause 266 above, this clause applies to all decisions in the review pathway, as long as one of those decisions would be a reviewable decision (subclause (1)). Subclause (2) limits this so that the notice requirements do not apply to decisions of the Tribunal or a court. General rule 1540. Subclause (3) provides that in giving notice of a decision, the decision-maker must have regard to any requirements prescribed by the rules. The rules will be used to set out best practice considerations for giving notice, including the content of those notices. It is anticipated that these rules will be based on the Code of Practice for Notification of Reviewable Decisions and Rights of Review made under subsection 27B(1) of the AAT Act, which sets out detailed criteria about the content of decision notices and requires decision-makers to publish decision notices in certain circumstances. 1541. A decision-maker will still satisfy the requirement to have regard to the prescribed rules where the decision-maker considers the rules and decides that the rules are not appropriate to adopt for certain notices. For example, it may be that the level of detail set out in the prescribed rules is inappropriate for particular cohorts as it would make such notices overly complex or that particular information is considered irrelevant to a cohort. 1542. Subclause (4) provides that subsection (3) does not apply where a decision-maker has had regard to the requirements in the rules in giving notice of a decision of the same 222

kind. This means that it would be sufficient for a decision-maker to have regard to the rules once for a class of decision and update relevant decision notice templates or otherwise establish processes for such notices in an efficient way. A decision-maker should not need to have regard to the prescribed rules each and every time a decision is made and a standard notice is issued. This ensures that best practice considerations are taken into account, while managing resourcing for decision-making agencies. 1543. Subclause (5) provides that the requirement to have regard to the matters prescribed in the rules applies for all decisions, regardless of whether they are required to give notice through clause 266 of this Bill or through requirements set out in other Acts and instruments (and are therefore exempt from clause 266 because of paragraph (6)(a) of that clause). This is a substantial departure from existing section 27B of the AAT Act. It is intended to encourage the widespread adoption of best practices in administrative decision-making, improving the quality and consistency of such notices across the Commonwealth. Effect of failure to comply 1544. Subclause (6) stipulates that a decision remains valid even if the decision-maker fails to have regard to matters prescribed by the rules when giving the applicable notice required under this clause. Division 3--Decision-makers to give reasons for decisions 1545. This Division enables a person affected by a decision that can be reviewed by the Tribunal to request a statement of reasons from the decision-maker. A statement of reasons is defined in clause 4 as including the findings, evidence and reasons for a decision. The Division reflects the fundamental principle of administrative law that individuals should be able to understand decisions made about them. It provides the process for requesting reasons for a decision, circumstances under which a decision-maker must provide reasons and exceptions to this requirement. 1546. Clauses 268 to 272 are equivalent to section 28 of the AAT Act, with minor updates to reflect modern drafting practices, and some substantive changes to better protect personal and sensitive information. Clause 268: Requesting reasons for reviewable decision from decision-maker 1547. This clause provides the process for a person to request a statement of reasons for a reviewable decision from a decision-maker. The request must be made in writing and by a person whose interests are affected by the reviewable decision. This clause is equivalent to subsection 28(1) of the AAT Act, updated to reflect modern drafting practices. These do not affect the operation or effect of the provision. 1548. There are several notes that provide context to this clause. Note 1 refers readers to clause 12 to determine which decisions are reviewable decisions. Note 2 refers readers to clause 15 to determine when an organisation's or association's interests are taken to be affected by a decision, and can therefore request a statement of reasons from a decision-maker under this clause. Note 3 highlights the definition of statement of reasons. The note on subclause (2) alerts readers that a decision-maker may refuse the request if it is made outside the timeframes specified in subclause 269(8). 223

Clause 269: Decision-maker to give statement of reasons 1549. This clause provides when and how a decision-maker must provide a statement of reasons for a decision. 1550. Subclauses (1) and (2) provide that if a person requests a statement of reasons under clause 268, the decision-maker must provide the statement within 28 days after receiving the request. This is equivalent to subsection 28(1) of the AAT Act. 1551. Subclause (3) allows the decision-maker to remove personal information from a statement of reasons before providing it. Any person whose interests are affected by a decision, including organisations or associations (see clause 15), may request a statement of reasons under clause 268. Subclause (3) recognises that there may be circumstances where the statement of reasons contains personal information about someone other than the person making the request. 1552. Subclause (4) allows the decision-maker to remove from the statement information specified in a public interest certificate under clause 272 before providing it. This is equivalent to paragraph 28(3)(a) of the AAT Act, with minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 1553. Under subclause (5), a decision-maker must notify the person who requested the statement of reasons of any such removals and the reasons for them. This is equivalent to subparagraph 28(3A)(a)(i) of the AAT Act in relation to the removal of information covered by a public interest certificate. This been expanded to also cover the removal of personal information. 1554. Subclauses (4), (5) and (6) ensure an appropriate balance between the right for a person to understand the reasons for a decision made about them, with the need to protect personal and sensitive information. Exception--person is not affected 1555. Subclause (6) provides that a decision-maker must not provide a statement of reasons for a decision to a person whose interests are not affected by the decision. 1556. This subclause is equivalent to subsection 28(1AA) of the AAT Act, with minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Exception--person has already been given reasons 1557. Subclause (7) provides that a decision-maker does not have to provide a statement of reasons to a person if the person has already been given a statement of reasons for the decision. This could have been provided in the document setting out the decision or in a separate document. Under subclause (11), discussed below, the decision-maker does not need to give notice of a refusal to give a statement of reasons on this basis. 1558. This subclause is equivalent to subsection 28(4) of the AAT Act, with minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Exception--timeframes 1559. Subclause (8) provides time limits within which a person must make a request for a statement of reasons. If a decision was given to the person in writing, this time limit is 28 days after the document setting out the decision was given to the person. If the 224

decision is not set out in a document, the time limit is a reasonable time after the decision is made. 1560. This subclause is equivalent to subsection 28(1A) of the AAT Act, with minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Exception--would disclose information that concerns another person 1561. Subclause (9) provides that the decision-maker may refuse to give a statement of reasons if it would disclose information that concerns another person, and it is not reasonably practicable to remove that information. This ensures that personal information is adequately protected. Exception--public interest certificate 1562. Subclause (10) provides that the decision-maker may refuse to give a statement of reasons if it would disclose information specified in a public interest certificate, and to remove that information would mean that statement was false or misleading. This is a necessary aspect of the public interest certificate regime and ensures that information is appropriately protected. This subclause is equivalent to paragraph 28(3)(b) of the AAT Act, with minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Decision-maker must explain refusal to give statement of reasons 1563. Subclauses (11) and (12) require a decision-maker to give notice and explain the reason for their refusal to provide a statement of reasons to a person. The written notice of a refusal must be provided within 28 days of receiving the request. 1564. A decision-maker does not have to give notice if the reason for refusal is because the person has already received a statement of reasons, although it is open to the decision- maker to do so. This ensures that decision-makers are not obligated to expend additional resources once they have already provided a statement of reason. Clause 270: Applying to Tribunal to obtain reasons for a reviewable decision 1565. This clause provides that a person who has requested a statement of reasons from a decision-maker under clause 268, but not received one, may apply to the Tribunal for a decision about whether the decision-maker should give the person the statement. This clause is equivalent to subsections 28(1AC) and (1B) of the AAT Act, with minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. When this section applies 1566. Subclause (1) provides that this section applies both when the person is given notice that the request for the statement has been refused, and when the decision-maker has failed to provide a response to the request within the 28-day timeframe. This is because a failure to provide a response is equivalent to a refusal, in that the person has not received a statement of reasons for the decision. 1567. The effect of this subclause is that the person must first request reasons from decision- maker directly under clause 268 before applying to the Tribunal under this clause. 225

Tribunal may require decision-maker to give statement of reasons 1568. Subclause (2) provides that a person may apply to the Tribunal where a decision-maker has not provided a statement of reasons. Under subclause (3), the Tribunal must decide whether or not the decision-maker should provide the statement of reasons. 1569. Subclause (4) provides that if the Tribunal decides the statement should be provided, the decision-maker must provide it within 28 days after being notified of the Tribunal's decision. Example 1570. Person A receives support from Support Agency. Their new support plan reduces the amount received and they seek an internal review of this decision. The original decision is affirmed on internal review and Person A receives a notice of the decision and their review rights, but not a statement of reasons. Person A requests a statement of reasons from the decision-maker under clause 268. The decision-maker refuses, claiming the notice it gave was a statement of reasons and they are not required to provide one because of subclause 269(7). Person A may now apply to the Tribunal under clause 270 for a decision about whether the decision-maker should give them a statement of reasons. Clause 271: Applying to Tribunal to obtain an adequate statement of reasons 1571. This clause deals with when a decision-maker has given a person a statement of reasons under clause 269 or 270, but the person considers the statement does not contain adequate information. It is equivalent to subsections 28(5) and (6) of the AAT Act, with minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. When this section applies 1572. Subclause (1) provides that this process only applies to a statement given under clause 269 because of a request under clause 268, or because of a Tribunal order under clause 270. It does not apply to statements of reasons provided by the decision-maker in the absence of a request or order under this Division. This reflects that if a person has not received a statement of reasons for a decision, or considers the statement is inadequate, they should first raise the issue with the decision-maker directly by making a request under clause 268. 1573. This clause does not allow applicants to gather additional information about the decision, but simply provides a mechanism of redress where a statement of reasons is inadequate. If the person applies to the Tribunal for review of the decision, the Tribunal also has the power under clause 24 to order the decision-maker to give a statement containing further information. Tribunal may require a decision-maker to give adequate information 1574. Subclause (2) allows a person to make an application to the Tribunal if the statement of reasons did not contain adequate information about the findings, evidence or reasons for the decision. Subclause (3) then requires the Tribunal to decide whether the statement contained adequate information. 1575. If the Tribunal decides that the statement of reasons did not contain adequate information, subclause (4) requires the decision-maker to provide an additional 226

