Commonwealth: Administrative Review Tribunal Act 2024 (Cth)

Administrative Review Tribunal Act 2024 No. 40, 2024 Compilation No. 2 Compilation date: 21 February 2025 Includes amendments: Act No. 14, 2025 About this compilation This compilation This is a compilation of the Administrative Review Tribunal Act 2024 that shows the text of the law as amended and in force on 21 February 2025 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Simplified outline of this Act 4 Definitions 5 Other Acts can change how some provisions in this Act apply 6 Extension to external Territories Part 2—Establishment of Administrative Review Tribunal Division 1—Preliminary 7 Simplified outline of this Part Division 2—Establishment of Tribunal 8 Establishment 9 Objective 10 Members of Tribunal Part 3—Starting a review Division 1—Preliminary 11 Simplified outline of this Part Division 2—Key concepts for review of decisions 12 Reviewable decisions 13 Instruments may provide for application to Tribunal for review 14 Decision‑maker 15 Organisation or association whose interests are affected by a decision 16 Decision is taken to be made if timeframe expires Division 3—Applying for review of decision 17 Who can apply 18 When to apply—general rule 19 Exception—Tribunal may extend period 20 Exception—no prescribed period applies Division 4—After an application is made Subdivision A—Parties to proceeding 21 Parties and potential parties to be notified of application 22 Parties to proceeding for review Subdivision B—Provision of reasons and documents 23 Decision‑maker must give Tribunal reasons and documents—general rule 24 Decision‑maker must give Tribunal additional statement if Tribunal requires—general rule 25 Decision‑maker must give Tribunal additional documents within 28 days—general rule 26 Decision‑maker must give Tribunal additional documents on request—general rule 27 Decision‑maker must give copies of reasons and documents to other parties—general rule 28 Exceptions—Tribunal may adjust requirements 29 Exception—while resolving whether to restrict publication or disclosure of information 30 Privilege and public interest Subdivision C—Effect of application for review on decision 31 Decision cannot be altered outside Tribunal process 32 Reviewable decision continues to operate unless Tribunal orders otherwise Part 4—Proceedings Division 1—Preliminary 33 Simplified outline of this Part Division 2—Applications to Tribunal 34 How to apply 35 Applications may be made on behalf of a person Division 3—Practice directions 36 President may make practice directions Division 4—Constitution of Tribunal for a proceeding Subdivision A—Constituting the Tribunal 37 President may constitute Tribunal for purposes of a proceeding 38 President must consult before including Judicial Deputy President Subdivision B—Proceedings generally 39 General rules for constitution of Tribunal Subdivision C—Guidance and appeals panel 40 Exception—President refers application for review that raises issue of significance 41 Exception—President, on appeal, refers Tribunal decision that raises issue of significance 42 Exception—President, on appeal, refers Tribunal decision for material error Subdivision D—Reconstitution 43 Reconstitution—before hearing starts 44 Reconstitution—after hearing starts if member unavailable etc. 45 Reconstitution—involvement in dispute resolution process 46 Reconstitution—after hearing starts for conflict of interest or bias 47 Reconstitution—as guidance and appeals panel after hearing starts 48 After Tribunal is reconstituted Division 5—Tribunal procedure Subdivision A—General principles 49 Tribunal has discretion in relation to procedure 50 Tribunal is to act informally etc. 51 Tribunal to be accessible 52 Tribunal is not bound by rules of evidence 53 Tribunal controls scope of review of decision 54 Tribunal can exercise powers of decision‑maker 55 Right to present case 56 Parties and their representatives to assist Tribunal 57 Sittings of Tribunal 58 Resolving disagreements between Tribunal members Subdivision B—Parties and representation 59 Attorney‑General of the Commonwealth may become a party 60 Decision‑makers may elect not to participate in kind of proceeding or Tribunal case event 61 Decision‑maker who elects not to participate may be a non‑participating party to proceeding or Tribunal case event 62 Tribunal may allow non‑participating party to participate 63 Non‑participating party may give submissions or be required to participate 64 Rules may deal with elections in relation to participation 65 Certain parties may seek to withdraw from being a party 66 Representation before Tribunal 67 Tribunal may appoint litigation supporter 68 Tribunal may appoint interpreter Division 6—Tribunal powers Subdivision A—Hearings and evidence 69 Hearings to be in public unless practice directions or Tribunal order requires otherwise 70 Tribunal may restrict publication or