statement to the person which contains adequate information on matters that were lacking in the original statement. This must be provided within 28 days after the decision-maker receiving notice of the Tribunal's decision. Example 1576. Person A works in an industry that requires holding a licence. They apply for a licence from the Licensing Agency, which is refused. Person A requests a statement of reasons for the decision under clause 268. The Licensing Agency refuses under clause 269(6), saying that Person A's interests are not affected by the decision. Person A applies to the Tribunal under clause 270 and the Tribunal decides that the Licensing Agency should give Person A a statement of reasons, because their interests were clearly affected by the decision. When Person A receives the statement of reasons, the statement explains that they are ineligible for a licence, since they are not qualified. Person A knows that they hold the relevant qualifications for the licence under the Licensing Act 1900. Person A applies to the Tribunal under clause 271. The Tribunal refuses to make an order, as the problem with the statement is not that is does not contain adequate information, but that it contains what Person A considers to be an error. Under these circumstances, Person A should apply for review of the decision under Division 3 of Part 3. Clause 272: Public interest certificate in relation to statement of reasons 1577. This clause provides that a public interest certificate may be issued in relation to a statement of reasons, where disclosure of specified information would be contrary to the public interest. This is in addition to the public interest certificate regime provided by Division 7 of Part 4. 1578. Subclause (1) provides that the Attorney-General may certify in writing that the disclosure of certain information through a statement of reasons would be contrary to the public interest. This is equivalent to subsections 28(2) and (3A) of the AAT Act, with minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. 1579. If a statement of reasons would contain information covered by a public interest certificate, the decision-maker may redact the information, or refuse to give the statement of reasons under subclauses 269(4) and (10). 1580. Subclauses (2) and (3) provide that, where a decision about a statement of reasons or the reviewable decision is taken to the Tribunal, and the matter has a public interest certificate on it under subclause (1), the Attorney-General is deemed to have issued a public interest certificate over that matter in the Tribunal. These subclauses ensure that a certificate issued under subclause (1) is transferred into a certificate issued under subclause 91(1) if the matter is reviewed in the Tribunal. This ensures that the sensitive information is protected throughout the life of the matter. 1581. Subclause (4) is included to assist readers and clarify that a certificate under this clause is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act (which means that it does not have to be registered or published). 227

PART 11--MISCELLANEOUS 1582. This Part outlines various arrangements necessary for the Tribunal to fulfil its objective in an efficient, effective manner. It includes provisions relating to confidentiality, delegations and authorisations, and the power to make rules and regulations. Division 1--Simplified outline Clause 273: Simplified outline of this Part 1583. This clause provides a simplified outline of this Part. 1584. The simplified outline assists readers to understand the substantive provisions of this Part. The outline is not intended to be comprehensive. It is intended that readers should rely on the substantive provisions of the Bill. Division 2--Confidentiality 1585. This Division recognises that, in the course of performing their functions and duties, members, staff and others working for the Tribunal will be entrusted with information (including sensitive, confidential and/or personal information). This Division provides protections for that information, including restrictions on disclosure to certain entities and an offence for unauthorised disclosure. It applies broadly to 'entrusted persons', defined to include any person who is or has been a Tribunal member, the Principal Registrar, a Tribunal staff member, or a person engaged to provide services to the Tribunal. Clause 274: Protected information and documents 1586. This clause provides that an entrusted person must not be required to produce or disclose, to specific entities, a document or information that concerns another person and that was obtained by the entrusted person in the course of their Tribunal duties. Those entities are a court, tribunal, authority or person with the power to require the production of documents or the answering of questions (subclause (1)). This would include Royal Commissions or other investigatory bodies with coercive powers. It does not include a parliament. 1587. The clause protects information given to the Tribunal from compulsory production or disclosure other than where this relates to the Tribunal's functions. It promotes disclosure to the Tribunal of all relevant information by providing reassurance to persons involved in Tribunal proceedings that documents and information concerning them will be protected. 1588. Subclause (2) specifies that an entrusted person may be required to produce or disclose protected documents or information where this is necessary for the purpose of this Bill or another Act conferring power on the Tribunal. 1589. Subclauses (3) and (4) define 'protected document' and 'protected information' as a document or information that concerns another person, and was obtained by the entrusted person in the performance or exercise of the entrusted person's functions or powers under the Bill, another Act or an instrument made under another Act. This definition is intentionally broad and would apply to all legal persons. 228

1590. This clause is equivalent to subsection 66(1) of the AAT Act, with minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision. Clause 275: Evidence about Tribunal proceedings 1591. This clause provides that an entrusted person must not be required to give evidence to specific entities about Tribunal proceedings. Those entities are the same as the entities in clause 274. 1592. The clause protects information obtained by entrusted persons from being disclosed by prohibiting an entrusted person from being required to give evidence in a similar way to clause 274. The provision is also consistent with the protection and immunity conferred on Tribunal members, registrars and staff under subclause 293(1). Tribunal members, registrars staff and persons engaged under clause 90 to conduct dispute resolution processes cannot be compelled to give evidence in relation to the performance of their duties within the scope of the immunity. 1593. This clause is equivalent to subsection 66(3) of the AAT Act, with one substantive change extending the provision from Tribunal members to the category of 'entrusted persons' which also includes Tribunal staff, the Principal Registrar, and persons engaged to provide services to the Tribunal. This recognises that anyone in that category will be entrusted with information in connection with their work at the Tribunal, and a consistent level of protection ought to apply. Clause 276: Unauthorised disclosure of information 1594. This clause makes it an offence for an entrusted person to make a record of, or disclose, information that they obtained either because they hold the position of an entrusted person, or during the course of their work as an entrusted person (subclause (1)). However, subclause (2) provides that it is not an offence to record or disclose the information with authorisation (see clause 277). 1595. This approach clarifies the secrecy obligations on Tribunal members and staff by placing the offence on the face of the legislation. By contrast, section 66 of the AAT Act imposed a general non-disclosure duty on entrusted persons, which was enforced through section 122.4 of the Criminal Code, while section 66A of the AAT Act extended confidentiality provisions in other Acts to AAT members and staff. This approach made it difficult for Tribunal members and staff to understand their obligations. 1596. This offence is important to ensure that those working in the Tribunal do not use or disclose information they obtain in the course of their duties without authorisation. It provides entrusted persons with certainty and clarity about their obligations. It promotes open disclosure to the Tribunal by providing reassurance to persons involved in Tribunal proceedings that information disclosed will be appropriately protected. It also more broadly promotes accountability, and public trust and confidence in the Tribunal. 1597. This clause is distinct from the offence in clause 119 for breach of a non-publication or non-disclosure order. Clause 119 has a lower penalty and applies to parties in a proceeding and other persons (such as a witness or journalist). Clause 276 is directed specifically at entrusted persons, who can reasonably be expected to comply with a stricter standard for non-disclosure. 229

1598. The offence would consist of the following physical elements: • the person is or was an entrusted person • the person (whether directly or indirectly and whether while being, or after ceasing to be, an entrusted person) either - makes a record of information, or - discloses information, and • the person obtained the information either: - because of the person being an entrusted person, or - in the course of carrying out the person's duties as an entrusted person. 1599. The fault element for the physical elements would be determined in accordance with section 5.6 of the Criminal Code: • for the conduct of making a record or disclosure - intention is the fault element • for the circumstance that the person was or is an entrusted person - recklessness is the fault element • for the circumstance that the person acquired the information as an entrusted person - recklessness is the fault element. 1600. Proof of intention or knowledge would also satisfy the fault elements for the first and third physical elements (see subsection 5.4(4) of the Criminal Code). A person would generally know that they were or had been an entrusted person, for the purposes of the first element of the offence - as the definition of entrusted person is limited to persons who are or have been a Tribunal member, the Principal Registrar, a Tribunal staff member, or a person engaged to provide services to the Tribunal. Similarly, a person would generally know whether they acquired particular information as an entrusted person - effectively, whether they acquired particular information at work. 1601. This offence would apply to a person who obtained information because of their status as an entrusted person, and would not require proof that harm had, or could have, occurred if the information was disclosed. This is appropriate, as: • the offences would apply to a limited number of entrusted persons who occupy positions of public trust and responsibility • the unauthorised disclosure of information from the Tribunal could reasonably be expected to cause a range of harms, and • it would not be possible to limit the scope of the offence to particular categories of information, without leaving certain, significant categories of harms unprotected. 1602. The entrusted persons subject to the offence - members, the Principal Registrar, staff and persons engaged to provide services to the Tribunal - hold positions of significant public trust, given the Tribunal's role of reviewing administrative decisions. They may be able to exercise significant powers with offences attached to noncompliance, including the power to issue a summons and to compel persons to answer questions (see clauses 116 and 117). This offence communicates to the persons subject to it the importance of careful handling of the information they may access and/or gather in the course of Tribunal proceedings. 1603. Given the sensitive information the Tribunal often handles - including details about a person's disability, migration status, income and finances, child support obligations, and social security supports - the unauthorised disclosure of information from 230