disclosure of information 71 Requirements for Tribunal orders about hearings, publication and disclosure 72 Tribunal must notify parties of Tribunal case event 73 How a party may appear at a Tribunal case event 74 Tribunal may summon person to give evidence or produce documents 75 Tribunal may take evidence 76 Taking evidence on oath or affirmation 77 Payment of witness fees and allowances 78 Inspection of documents produced under summons Subdivision B—Management of proceedings 79 Tribunal may give directions in relation to procedure for proceeding 80 Tribunal may hold directions hearing 81 Tribunal may proceed without absent party 82 Tribunal may adjourn Tribunal case event 83 Tribunal may remove party from proceeding if party fails to appear or does not comply 84 If applicant dies or is bankrupt, wound up or in liquidation or administration 85 Tribunal may remit decision to decision‑maker for reconsideration 86 Tribunal may vary or revoke Tribunal order Subdivision C—Dispute resolution processes 87 Tribunal may refer to dispute resolution process 88 Evidence in dispute resolution process not admissible elsewhere 89 Eligibility of person conducting dispute resolution process to sit as a member 90 Engagement of persons to conduct dispute resolution processes Division 7—Public interest certificates and interventions 91 Disclosure of information—public interest certificate 92 Attorney‑General may intervene for public interest reasons 93 Attorney‑General is party to proceeding 94 Public interest decisions made by Tribunal Division 8—Decision Subdivision A—Withdrawing and dismissing applications 95 Applicant may withdraw application 96 Tribunal may dismiss application if parties consent 97 Tribunal must dismiss application if decision is not reviewable decision 98 Tribunal may dismiss application if fee is not paid 99 Tribunal may dismiss application if applicant does not appear 100 Tribunal may dismiss application if applicant fails to comply with order etc. 101 Tribunal may dismiss application if frivolous, vexatious etc. 102 Reinstatement of application Subdivision B—Decisions agreed by parties 103 If parties reach agreement—review of decisions only Subdivision C—Decision on review of reviewable decision 104 When this Subdivision applies 105 Tribunal decision on review of reviewable decision 106 Circumstances in which Tribunal may reach decision without hearing—review of decisions only 107 When Tribunal's decision on review comes into operation 108 Effect of Tribunal decision to vary or substitute a reviewable decision Division 9—Tribunal guidance decisions 109 Tribunal guidance decisions 110 Tribunal must have regard to Tribunal guidance decisions Division 10—After proceeding ends 111 Notice of decision and statement of reasons—review of reviewable decision 112 Notice of decision and statement of reasons—other proceedings 113 Tribunal may publish decisions 114 Tribunal may correct error in decision or statement of reasons 115 Taxing costs Division 11—Offences 116 Offence—failure to comply with summons 117 Offence—failure to take oath, make affirmation or answer question 118 Offence—giving false or misleading evidence 119 Offence—breach of non‑publication or non‑disclosure order 120 Offence—contempt of Tribunal Part 5—Guidance and appeals panel Division 1—Preliminary 121 Simplified outline of this Part Division 2—President may refer application on own initiative 122 President may refer application for review of decision to guidance and appeals panel Division 3—Party may apply to refer Tribunal decision to guidance and appeals panel Subdivision A—Application for referral to guidance and appeals panel 123 Application may be made to refer certain Tribunal decisions to guidance and appeals panel 124 How to apply 125 When to apply to refer Tribunal decision Subdivision B—After application to refer decision is made 126 Parties to be notified of application 127 Tribunal decision continues to operate unless Tribunal orders otherwise 128 President decides whether to refer Tribunal decision to guidance and appeals panel 129 Notice of President's decision Subdivision C—Review after Tribunal decision is referred to guidance and appeals panel 130 Application for review proceeds if President refers Tribunal decision to guidance and appeals panel 131 Tribunal may have regard to records and documents from earlier proceeding Part 5A—Second review for certain social services decisions Division 1—Preliminary 131A Simplified outline of this Part 131B How this Part applies 131C Meaning of eligible social services decision Division 2—General rules for second review 131D Who can apply 131E Operation of this Act and other laws Division 3—Modifications for second review 131F References to the decision‑maker 131G Giving reasons and documents to Tribunal 131H Who can apply—claimant decisions 131J When to apply 131K Parties to proceeding 131L Limits on applying to become a party to proceeding—claimant decisions 131M Decision cannot be altered outside Tribunal process 131N No automatic election notice for decision‑maker 131P Tribunal may have regard to records and documents from earlier proceeding 131Q Care percentage determinations reviewed under other Acts 131R Date of effect provisions 131S Treating events as having occurred 131T Remitting decisions for reconsideration 131U Legal or financial assistance 131V Operation and implementation of decision on second review 131W Guidance and appeals panel 131X Time and manner for making appeals Part 6—Proceedings in Intelligence and Security jurisdictional area Division 1—Preliminary 132 Simplified outline of this Part 133 How this Part applies 134 Proceedings to be conducted in Intelligence and Security jurisdictional area 135 Operation in relation to decision‑maker 136 Reasons for decisions 137 Meaning of relevant body Division 2—Starting a review Subdivision A—Applications and notice of applications 138 Limits on who can apply for certain reviews 139 Additional persons to be notified of applications for review 140 Applications for decisions to be reviewed again Subdivision B—Information to be provided by agency head 141 Information to be provided by agency head Subdivision C—Provision of security clearance standards 142 When this Subdivision applies 143 Director‑General of Security may provide standards 144 Disclosure of standards Division 3—Proceedings 145 Constitution of Tribunal—general rule 147 Parties to proceedings 148 Certain hearings must be held in private 149 Persons entitled to be present at hearings 150 Relevant bodies may adduce evidence and make submissions 151 Order of evidence and submissions 152 Opportunity for further evidence and submissions 153 Tribunal may invite person to give evidence 154 Certain processes not available 155 Guidance and appeals panel Division 4—Disclosure of information 156 Duty of Tribunal in relation to security and law enforcement information 157 Restricting publication or disclosure of information 158 Security certificates—responsible Minister 159 Sensitive information certificates—Director‑General of Security 160 Protecting identities of persons giving evidence 161 Public interest certificates—responsible Minister 162 Non‑disclosure certificates under other Acts Division 5—Decisions on review Subdivision A—Limits on certain decisions 163 Security clearance decisions Subdivision B—Recording and communicating decisions 165 When this Subdivision applies 166 Making and recording findings 167 Communicating decisions 168 Findings relating to procedures or practices of agency 169 Applicant may publish findings Part 7—Appeals and references of questions of law to Federal Court Division 1—Preliminary 170 Simplified outline of this Part 171 Part applies whether Tribunal's power is conferred by Commonwealth, State or Territory law Division 2—Appeals on questions of law Subdivision A—Appeals on questions of law 172 Party may appeal 173 Decisions about standing 174 Time and manner for making appeals 175 Constitution of Federal Court Subdivision B—Jurisdiction and powers of Federal Court 176 Federal Court has jurisdiction 177 Court may make findings of fact 178 Operation and implementation of Tribunal's decision Division 3—Transfer of appeals to Federal Circuit and Family Court of Australia (Division 2) 179 Transfer of appeals 180 No appeal from decision to transfer 181 Federal Court Rules Division 4—Matters remitted to Tribunal 182 When this Division applies 183 Constitution of Tribunal 184 Tribunal may rely on previous proceedings Division 5—Referring questions of law 185 Referring questions of law Division 6—Sending and disclosing documents 186 When this Division applies 187 Sending documents 188 Returning documents 189 Disclosure contrary to public interest 190 Disclosure of security clearance documents 191 Disclosure to officers of the court Part 8—Members and staff of Tribunal Division 1—Preliminary 192 Simplified outline of this Part Division 2—Members of Tribunal Subdivision A—Members and functions 193 Functions of President 194 Functions of Deputy Presidents 195 Functions of senior and general members Subdivision B—Jurisdictional areas and lists 196 Jurisdictional areas and lists 197 Jurisdictional area leaders 198 Assignment of members to lead lists 199 Assignment of members to jurisdictional areas Subdivision C—Performance and conduct of members 200 President may give directions to members 201 Code of conduct 202 Performance standard 203 President may investigate conduct of members 204 Protection of persons involved in investigating conduct of members etc. Division 3—Member appointment provisions Subdivision A—Appointment of members 205 Appointment of President 206 Appointment of Judicial Deputy Presidents 207 Appointment of Non‑Judicial Deputy Presidents 208 Appointment of senior members and general members 209 