entrusted persons could result in direct harms. Such harms might include prejudicing the review proceedings, damaging a person's reputation and mental health, or compromising the identity of Tribunal parties or witnesses. 1604. To effectively fulfil its function of reviewing government decisions, the Tribunal is required to have a high level of public confidence and trust. Any perception that its members and staff do not safeguard information in their possession, even where that information may not be inherently sensitive, is likely to undermine that trust and confidence. 1605. It would not be possible to limit the scope of the offence to apply to only particular categories of information, or to information the disclosure of which would cause particular categories of harm - such as information the disclosure of which would be likely to prejudice a particular application. Such a limitation would risk allowing the disclosure of information that would result in a wider range of harms such as those outlined above. 1606. The Bill provides multiple avenues for information about proceedings, activities and operations of the Tribunal more broadly to be made public, including: • requirements to publish Tribunal decisions that involve significant conclusions of law, have significant implications for Commonwealth policy or administration or are decisions of the guidance and appeals panel (subclause 113(2)), as well as a discretion to public other decisions (subclause 113(1)) • the ability for an applicant to publish the Tribunal's findings in certain proceedings in the Intelligence and Security jurisdictional area (clause 169) • requirements to publish Tribunal practice directions (subclause 36(7)), the member code of conduct (subclause 201(4)), and the member performance standard (subclause 202(4)) • requirements for the President to provide a yearly report for the Tribunal (clause 242), and • the Council's function of monitoring and reporting on the integrity and operation of the administrative law system (including avenues for review) (clause 249), and its requirement to publish an annual report (clause 264). 1607. The Tribunal would also be subject to other information-handling frameworks, including the FOI Act and the Privacy Act. 1608. In light of all of the above, it is appropriate to require that entrusted persons record or disclose information only in an authorised manner. 1609. The maximum penalty for this offence is two years' imprisonment. This penalty is appropriate given the harm that may flow from an unauthorised disclosure, and is consistent with the current offence in section 122.4 of the Criminal Code. 1610. This offence will not apply if recording or disclosing information is authorised by clause 277, for example where the person records or discloses the information for the purposes of performing a function or exercising a power under this Bill, another Act or an instrument made under an Act. Clause 277: Authorisations to record or disclose information 1611. This clause authorises entrusted persons to record or disclose information in appropriate circumstances, for example in the course of their duties. In authorising the 231

use and disclosure of information, this clause operates as an exception to the offence in clause 276 that requires an entrusted person to keep information confidential. The circumstances in which an entrusted person may make a record or disclose information without committing an offence under clause 276 include: • where the recording or disclosure of information is done for purposes connected with the entrusted person performing or exercising their functions or powers under this Bill, another Act or an instrument made under an Act (subclause (1)) • where the disclosure is required or authorised under this Bill, another Act or an instrument made under an Act (subclause (2)) • where the entrusted person reasonably believes that disclosure is necessary to lessen or prevent a serious threat to the life, health or physical safety of any individual, or to public health or safety (subclause (3)) • where the information has already been lawfully made available to the public (subclause (4)) • where they are required to disclose information or produce a document to a court, tribunal, authority or person (including the parliament) that has the power to require them to do so (subclause (5)). However, they cannot do this if, under clause 274, they are exempted from having to provide protected information or documents to the relevant entity (subclause (6)). 1612. In all circumstances above, the defendant bears an evidential burden (see subsection 13.3(3) of the Criminal Code). This is appropriate because the matters in clause 277 are particularly within the knowledge of the defendant, for example, the purpose for which they recorded or disclosed the information. To rely on the defence, the person will only need to adduce or point to evidence suggesting a reasonable possibility that the information was recorded or disclosed for purposes connected with the exercise of the powers, or the performance of the functions, of that person under this Bill. If the person does so, and in order for the offence to apply, the prosecution will then need to discharge its legal burden to negate that possibility beyond reasonable doubt for the offence to apply. Division 3--Delegation 1613. To ensure that the Tribunal can function efficiently and effectively, this Division allows powers conferred personally on the Minister, the President and Principal Registrar under this Bill to be delegated where appropriate. When a person is exercising a delegated power, they are doing so in their own right. Clause 278: Delegation by Minister 1614. This clause allows the Minister to delegate their functions or powers under the Bill to the Secretary of the Department or the President of the Tribunal. The delegation must be in writing (subclause (1)). 1615. However, subclause (2) provides that the Minister cannot delegate their power to make rules under the Bill (clause 295) as it is only appropriate for the Minister to perform this function. 1616. Subclause (3) stipulates that the Secretary of the Department must comply with any written directions the Minister provides when performing or exercising a function or power delegated under this clause. This subclause is included because, if there is not 232

an express power included in legislation, a person who delegates a power cannot direct the delegate in the exercise of the power. It is appropriate to include this in the legislation as it ensures that the functions or powers delegated to the Secretary are exercised properly and with the guidance of the Minister. 1617. This clause largely replicates the effect of subsections 10A(1) and (4) of the AAT Act, with added detail for clarity. It also expands the delegation power so that the Minister can also delegate powers to the Secretary, rather than only to the President. This is because it may be appropriate for some powers to be exercised by the Secretary rather than by the President. For example, it may be more appropriate for certain administrative functions and powers in relation to the appointment of members, such as the establishment of assessment panels, to be delegated to the Secretary, rather than the President. Clause 279: Delegation by President 1618. This clause provides, as a general rule, that the President may delegate their functions or powers under this Bill (or another Act or instrument) to a member, the Principal Registrar, a registrar or staff member (subclause (1)). This largely replicates section 10A of the AAT Act, however the operation of this provision is expanded, noting that section 10A only provides for delegation of a power by the President to members of the Tribunal. 1619. The ability for the President to delegate functions or powers to a broad range of people (including staff of the Tribunal) is appropriate because it is important that the Tribunal can operate efficiently. Stakeholders have noted that constraints on the ability for powers and functions to be delegated within the AAT can cause inefficiency and delay in proceedings. The ability for the President to delegate powers more broadly is necessary to ensure that the Tribunal can resolve matters without unnecessary delay. It also acknowledges that the President is assisted in managing the administrative affairs of the Tribunal by the Principal Registrar (see clause 226). In this regard, it may be appropriate for the President to delegate some powers to the Principal Registrar, rather than a member. 1620. Subclause (2) specifies certain powers and functions that must not be delegated by the President. This exception recognises that there are some powers or functions that it would only be appropriate for the President to exercise or perform, including: • powers and functions the President has as a member of the Tribunal constituted for the purposes of a proceeding (note that the President could authorise another member to exercise powers in a proceeding in this circumstance in accordance with paragraph 281(1)(c)) • powers and functions the President has because they are a member of the Council • powers and functions the President is authorised to use under clause 281 (because these are powers of the Tribunal, rather than personal powers of the President), or • powers and functions explicitly listed in Table 9 below. These are decisions of significance that are appropriate for the President to exercise personally. 233

Table 9--Functions and powers the President must not delegate Item Provision Summary of topic of provision 1 Clause 14 decision-maker - the President can specify who the decision-maker is for a decision 2 Division 3 of Part 4 practice directions - the President can make practice directions 3 Subclause 109(2) Tribunal guidance decisions - the President can exclude decisions made by the guidance and appeals panel from being guidance decisions 4 Division 5 of Part 7 referring questions of law - the President must agree to the referral of a question of law to the FCA by the Tribunal 5 Clause 196 jurisdictional areas and lists - the President can establish or abolish a list within a jurisdictional area 6 Clause 197 jurisdictional area leaders - the Minister must consult with the President in relation to the assignment of a jurisdictional area leader and the President can recommend to the Minister to vary or revoke an assignment of a jurisdictional area leader 7 Clause 199 assignment of members to jurisdictional areas - the President can assign a member to one or more jurisdictional area, and vary or revoke an assignment. 8 Clause 200 President may give directions to non-judicial members relating to the performance of their duties 9 Clause 201 code of conduct - the President must determine a code of conduct 10 Clause 202 performance standard - the President must determine a performance standard 11 Clause 203(3) President may restrict member's duties - the President may temporarily restrict a member's duties while dealing with a matter relating to their conduct 12 clause 222 President must notify Minister if they reasonably believe there are grounds for termination of a member's appointment 13 Subdivision B of appointment and functions of Principal Registrar - including Division 4 of Part 8 agreeing to the appointment of the Principal Registrar or appointing a person to act as the Principal Registrar. 234

1621. Subclause (3) provides that in performing or exercising a function or power delegated under this section, the delegate must comply with any written direction of the President. This subclause is included noting that unless there is an express power included in legislation, a person who delegates a power cannot direct the delegate in the exercise of the power. It is appropriate to include this in the legislation as it ensures that functions or powers delegated to Tribunal members, the Principal Registrar, registrars or other staff members are exercised properly and with the guidance of the President. Noting that the delegation power is broad, it also provides an additional safeguard in relation to the exercise of powers delegated by the President. Subclause (3) also replicates subsection 10A(4) of the AAT Act. Clause 280: Delegation by Principal Registrar 1622. This clause provides, as a general rule, that the Principal Registrar may delegate their functions or powers under this Bill (or another Act or instrument) to a registrar or staff member (subclause (1)). 1623. However, subclause (2) provides that the Principal Registrar cannot delegate a power or function that they have because they are authorised to perform or exercise it under clause 283. This is because, under clause 283, the Principal Registrar is authorised to perform a function or exercise a power of the Tribunal. These are not personal powers or functions and should not be delegated. 1624. It is appropriate for the Principal Registrar to be able to delegate to a broad range of people because it is important that the Tribunal can operate efficiently. Subsection 10A(3) of the AAT Act provides that the Registrar can delegate powers to officers of the Tribunal and staff members. This provision retains those arrangements to retain efficiency in the Tribunal by enabling the Principal Registrar to delegate their powers as they see fit. 1625. Subclause (3) provides that the delegate must perform or exercise a function or power in accordance with any written directions given by the Principal Registrar. This subclause is included noting that unless there is an express power included in legislation, a person who delegates a power cannot direct the delegate in the exercise of the power. It is appropriate to include this in the legislation as it ensures that powers delegated to registrars and other staff members are exercised properly and with the guidance of the Principal Registrar. Noting that the delegation power is broad, it also provides a safeguard. Subclause (3) also replicates subsection 10A(4) of the AAT Act. Division 4--Performing and exercising functions and powers of Tribunal 1626. This Division prescribes the way powers and functions can be exercised or performed by members and staff within the Tribunal. It relates to powers and functions conferred on the Tribunal, rather than a person. In this regard, these powers and functions cannot be delegated and are instead exercised or performed by the Tribunal as constituted for the purposes of a proceeding or by authorised persons. 1627. This Division presents a significant improvement to the authorisation arrangements in the AAT Act. First, it centrally locates all authorisation provisions in one Division of the Bill. 235

1628. Second, it broadens the range of powers and functions that can be exercised and performed by staff appointed as registrars. This is intended to increase flexibility and efficiency within the Tribunal by allowing a broader range of people with appropriate qualifications and experience to exercise and perform some of the Tribunal's powers. The Bill will enable members to focus on conducting hearings, making decisions and undertaking other tasks that require more complex analysis or a significant exercise of discretion. Giving the President the power to authorise registrars to undertake a wider range of tasks, including exercising additional case management and procedural powers, contributes to the Tribunal's efficiency. 1629. This Division also consolidates a number of categories of persons in the AAT, including officers of the Tribunal (section 24PA, AAT Act), authorised officers (section 59B, AAT Act) and authorised members (section 59A, AAT Act), into a single category of 'authorised person'. Who can be authorised to perform or exercise functions or powers of the Tribunal 1630. The authorisation tables in this Division set out who may exercise and perform the powers and functions of the Tribunal at various stages in a proceeding. In other words, when the Bill confers a power or function on 'the Tribunal', this Division provides who may exercise or perform it. The authorisations recognise that once the Tribunal is constituted, the member or members constituted to the proceeding will generally have control over how that proceeding is conducted. However, the Tribunal as constituted may need to draw on other members, registrars and other staff to resolve a matter as efficiently as possible. Additionally, the Division sets out who may exercise and perform the powers and functions of the Tribunal before the start of a hearing of a matter, when the Tribunal may not yet have been constituted, or the member or members constituted to the proceeding may not have taken active carriage of it. 1631. This Division provides for authorised persons, including members, registrars and other staff members, to be authorised to perform functions or exercise powers of the Tribunal. The Bill does not automatically authorise persons to perform these functions or exercise these powers. There must also be a valid authorisation in place. 1632. The Bill increases the powers and functions which registrars may be empowered to exercise and perform. This will result in a more efficient use of Tribunal resources and ensure that members have greater capacity to hear and finalise matters. This will assist the Tribunal to meet its objective of providing a mechanism of review that is, among other things, quick (see paragraph 9(b)). As a safeguard, registrars must be appointed by the Principal Registrar and hold certain qualifications or experience (see clause 237). 1633. The authorisations are organised so that the powers and functions that a person can exercise or perform steadily increase in accordance with the person's level of seniority. 1634. Some powers which do not require an exercise of discretion and are purely administrative in nature could be exercised by staff of the Tribunal generally, if they are authorised to do so under this Division. 1635. Powers and functions which are more complex in nature, such as those requiring some exercise of discretion, could be performed by registrars. For example, registrars should be able to hold directions hearings, issue directions and exercise some powers 236

to finalise a matter such as dismissal powers in certain circumstances, or make a decision where the parties have consented. This will assist to avoid delays in matters progressing and being finalised. Registrars may also be authorised to exercise or perform any powers or functions that staff members may be authorised to exercise or perform. 1636. In addition to conducting substantive hearings, powers which require a greater degree of analysis and significant exercise of discretion should only be exercisable by members. These include any functions relating to making the decision on review (other than a consent decision). Members may also be authorised to exercise or perform any powers or functions that registrars or staff members may be authorised to exercise or perform. When can a person perform or exercise functions or powers of the Tribunal 1637. Tribunal functions and powers would be performed or exercised by a broader group of people (any member, some registrars and other staff) at the pre-hearing stage. This allows for efficient triaging and management of matters in the early stages of a proceeding. It is noted that Tribunal powers are still exercisable by a broader group of people (any member, some registrars and other staff) between when the Tribunal is constituted for the proceeding and when the hearing commences, despite the fact that specific member/s have already been assigned to the matter. This is because it would be inefficient to limit the exercise of powers to only the member/s constituted to the matter for the continued management of the matter up until hearing. 1638. Once the hearing of a matter has commenced, the exercise of Tribunal powers should be limited to those specific member/s assigned to the matter or a member, registrar or other staff member approved by those specific member/s to exercise a power or perform a function in relation to the proceeding. This is because it is appropriate to allow specific members to manage their own matters once the hearing has commenced. It also ensures the independence of the Tribunal in performing its decision-making functions. This is summarised in Table 10 below. 237

Table 10--When persons can exercise powers and perform functions of the Tribunal Authorised Functions/powers Conditions on Conditions on person exercise of power - exercise of power - before the hearing after the hearing commences commences Tribunal as All functions or powers of Any power may be Any power may be constituted the Tribunal exercised exercised President All functions and powers Any power may be Only if constituted for of the Tribunal exercised the purposes of the proceeding Principal Functions and powers If an authorisation is If an authorisation is Registrar listed in clauses 283 in place in place and with the (Principal Registrar approval of powers), 285 (registrar the Tribunal as powers) and 286 (staff constituted powers) Members Functions and powers If an authorisation is If an authorisation is listed in clauses 284 in place in place and with the (member powers), 285 approval of and 286 the Tribunal as constituted Registrars Functions and powers If an authorisation is If an authorisation is listed in clauses 285 and in place in place and with the 286 approval of the Tribunal as constituted Staff Functions and powers At any time, if an If an authorisation is listed in clause 286 authorisation is in in place and with the place approval of the Tribunal as constituted Subdivision A--Performance and exercise of functions and powers Clause 281: Who may perform or exercise functions or powers 1639. This clause sets out who may exercise a power or function of the Tribunal in relation to a proceeding. The persons who can exercise or perform these powers and functions will change depending on the stage that the proceeding has reached (see above). 238

1640. This clause represents a substantial change to the existing provisions in the AAT Act (sections 24PA, 59A and 59B, and subsections 19B(2) and (3)). It reflects the new authorisation arrangements in the Tribunal which are intended to increase flexibility and efficiency. 1641. Paragraph (1)(a) provides that the Tribunal as constituted may exercise powers or perform functions conferred on the Tribunal at any time during the proceeding. This paragraph replicates the effect of paragraph (b) of the definition of Tribunal in subsection 3(1) of the AAT Act. It reflects that the Tribunal as constituted has full discretion over the conduct of a proceeding, subject to the requirements of any practice directions. 1642. Paragraph (1)(a) also has effect such that any power that is not included in clauses 283-286 can only be exercised by the Tribunal as constituted after the start of the hearing in the proceeding. This is appropriate in relation to powers such as making a decision on review of a reviewable decision under clause 105 (subject to the exception discussed below in clauses 284 and 285) and giving an advisory opinion under clause 288. 1643. Paragraph (1)(b) provides that the President or an authorised person may exercise powers or perform functions conferred on the Tribunal before the start of the hearing of the proceeding. This refers to the substantive hearing, as hearing of the proceeding is defined to exclude directions hearings (see clause 4). Clauses 283-286 set out who may be authorised to exercise particular powers or perform particular functions. Depending on the power or function in question, an authorised person could be the Principal Registrar, a member, a registrar, or a staff member. The current AAT Act provides for staff to be appointed as officers of the Tribunal, and officers of the Tribunal can then be appointed as authorised officers. However, the powers and functions that they can perform or exercise are more limited. In the AAT, officers of the Tribunal can give notice of an application to extend the time for making an application for review of a decision to persons considered to be affected by the decision, notify persons whose interests may be affected of applications for review, conduct a dispute resolution process, issue a summons and undertake a taxing of costs. In addition to the powers that officers of the Tribunal can exercise, authorised officers in the AAT can give directions, grant leave to inspect documents produced under summons and dismiss an application in the Social Services and Child Support Division that is not reviewable by the AAT. 1644. Paragraph (1)(c) provides that after the start of the hearing of the proceeding, an authorised person may exercise the powers or perform the functions of the Tribunal but only as approved to do so by the Tribunal as constituted. For example, if a registrar is authorised to issue summonses, and the substantive hearing of the proceeding has commenced, the registrar must have the approval of the Tribunal as constituted to issue the summons. 1645. Paragraphs (1)(d) and (1)(e) provide specific authorisations additional to the general rules set out in paragraphs (1)(a), (b) and (c). These relate to when it may not be appropriate or necessary for a power to be exercised by the Tribunal as constituted after the hearing of a proceeding commences. The powers and functions in paragraphs (1)(d) and (e) occur after the Tribunal has made its decision or dismissed a proceeding. 239