Minister must establish assessment panel 210 Appointment of a Judge not to affect tenure etc. 211 Extension of appointment 212 Acting appointments 213 Oath or affirmation of office Subdivision B—Members' terms and conditions 214 Remuneration 215 Leave 216 Other paid work 217 Appearances before Tribunal 218 Disclosure of interests 219 Register of interests 220 Resignation 221 Termination of appointment 222 President must notify Minister about grounds for termination 223 Additional terms and conditions Division 4—Management of Tribunal Subdivision A—Management functions of President 224 Management of administrative affairs of Tribunal Subdivision B—Appointment and functions of Principal Registrar 225 Principal Registrar 226 Functions of Principal Registrar 227 Appointment of Principal Registrar 228 Acting appointments 229 Remuneration 230 Leave 231 Other paid work 232 Disclosure of interests 233 Resignation 234 Termination of appointment 235 Additional terms and conditions Subdivision C—Leadership of Tribunal 236 Tribunal Advisory Committee Division 5—Staff and consultants 237 Appointment of registrars 238 Staff 239 APS employees and others made available 240 Consultants Division 6—Application of finance law and reporting requirements 241 Application of finance law 242 Report by President Division 7—Other matters concerning management 243 Registries 244 Proceedings arising out of management of Tribunal Part 9—Administrative Review Council Division 1—Preliminary 245 Simplified outline of this Part Division 2—Establishment 246 Administrative Review Council 247 Membership of Council 248 Application of finance law Division 3—Council functions etc. 249 Functions and powers of Council 250 Reports by Council 251 Meetings of Council Division 4—Appointment 252 Appointment of certain Council members 253 Appointment of Chair of Council 254 Qualification for appointment 255 Period of appointment 256 Acting appointments 257 Remuneration 258 Leave 259 Disclosure of interests 260 Resignation 261 Termination of appointment 262 Additional terms and conditions Division 5—Staff to assist Council 263 Arrangements relating to staff of the Department Division 6—Annual report 264 Annual report Part 10—Notice and information about administrative decision Division 1—Preliminary 265 Simplified outline of this Part Division 2—Decision‑makers to give notice of decisions 266 Decision‑maker to give notice of decision and review rights 267 Decision‑maker must have regard to rules when giving notice of decision Division 3—Decision‑makers to give reasons for decisions 268 Requesting reasons for reviewable decision from decision‑maker 269 Decision‑maker to give statement of reasons 270 Applying to Tribunal to obtain reasons for reviewable decision 271 Applying to Tribunal to obtain adequate statement of reasons 272 Public interest certificate in relation to statement of reasons Part 11—Miscellaneous Division 1—Preliminary 273 Simplified outline of this Part Division 2—Confidentiality 274 Protected information and documents 275 Evidence about Tribunal proceedings 276 Application of confidentiality provisions in other Acts and instruments Division 3—Delegation 278 Delegation by Minister 279 Delegation by President 280 Delegation by Principal Registrar Division 4—Performing and exercising functions and powers of Tribunal Subdivision A—Performance and exercise of functions and powers 281 Who may perform or exercise functions or powers 282 How functions or powers must be performed or exercised Subdivision B—Authorisations to perform and exercise functions and powers of Tribunal 283 Authorisations for Principal Registrar 284 Authorisations for members 285 Authorisations for registrars 286 Authorisations for staff members 287 Authorisations are subject to conditions Division 5—Other matters 288 Tribunal may give advisory opinion 289 Certain things required to be done in writing may be done electronically 290 Giving documents 291 Giving documents etc. to decision‑maker 292 Calculation of short periods of time 293 Protection and immunity 294 Legal or financial assistance 294A Review of operation of this Act 294B Minister and Commonwealth entities to inform Council of action on systemic issues Division 6—Rules and regulations 295 Rules 296 Tribunal may charge fees 297 Regulations Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to establish an Administrative Review Tribunal and an Administrative Review Council and provide for matters relating to information about administrative decisions, and for related purposes Part 1—Preliminary 1 Short title This Act is the Administrative Review Tribunal Act 2024. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. The whole of this Act A single day to be fixed by Proclamation. 