1646. Paragraph (1)(d) provides that the power to correct errors in a decision can be exercised by an authorised person, but only in circumstances where the Tribunal as constituted is not available and as approved by the President. This recognises that it is most appropriate for the Tribunal as constituted to correct errors in its own decision but there may be some circumstances where the Tribunal as constituted is not available, including to give approval for another person to exercise the power, for example because a member's appointment has expired, or because they are on leave. The correction of errors in decisions is limited to obvious errors in the text (see clause 114). It is not possible for the Tribunal to alter the substance of its decision once it has been made. 1647. Paragraph (1)(e) provides that the reinstatement of an application that has been dismissed (see clause 102) and the taxing of costs (see subclause 115(2)) can be performed by an authorised person at any time. This is because, if the Tribunal as constituted dismissed the application, it may not be best placed to consider whether the dismissal was in error. The provision also replicates the effect of section 69A of the AAT Act which provides that an officer of the Tribunal can exercise the power to tax costs. This is an administrative function that can be performed by an authorised officer, and is not required to be performed by the Tribunal as constituted. 1648. Nothing in paragraph (1)(d) or (e) prevents the Tribunal as constituted or an authorised officer as approved by the Tribunal from exercising the powers or performing the functions listed in those provisions, as per the authorisations in paragraphs (1)(a), (b) and (c). 1649. Subclause (2) clarifies that the paragraphs in subclause (1) prescribing who may exercise and perform powers and functions do not limit each other. This means that they operate alongside each other. For example, paragraph (1)(a) (that the Tribunal as constituted can exercise powers for the purposes of a proceeding) is not limited by paragraph (1)(b) such that after constitution but before the start of the hearing, powers can only be exercised by the President or an authorised person. That is, the Tribunal as constituted can still exercise the powers of the Tribunal during that stage of a proceeding. Similarly, and as discussed above, the exception in paragraph (1)(e) does not prevent the Tribunal as constituted from exercising those powers. This provision is included for the avoidance of doubt. 1650. Subclause (3) clarifies that an approval under paragraph (1)(c) and subparagraph (1)(d)(i) is not required to be in writing. This approval process is intended to be informal and should not generate administrative burden for the Tribunal. Clause 282: How functions or powers must be performed or exercised 1651. This clause provides that when an authorised person is performing or exercising Tribunal powers or functions, they must comply with any direction given by the President (subclause (1)). As discussed above in relation to directions from delegates, a person who authorises another person to perform or exercise functions or powers cannot direct the person in the performance or exercise of those functions or powers unless the legislation expressly provides for them to do so. It is appropriate that the President should be able to direct a person in the performance or exercise of Tribunal functions and powers. This also provides a safeguard, noting that some functions or powers can be performed or exercised by non-members, including registrars and staff. 240

1652. Subclause (2) is included to assist readers and clarify that a direction by the President is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act (which means that it does not have to be registered or published). 1653. Subclause (3) clarifies that when a person (either the President or an authorised person) is exercising a Tribunal power or performing a function that depends on the Tribunal's opinion, belief or state of mind, they may in fact rely on their own opinion, belief or state of mind. This reflects that the Tribunal as an institution cannot itself have a state of mind, and that the authorised person is exercising the power or performing the function in their own right. 1654. This clause represents a substantial change to the existing provisions in the AAT Act (sections 24P, 24PA, 59A and 59B). It reflects the new authorisation arrangements in the Tribunal which are intended to increase flexibility and efficiency. Subdivision B--Authorisations to perform and exercise functions and powers of Tribunal 1655. This subdivision sets out the powers and functions that each category of authorised person (Principal Registrar, member, registrar and staff member) can be authorised to exercise or perform. If a power or function is not explicitly listed in this Subdivision, it cannot be exercised by an authorised person. 1656. Where the Bill provides that the President may authorise members, registrars and staff members to perform certain functions or exercise certain powers, it does not require that these authorisations must be made. The President may elect not to authorise any persons to undertake powers or functions under these provisions, or may elect only to authorise members, registrars or staff at particular levels. For example, the President may choose to confine an authorisation to members who are Deputy Presidents, or to registrars who hold Executive Level 2 positions. Clause 283: Authorisations for Principal Registrar 1657. This clause prescribes the functions and powers that the President may authorise the Principal Registrar to perform or exercise. The authorisation must be in writing. This is intended to ensure transparency and that the power is exercised correctly. 1658. Paragraph (a) provides that the President can authorise the Principal Registrar to exercise Tribunal powers if it is a power or function that a registrar or staff member could be authorised to undertake (under clause 285 and 286 respectively). Those clauses include tables with specific lists of powers and functions the relevant authorised officer can be authorised to exercise or perform. It is appropriate that the Principal Registrar, as a senior statutory office holder, can be authorised to exercise or perform all the powers and functions that could be exercised or performed by registrars and staff members. This supports the efficient operation of the Tribunal. 1659. Paragraph (b) provides that the President can also authorise the Principal Registrar to exercise or perform any Tribunal powers or functions that are prescribed in the rules. This provides for flexibility as the Tribunal gains operational experience. For example, if it becomes apparent that it is appropriate for the Principal Registrar to exercise additional powers or if new powers or functions are inserted into the Bill by future amending legislation, the rules can enable those powers or functions to be appropriately authorised to be exercised or performed by the Principal Registrar. 241

1660. This clause represents a departure from existing provisions in the AAT Act (sections 24P, 24PA and 59B). It reflects the new authorisation arrangements in the Tribunal which are intended to increase flexibility and efficiency. It is appropriate to ensure that people are performing functions and exercising powers that align with their role, skills and experience. It also addresses stakeholder feedback regarding the need to improve the efficiency of the Tribunal by allowing registrars to exercise and perform a broader range of the powers and functions of the Tribunal. Clause 284: Authorisations for members 1661. This clause prescribes the functions and powers that the President can authorise Tribunal members to perform or exercise. The authorisation must be in writing. This is intended to ensure transparency and that the power is exercised correctly. 1662. Members may exercise any power or perform any function of the Tribunal if they are constituted to a proceeding (see paragraph 281(1)(a)). This clause sets out where the President can authorise a member who is not constituted to a proceeding to exercise and perform powers and functions in relation to that proceeding. This supports the efficient operation of the Tribunal. 1663. Paragraph (1)(a) provides that the President may authorise a member to exercise or perform the powers or functions of the Tribunal if it is a power or function that a registrar or staff member could be authorised to exercise or perform (under clause 285 or 286 respectively). As decision-makers within the Tribunal, it is appropriate that members can be authorised to exercise or perform all the powers and functions that could be exercised or performed by other Tribunal staff such as registrars and general staff members. 1664. Paragraph (1)(b) provides that the President can also authorise a member to exercise or perform any Tribunal powers or functions that are prescribed in the rules. This provides for flexibility as the Tribunal gains operational experience. For example, if it becomes apparent that it is appropriate for members to exercise additional powers or if new powers or functions are inserted into the Bill or other Acts or instruments by future amending legislation, the rules can enable those powers or functions to be appropriately authorised to be exercised or performed by members. 1665. Paragraph (1)(c) provides that members can be authorised to perform any functions or exercise any powers that are listed in Table 11 below. These are in addition to the powers and functions that they can be authorised to exercise or perform under paragraphs (1)(a) and (b). 242

Table 11--Authorisations for members Item Provision Summary of topic of provision 1 Part 3 starting a review 2 Division 5 of Part 4 Tribunal procedure 3 Clause 69 hearings to be in public unless practice directions or Tribunal order requires otherwise 4 Clause 70 Tribunal may restrict publication or disclosure of information 5 Clause 76 taking evidence on oath or affirmation 6 Clause 78 inspection of documents produced under summons 7 Subdivision B of management of proceedings Division 6 of Part 4 8 Subdivision A of withdrawing and dismissing applications Division 8 of Part 4 9 Clause 105 Tribunal decision on review of reviewable decision 10 Clause 107 when Tribunal's decision on review comes into operation 11 Division 10 of after proceeding ends Part 4 12 Clause 127 Tribunal decision continues to operate unless Tribunal orders otherwise 13 Part 6 (other than proceedings in Intelligence and Security jurisdictional area clauses 161 and 164) 14 Division 5 of Part 7 referring questions of law (note: under subclause 185(1), President must agree to the referral) 1666. Subclause (2) prescribes certain powers and functions which a member can only be authorised to use if they are making a decision agreed to by the parties (under clause 103). Those powers or functions are: • exercising the powers of the original decision-maker (under clause 54) • affirming or varying the reviewable decision, setting aside that decision and either substituting a new decision or remitting the matter to the original decision-maker (under clause 105) • specifying when the Tribunal's decision comes into operation (under clause 107) 243

• giving the parties notice of the decision, including a statement of reasons and notice of any relevant review rights (under clause 111), and • making a security clearance decision (under clause 163). 1667. This is because, other than when the power is exercised under clause 103, these powers should only be exercised by the Tribunal as constituted as they relate to the making of the decision on the review of a reviewable decision (see clause 105). Exercise of these powers would generally follow the Tribunal conducting a hearing, considering the material before it and arriving at its decision on the review. When making a decision under clause 103, however, the Tribunal must have received the terms of the decision as agreed between the parties in writing and must be satisfied that the decision is within the power of the Tribunal to make. It is not necessary to conduct a hearing to make a decision under clause 103. 1668. Procedurally, however, clause 103 requires the Tribunal to make a decision on the review (subclause (2)). That is, to affirm, vary, set aside and substitute or set aside and remit the decision of the decision-maker. As such, the exercise of the power under clause 103 requires, or may require, an exercise of the powers or functions in clauses 54, 105, 107, 111 or 163. Although these powers and functions should generally only be exercised or performed by the Tribunal as constituted, it is appropriate, and efficient, for authorised persons to exercise them in accordance with clause 281 where the decision is as agreed by the parties. If the hearing of the proceeding has commenced, the authorised person would require the approval of the Tribunal as constituted to make the decision. 1669. This clause represents a departure from existing provisions in the AAT Act (subsections 19B(2) and (3) and 59A). It reflects the new authorisation arrangements in the Tribunal which are intended to increase flexibility and efficiency. It is appropriate that members should be authorised to perform or exercise the functions or powers of the Tribunal broadly, as this is within their roles and functions defined in clauses 194 and 195. Clause 285: Authorisations for registrars 1670. This clause prescribes the functions and powers that the President can authorise registrars to perform or exercise to support the efficient operation of the Tribunal. The authorisation must be in writing. This is intended to ensure transparency and that the power is exercised correctly. 1671. Paragraph (1)(a) provides that President may authorise a registrar to exercise or perform the powers or functions of the Tribunal if it is a power or function that a staff member could be authorised to exercise or perform (under clause 286). 1672. Paragraph (1)(b) provides that the President can authorise a registrar to exercise or perform any Tribunal powers or functions that are prescribed in the rules. This provides for flexibility as the Tribunal gains operational experience. For example, if it becomes apparent that it is appropriate for registrars to exercise or perform additional powers or functions or if new powers or functions are inserted into the Bill by future amending legislation, the rules can enable those powers or functions to be appropriately authorised to be exercised or performed by registrars. 1673. Paragraph (1)(c) provides that the President can authorise a registrar to exercise or perform Tribunal powers or functions that are listed in Table 12 below. This is in 244

addition to the powers and functions that they can be authorised to exercise or perform under paragraphs (1)(a) and (b). Table 12--Authorisations for registrars Item Provision Summary of topic of provision 1 Division 3 of Part 3 applying for review of decision 2 Subdivision A of parties to proceeding Division 4 of Part 3 3 Clause 24 decision-maker must give Tribunal additional statement if Tribunal requires--general rule 4 Clause 26 decision-maker must give Tribunal additional documents on request--general rule 5 Clause 28 (other Exceptions--Tribunal may adjust requirements than subclause (8)) 6 Clause 31 decision cannot be altered outside Tribunal process 7 Clause 54 Tribunal can exercise powers of decision-maker 8 Clause 65 certain parties may seek to withdraw from being a party 9 Subclause 66(2) representation before Tribunal 10 Subclause 68(2) Tribunal may appoint interpreter and (3) 11 Clause 73 how a party may appear at a Tribunal case event 12 Clause 74 Tribunal may summon person to give evidence or produce documents 13 Subclause 78(1) inspection of documents produced under summons 14 Subdivision B of management of proceedings Division 6 of Part 4 15 Subdivision C of dispute resolution processes Division 6 of Part 4 16 Clause 96 Tribunal may dismiss application if parties consent 17 Clause 97 Tribunal must dismiss application if decision is not reviewable decision 245

18 Clause 98 Tribunal may dismiss application if fee is not paid 19 Clause 100 Tribunal may dismiss application if applicant fails to comply with order etc. 20 Subdivision B of decisions agreed by parties Division 8 of Part 4 21 Clause 105 Tribunal decision on review of reviewable decision 22 Clause 107 when Tribunal's decision on review comes into operation 23 Clause 111 notice of decision and statement of reasons--review of reviewable decision 24 Clause 112 notice of decision and statement of reasons--other proceedings 25 Clause 115 taxing costs 26 Clause 166 making and recording findings 27 Clause 167 communicating decisions 28 Clause 168 findings relating to procedures or practices of agency 29 Division 3 of decision-makers to give reasons for decisions Part 10 1674. Subclause (2) prescribes how some functions or powers can be performed or exercised by a registrar. 1675. Paragraph (2)(a) provides that, after a hearing starts, a registrar must not perform or exercise a function or power related to: • determining whether a person can become a party to the proceeding (under paragraph 22(1)(c)), or • removing a party from the proceeding, if they fail to appear at a case event (under clause 83). 1676. This is because the exercise of these powers has a direct impact on the conduct of the proceeding and is appropriately exercised by the Tribunal as constituted. 1677. Paragraph (2)(b) prescribes certain powers and functions which a registrar can only use if they are making a decision agreed to by the parties (under clause 103). Those powers or functions are: • exercising the powers and discretions of the original decision-maker (under clause 54) 246

• affirming or varying the reviewable decision, setting aside that decision and either substituting a new decision, or remitting the matter to the original decision-maker (under clause 105) • specifying when a decision of the Tribunal comes into operation (under clause 107), or • giving the parties notice or the decision, including a statement of reasons and notice of any relevant review rights (under clause 111). 1678. This is because, other than when the power is exercised under clause 103, these powers should only be exercised by the Tribunal as constituted as they relate to the making of the decision on the review of a reviewable decision (see clause 105). They would generally follow the Tribunal conducting a hearing, considering the material before it and arriving at its decision on the review. When making a decision under clause 103, however, the Tribunal must have received the terms of the decision as agreed between the parties in writing and must be satisfied that the decision is within the power of the Tribunal to make. It is not necessary to conduct a hearing to make a decision under clause 103. 1679. Procedurally, however, clause 103 requires the Tribunal to make a decision on the review (subclause (2)). That is, to affirm, vary, set aside and substitute or set aside and remit the decision of the decision-maker. As such, the exercise of the power under clause 103 requires, or may require, an exercise of the powers or functions in clauses 54, 105, 107, 111 or 163. Although these powers and functions should generally only be exercised or performed by the Tribunal as constituted, it is appropriate, and efficient, for authorised persons to exercise them in accordance with clause 281 where the decision is as agreed by the parties. If the hearing of the proceeding has commenced, the authorised person will require the approval of the Tribunal as constituted to make the decision. 1680. This clause represents a departure from existing provisions in the AAT Act (subsections 24P, 24PA, and 59B). It reflects the new authorisation arrangements in the Tribunal which are intended to increase flexibility and efficiency. As per clause 237, registrars must have qualifications or experience appropriate for a person who can be authorised to exercise or perform the functions or powers under this clause. The exercise of these powers and performance of these functions is also appropriately safeguarded as registrars must be appointed by the Principal Registrar and then be authorised by the President to exercise or perform specific functions or powers. Clause 286: Authorisations for staff members 1681. This clause prescribes the powers and functions that the President may authorise a staff member of the Tribunal to exercise or perform. The authorisation must be in writing. This is intended to ensure transparency and that the power is exercised correctly. 1682. The powers or functions that the President may authorise a staff member to perform or exercise are specified in paragraphs (a)(i)-(v): • giving written notice of a Tribunal application to the relevant persons (under subclause 21(2)) 247

• notifying parties to a proceeding that another person has successfully applied to become a party, because their interests are affected (under subclause 22(3)) • notifying parties of a Tribunal case event (under clause 72) • notifying parties that another party has sought leave to appeal a Tribunal decision to the guidance and appeals panel (under subclause 126(2)), and • notifying additional persons of an application for a review of an intelligence and security decision (under subclause 139(2)). 1683. Paragraph (b) provides that the President can also authorise a staff member to exercise or perform any Tribunal powers or functions that are prescribed in the rules. This provides for flexibility as the Tribunal gains operational experience. For example, if it becomes apparent that it is appropriate for staff to be authorised to exercise additional powers or if new powers or functions are inserted into the Bill by future amending legislation, the rules can enable those powers or functions to be appropriately exercised or performed by staff. 1684. This clause represents a departure from existing provisions in the AAT Act (subsections 24P and 24PA). It reflects the new authorisation arrangements in the Tribunal which are intended to increase flexibility and efficiency. These powers and functions are appropriate for staff members to exercise or perform because they are administrative in nature and do not require an exercise of discretion. It is appropriate that the staff of the Tribunal operationalise these powers or functions to support the efficient operation of the Tribunal. Clause 287: Authorisations are subject to conditions 1685. This clause specifies that if the President authorises a person to exercise or perform a power or function (using the clauses above), they may apply conditions to the use or exercise of that power. This is to ensure that authorised persons are only authorised in a way that is appropriate and consistent with their skills, experience and position in the Tribunal. For example, a registrar could be authorised to exercise the power to extend the period of time to apply for review under subclause 19(2) but only in circumstances where the application to extend time is not opposed. This is because, if the application is agreed by parties, the nature of the decision-making task differs from where a party opposes the application and the parties needed to be heard in relation to the matter. In these circumstances, it may be more appropriate for a member to exercise the power. 1686. This clause largely replicates subsections 59A(2) and 59B(2) of the AAT, with minor updates to reflect modern drafting practice. Division 5--Other matters Clause 288: Tribunal may give advisory opinion 1687. This clause replicates in intent and operation section 59 of the AAT Act. It provides that the Tribunal can give an advisory opinion where another Act or instrument provides for it to do so. For example, section 10A of the Ombudsman Act provides that where the Ombudsman is investigating the taking of action by a Department or prescribed authority, it may refer a specified question about the taking of the action to the AAT. 248

1688. An advisory opinion is a proceeding within the definition of proceeding in clause 4 of the Bill: see paragraph (e). In this regard, all of the powers of the Tribunal that apply to proceedings generally are available when the Tribunal is conducting this kind of proceeding. Clause 289: Certain things required to be done in writing may be done electronically 1689. This clause clarifies that if a thing needs to be done 'in writing' under certain provisions of the Bill, it can be communicated electronically in a way specified in the practice directions. For example, the practice directions may specify that an application could be made by way of an online form, or by emailing the Tribunal. This aims to increase efficiency for the Tribunal and its users, and ensure the Bill is technology-neutral. The Bill uses the term electronic communication as defined in the ET Act. 1690. This clause is necessary because Division 2 of Part 2 of the ET Act does not apply to the practice and procedure of a court or tribunal. Division 2 of Part 2 of the ET Act relates to requirements under laws of the Commonwealth and provides for things done in writing, things requiring signature, the production of documents and recording or retaining information to be done in electronic form. 1691. Subclause (1) specifies that a person can do the following electronically: • giving notice of certain matters relating to an application for a review of a decision and the provision of statements of reasons and documents relating to a review (under Division 4 of Part 3) • anything in relation to proceedings (for example, make an application to the Tribunal or give written notice to the Tribunal to withdraw an application) (under Part 4) • anything in relation to the guidance and appeals panel (under Part 5) • anything in relation to proceedings in the Intelligence and Security Division (Part 6) • applying to the Tribunal to obtain reasons for a reviewable decision (clause 270) • applying to the Tribunal to obtain adequate statement of reasons (clause 271) • anything in relation to the clauses in this Division (Division 5 of Part 11). 1692. If another Act or instrument requires someone to give information 'in writing' to the Tribunal or a person, they can do so electronically (in a way specified in the practice directions). 1693. Subclause (3) specifies that this clause does not apply if Division 2 of Part 2 of the ET Act applies to a requirement. This is because the ET Act should prevail for any matters to which the ET Act applies. 1694. There is no equivalent provision in the AAT Act. This new clause has been created in recognition that the Tribunal operates in an electronic environment, and technology is constantly changing. It aims to give certainty to the Tribunal and users that doing things electronically still meets the relevant requirements, and does not make those actions invalid. While this is the case under the existing law, the clause is included to provide clarity and avoid doubt. 249

Clause 290: Giving documents 1695. This clause specifies that if a person is required or allowed to give a document or thing to the Tribunal (subclause (1)), or to another person for the purpose of a Tribunal proceeding (subclause (2)), they must follow any requirements in the practice directions and rules. 1696. This clause replicates the effect of section 68 of the AAT Act, with minor updates to reflect modern drafting practices and to refer to rules rather than regulations. Clause 291: Giving documents etc. to decision-maker 1697. This clause specifies that, where the Tribunal or any person is required or permitted to give the original decision-maker a document or thing (related to a decision), they may instead give it to the relevant departmental Secretary (subclause (2)). The 'relevant departmental Secretary' is the Secretary of the Department administered by the Minister who is responsible for the Act or instrument under which the decision in question was made. This ensures the Tribunal has certainty about where a decision can be sent when the decision-maker, that is, the repository of power for the decision under review, no longer exists. For example, because of a machinery of government change. 1698. Subclause (3) specifies that the Tribunal may give documents relating to a decision to a person who holds a particular office, if that office holder is prescribed as the appropriate person to receive documents or things related to the relevant class of decisions. It may be prescribed as the appropriate office holder for receiving such documents by the rules, another Act, or an instrument made under another Act. 1699. The note to this clause clarifies that sections 28A and 29 of the Interpretation Act deal with the manner in which the documents may be given. 1700. This clause replicates section 67A of the AAT Act, with minor updates to reflect modern drafting practices. It does not affect the operation or effect of the provision. Clause 292: Calculation of short periods of time 1701. This clause stipulates how to calculate time periods if something relating to a proceeding must be done in less than seven days. For clarity, if something must be done in seven days or more, this provision does not apply. 1702. This clause provides that if something must be done in under seven days - according to this Bill, another Act or instrument, or a Tribunal order - those seven days should not include any days the Tribunal registry is closed to the public. This would include any weekends, or public holidays, or days on which the relevant registry is closed for any other reason that may fall within the timeframe. 1703. For example, the Tribunal (based in the Melbourne registry) orders on a Tuesday that someone must provide documents within five days. The following Monday is a Victorian public holiday. To calculate when the person must provide those documents, one should count Wednesday (as day one), Thursday (day two), Friday (day three), skip Saturday, Sunday and Monday, then count Tuesday (day four), and Wednesday (day five). The person must therefore provide the document by the end of that Wednesday following the Tribunal order. It also covers situations where a registry may be closed because of an emergency, such as a natural disaster, which is 250

not a public holiday. If the registry were closed in such circumstances, that day or those days would not be counted. 1704. This clause aims to ensure that, when a person or the Tribunal must do something in a short timeframe, they are not unreasonably disadvantaged by any weekends or public holidays et cetera, which could further reduce the relevant timeframe. 1705. This clause largely replicates section 68A of the AAT Act, with minor updates to reflect modern drafting practices. It has also been updated to reflect that the Tribunal is a national institution and may organise its caseload other than by geography as well as the fact that many Tribunal applications and documents relating to proceedings are lodged online. Section 68A of the AAT Act refers to the registry in which the application was made. This clause has been updated to refer to the registry concerned, being the one that is dealing with the application. Clause 293: Protection and immunity 1706. This clause provides protection and immunities to members, certain staff and other persons, representatives and witnesses in Tribunal proceedings. These immunities and protections are critical in ensuring that - while the Tribunal is not a court - it can operate with independence and authority. Tribunal members, the Principal Registrar and other staff 1707. The Tribunal provides independent merits review of decisions and in order to do that properly, persons performing or exercising functions or powers on behalf of the Tribunal must be confident that they can do so without external influences such as fear of personal liability. Subclause (1) provides the same protections and immunities as are afforded a High Court judge for members, staff and certain other persons in the performance of certain duties. The individuals covered by the protection, and the duties the protection applies to are as follows: Table 13--Protections and Immunities Person Receives protections and immunities when performing their duties: Members As members. This immunity extends to any action that a member takes in the course of dealing with applications. This includes orders and decisions that the member makes, conduct during directions hearings, dispute resolution processes or hearings, and the contents of their statements of reasons. 251

Principal Under Part 3 (starting a review), Part 4 (proceedings), Part 5 (guidance and Registrar appeals panel), Part 6 (proceedings in the Intelligence and Security jurisdictional area) or Part 7 (appeals and references of questions of law to the Federal Court). The Principal Registrar is able to exercise powers or perform functions in relation to dealing with applications under these Parts of the Bill, either in their own right, or under a delegation or authorisation. As such, it is appropriate that they are protected from suit when they perform those functions. Authorised As an authorised person, exercising powers and performing functions under person Division 4 of this Part. Person In conducting that dispute resolution process. This immunity is maintained in conducting the same form as section 60(1A) of the AAT Act. It would also cover persons dispute engaged by the Principal Registrar under clause 90 to conduct dispute resolution resolution processes. process under this Bill 1708. This clause represents a change from the protection and immunity provided by section 60 of AAT Act, by expanding the immunities available to the Principal Registrar and Tribunal staff, reflecting the expanded powers that they are able to perform in the Tribunal. 1709. It is important to note that while these individuals are immune from civil suit, they do not operate with impunity in relation to these functions. The performance and conduct management framework (overseen by the President), will ensure that any misconduct by members can be addressed. APS staff (and contractors, depending on their terms of engagement) are subject to performance management under their employment and to the APS Code of Conduct. Representatives and witnesses 1710. Subclause (2) also specifies that a person's representative is entitled to the same protection and immunity as a barrister representing a party in the High Court. The representative could be a legal practitioner, or any other person appearing on behalf of a party in the Tribunal. This replicates the immunity provided by section 60(2) of the AAT Act. 1711. Subclause (3) finally provides that any witness appearing before the Tribunal to give evidence is entitled to the same protection as a witness in High Court proceedings. They are also subject to the same liabilities as a witness in High Court proceedings, in addition to the criminal offences included in this Bill. This replicates the immunity provided by section 60(3) of the AAT Act. 252

Clause 294: Legal or financial assistance 1712. This clause provides that certain people can apply for, and be provided with, legal or financial assistance in relation to Tribunal proceedings. 1713. The clause specifies that the following people may apply to the Attorney-General to receive assistance: • someone who applies, or proposes to apply to the Tribunal for review of a reviewable decision (subclause (1)) • someone who applies, or proposes to apply, to have a Tribunal decision referred to the guidance and appeals panel (subclause (2)) • a party to a Tribunal proceeding (or a person who proposes to become a party to that proceeding) (subclause (3)) • someone who commences (or intends to commence) a court proceeding relating to a Tribunal proceeding (paragraph (4)(a)) • someone who is a party (or proposes to become a party) in a court proceeding relating to a Tribunal proceeding (paragraph (4)(b)). 1714. Subclauses (5) and (6) provide that the rules can prescribe kinds of proceedings to which subclauses (1) and (2) do not apply. 1715. Subclause (7) provides that the Commonwealth Attorney-General can grant a person the above financial or legal assistance if they consider that refusing their assistance application would cause them hardship, and that providing assistance is reasonable in all the circumstances. The decision to grant financial or legal assistance (including the amount granted) is at the discretion of the Attorney-General. 1716. Subclause (8) provides that the Attorney-General can also impose conditions on this grant of assistance. 1717. Assistance that may be available includes disbursement costs, to cover the cost of disbursements such as photocopying, printing, expert reports, counsel opinion and title searches or legal representation costs. Funding is generally not granted if a person can meet their legal costs without incurring serious financial hardship, for costs incurred before an application is made or if a person is receiving, or is eligible to receive, assistance from a legal aid commission. 1718. Subclause (9) clarifies that the time taken applying for assistance, or the Attorney-General refusing or granting assistance, does not extend the timeframe that a person has for applying to the Tribunal for review of a decision. This aims to provide certainty to potential applicants, potential parties and the Tribunal. 1719. Clause 294 largely replicates subsections 69(1)-(2) of the AAT Act, with minor updates to reflect modern drafting practices. It also does not exclude on the face of the legislation particular cohorts from applying for legal or financial assistance but provides that the rules may prescribe kinds of proceedings to which this clause does not apply. 1720. To avoid doubt, subclause (10) provides that 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 purposes of paragraph 32B(1)(a) of the Financial Framework (Supplementary Powers) Act 1997 (FFSP Act). This is to clarify that the 253

inclusion of this provision does not prevent the Commonwealth from authorising expenditure under the FFSP Act. Division 6--Rules and regulations Clause 295: Rules 1721. This clause provides the Bill's rule-making power. It enables the Minister to make rules (by legislative instrument) about anything the Bill requires or permits to be prescribed in rules, or about matters that are necessary or convenient to give effect to the Bill (subclause (1)). In accordance with section 17 of the Legislation Act, the Minister must be satisfied that there has been undertaken any consultation that is considered appropriate by the Minister and reasonably practicable to undertake. This would include consultation with the President, as a person who has expertise in the field relevant to the proposed instrument (paragraph 17(2)(a) of the Legislation Act). To the extent that the rules apply, adopt, incorporate or conflict with any practice directions, close consultation with the President would be particularly important. 1722. However, subclause (2) prohibits the Minister from making rules that create offences or civil penalties; provide powers of arrest, detention, entry, search or seizure; impose taxes; determine amounts to be appropriated from the Consolidated Revenue Fund; or directly amend this Bill. It would be inappropriate to prescribe these types of things in rules, as they require full parliamentary scrutiny. 1723. Subclause (3) stipulates that if any rules are inconsistent with the regulations, the regulations should prevail, and the rules will have no effect to the extent of the inconsistency. However, to the extent that the rules are able to work alongside the regulations, they are taken to be consistent with them. 1724. Subclause (4) permits the rules to incorporate matters outlined in the practice directions - as they were written when in force at a specific time, or as they are in force from time to time. This allows the Minister to apply or adopt matters which are contained in the practice directions in the rules. If the rules adopt or apply a practice direction as made at a point in time, for example, in relation to a specific practice direction as made on a particular date, this would mean that, if the practice direction were superseded, the rules would still operate in relation to those matters until the rules are amended. If the rules adopt or apply the practice directions as in force from time to time, the practice directions would be applied or adopted et cetera as they are in force. That is, if a practice direction is superseded, the rules would automatically adopt or apply the new practice direction. 1725. Subclause (5) provides that subclause (4) has effect despite anything in subsection 14(2) of the Legislation Act. Paragraph 14(1)(b) of the Legislation Act provides that, in relation to any instrument other than an Act, a legislative instrument or the rules of a court, an Act (in this case the Bill) can only enable an instrument (in this case the rules) to apply or adopt the provisions in the other instrument (in this case the practice directions) as in force at a particular time. Subsection 14(2) of the Legislation Act provides for other Acts to provide contrary effect to paragraph 14(1)(b) of the Legislation Act. Subclause 295(4)(b) of the Bill provides this contrary effect so that the Minister could adopt a practice direction as in force from time to time in the rules. 1726. This clause is a new provision, which has been included to ensure the Bill aligns with modern drafting practices and the Legislation Act. 254

Clause 296: Tribunal may charge fees 1727. This clause allows the Tribunal to charge fees in accordance with the rules. Those fees are charged on behalf of the Commonwealth (subclause (1)). 1728. Subclause (2) stipulates that the rules may determine that fees must be paid if a person applies to the Tribunal; if a person makes an application to the President (for example, seeking the President's leave to appeal to the guidance and appeals panel); if the Tribunal undertakes a taxation of costs; in Tribunal proceedings generally such as in relation to production of documents under summons; and for services provided by the Tribunal. 1729. Subclause (3) stipulates that the rules about fees may prescribe things such as the circumstances in which a fee must be paid, who should pay, when payment must be made, and any remittal, refund or waiver of fees that should apply. 1730. Subclause (4) clarifies that rules about fees can: • prescribe fees in respect of a particular class or classes of applications, costs, proceedings or services • stipulate that different fees are payable for different classes of applications, costs, proceedings or services • set a specific amount of fee payable, or set out how to calculate the amount of fee payable • make provision in relation to the whole or a part of a fee • enable the Tribunal to make orders about paying a fee in a proceeding. 1731. Subclause (5) stipulates that fees must not be prescribed in a way that would amount to a tax. This is because it is inherent in the concept of a fee that the liability does not amount to taxation. 1732. Subclause (6) provides that any fee imposed by this clause is a debt owing to the Tribunal (on behalf of the Commonwealth), and can be recovered by the Tribunal (on behalf of the Commonwealth) in a court with jurisdiction to hear the debt recovery matter. 1733. This clause is a new provision, which has been included to ensure the Bill aligns with modern drafting practices. It does not substantively change how fees are set and enforced, except to provide this can be done in rules rather than regulations. Clause 297: Regulations 1734. This clause authorises the Governor-General to make regulations about anything the Bill requires or permits to be prescribed in regulations, or about matters that are necessary or convenient to give effect to the Bill (subclause (1)). Matters which may be dealt with in regulations include: • modifications of the Bill in relation to guidance and appeals panel applications (clause 130) • requirements relating to the assessment process for appointing members to the Tribunal (clauses 205, 207, 208) and the Principal Registrar (clause 227), and • matters relating to assessment panels (clause 209). 255

Regulations making arrangements for Norfolk Island 1735. Subclause (2) provides for the review of decisions made under Norfolk Island enactments by the Tribunal. 1736. Paragraph (2)(a) stipulates that regulations may provide for applications to be made to the Tribunal for the review of decisions made under Norfolk Island enactments. This is equivalent to subsection 25(2) of the AAT Act. 1737. Paragraph (2)(b) allows the regulations to provide such procedural modifications as are needed to allow the Tribunal to review those Norfolk Island decisions in a similar way to equivalent reviewable decisions under this Bill. The AAT Act includes provisions throughout the Act explaining how the provisions apply to the review of decisions under Norfolk Island enactments. This Bill provides for all of those provisions to be clearly set out in one place under the regulations. 1738. A legislative provision that allows subordinate legislation to modify the effect of a primary Act is known as a Henry VIII clause. Such clauses should be used in very limited circumstances. In this case, it is appropriate because it will allow small, technical updates to be made to keep the legislation up to date due to any changes in Norfolk Island enactments. For example, this may include specific arrangements for things like the giving of notices. The approach also promotes legislative accessibility by directing persons seeking review of decisions under Norfolk Island enactments to a single reference point setting out how those reviews will be conducted. It also reflects the approach taken throughout the Bill that any procedures specific to a cohort or a kind of proceedings are contained within other Acts or instruments, to enhance readability of the Bill. The modifications would be in regulations which are disallowable by Parliament and subject to temporal limitations such as automatic sunsetting in accordance with the Legislation Act. They also relate to tightly confined subject matter - that is, only such modifications as are necessary to provide for review of those decisions in like manner to the review of equivalent reviewable decisions under other enactments. 1739. Paragraph (2)(c) provides that the regulations may also provide for the Tribunal to provide an advisory opinion on a matter or question referred to it under a Norfolk Island enactment. 256

[Index] [Search] [Download] [Bill] [Help]