14 October 2024 However, if the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the first day of the first calendar month to start after the end of that period. (F2024N00804) Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Simplified outline of this Act A large number of Acts and legislative instruments allow people to apply to the Administrative Review Tribunal for review of decisions made under them. The Tribunal is established to review these decisions (known as reviewable decisions). The Tribunal has a President, Deputy Presidents, senior members and general members. There is also a Principal Registrar and staff. This Act deals with their appointment, functions and terms and conditions. This Act contains the standard provisions applying to Tribunal processes. Other legislation can include provisions that apply in addition to, or instead of, these standard provisions. Broadly, a Tribunal process for review of a reviewable decision includes the following stages: (a) a person whose interests are affected by a reviewable decision applies to the Tribunal for review; (b) the applicant, the decision‑maker and potentially other persons become parties to the proceeding for the review; (c) the President constitutes the Tribunal for the purposes of the proceeding by deciding which member or members will exercise the Tribunal's powers for the proceeding; (d) the Tribunal conducts the proceeding, including obtaining evidence and holding hearings, directions hearings and dispute resolution processes; (e) the Tribunal makes its decision. Tribunal powers in relation to the proceeding are exercised by the Tribunal constituted for the purposes of the proceeding or, in some circumstances by the President or by members, the Principal Registrar, registrars and staff members authorised by the President. The Tribunal reviews decisions on their merits. It may affirm, vary or set aside a decision‑maker's decision. If the Tribunal sets aside a decision, it may make a substitute decision or remit the matter to the decision‑maker to reconsider as ordered or recommended by the Tribunal. After the Tribunal makes its decision: (a) in some circumstances, a party may apply to refer the matter to the guidance and appeals panel for another review; and (b) a party may appeal to the Federal Court, on a question of law, from the Tribunal's decision. Special rules apply when the Tribunal's powers in relation to a proceeding are exercised in the Intelligence and Security jurisdictional area. This occurs if the proceeding relates to an intelligence and security decision or the President otherwise directs (for example where the President is satisfied national security information would be involved). There are requirements for decision‑makers in relation to giving notice of decisions and review rights and providing statements of reasons. These apply whether or not an application has been made to the Tribunal for review of the decision. This Act also establishes the Administrative Review Council, with functions relating to the Commonwealth administrative law system. The Council consists of the President, the Commonwealth Ombudsman, the Australian Information Commissioner and other members appointed by the Governor‑General. This Act deals with the appointed members' appointment, functions and terms and conditions. 4 Definitions In this Act: accessible, in relation to the Tribunal, means enables persons to apply to the Tribunal and to participate effectively in proceedings in the Tribunal. Note: Examples of areas where arrangements may be made in relation to accessibility include the following: (a) premises, facilities and technology; (b) ease of locating and understanding information about the Tribunal and documents relating to proceedings; (c) adjustments that can reasonably be made to accommodate a person's needs, such as interpreter services for hearings. adduce, in relation to evidence, includes give. administrative affairs, in relation to the Tribunal, has a meaning affected by subsection 224(2). AFP Commissioner means the Commissioner of Police (within the meaning of the Australian Federal Police Act 1979). agency head: (a) in relation to a criminal intelligence assessment, means the Chief Executive Officer of the Australian Crime Commission; or (b) in relation to an exempt security record decision that is a decision of a kind mentioned in subsection 57A(1) of the Freedom of Information Act 1982 in respect of an exempt document (within the meaning of that Act), means the principal officer of the agency, or the Minister, to whom the request for access to the document concerned was made; or (c) in relation to an exempt security record decision that is a decision of the National Archives of Australia, means the Director‑General of the National Archives of Australia; or (d) in relation to a foreign acquisitions and takeovers decision, means the Treasurer; or (f) in relation to a security assessment, means the Director‑General of Security; or (g) in relation to a security clearance decision, means the Director‑General of Security; or (h) in relation to a security clearance suitability assessment, means the Director‑General of Security. agency within the national intelligence community has the same meaning as in the Office of National Intelligence Act 2018. appear, in relation to a Tribunal case event, has a meaning affected by section 73. appointed member means a member of the Council mentioned in paragraph 247(1)(d). ART social services decision: see subsection 131D(3). ASIO means the Australian Security Intelligence Organisation. ASIO Act means the Australian Security Intelligence Organisation Act 1979. ASIO Minister means the Minister administering the ASIO Act. authorised person, in relation to the performance or exercise of a function or power of the Tribunal, means a person authorised under Subdivision B of Division 4 of Part 11 to perform or exercise the function or power. code of conduct means the code of conduct determined under section 201. Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013. corporate and registry services, of the Tribunal: see subsection 226(2). Council means the Administrative Review Council. Council member means any member of the Council including the Chair of the Council. criminal intelligence assessment means an adverse criminal intelligence assessment within the meaning of Division 2A of Part II of the Australian Crime Commission Act 2002. decision includes the following: (a) making, suspending, revoking or refusing to make an order or determination; (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; (d) imposing a condition or restriction; (e) making a declaration, demand or requirement; (f) retaining, or refusing to deliver up, an article; (g) doing or refusing to do any other act or thing. decision‑maker: see section 14. Deputy President means a Judicial Deputy President or a Non‑Judicial Deputy President. dispute resolution process means a procedure or service for the voluntary resolution of disputes, and includes: (a) conferencing; and (b) mediation; and (c) neutral evaluation; and (d) conciliation; and (e) a procedure or service specified in the practice directions; but does not include: (f) arbitration; or (g) court procedures or services. election notice: see subsection 60(1). eligible social services decision: see section 131C. engage in conduct means: (a) do an act; or (b) omit to perform an act. entrusted person means a person who is or has been: (a) a member; or (b) the Principal Registrar; or (c) a staff member; or (d) a person engaged to provide services to the Tribunal. exempt security record decision means: (a) a decision of a kind mentioned in subsection 57A(1) of the Freedom of Information Act 1982 in respect of a document that is an exempt document (within the meaning of that Act) because of section 33 of that Act; or (b) a decision of the National Archives of Australia in respect of access to: (i) a record claimed to be an exempt record under the Archives Act 1983 because it contains information or matter of a kind mentioned in paragraph 33(1)(a) or (b) or subsection 33(4A) or (4C) of that Act; or (ii) a record of ASIO. Federal Court means the Federal Court of Australia. foreign acquisitions and takeovers decision means a decision under section 79A of the Foreign Acquisitions and Takeovers Act 1975 that a national security risk exists in relation to an action. general member means a person appointed as a general member under section 208. guidance and appeals panel: the Tribunal is constituted for the purposes of a proceeding by the guidance and appeals panel if the Tribunal is constituted for the purposes of the proceeding in accordance with Subdivision C of Division 4 of Part 4. guidance and appeals panel application means an application taken to be made under subsection 130(2). guidance and appeals panel proceeding: a proceeding in the Tribunal in relation to an application is a guidance and appeals panel proceeding if: (a) the application is a guidance and appeals panel application; or (b) the President refers the application to the guidance and appeals panel. hearing of a proceeding: the hearing of a proceeding in the Tribunal does not include a directions hearing in relation to the proceeding. intelligence and security decision means: (a) a criminal intelligence assessment; or (b) an exempt security record decision; or (c) a foreign acquisitions and takeovers decision; or (e) a security assessment; or (f) a security clearance decision; or (g) a security clearance suitability assessment. Judge means a Judge of a court created by the Parliament. Judicial Deputy President means a person appointed as a Judicial Deputy President under section 206. jurisdictional area means a jurisdictional area of the Tribunal established by subsection 196(1). jurisdictional area leader: (a) in relation to a jurisdictional area—means a person assigned under subsection 197(1) to be a leader of the jurisdictional area; and (b) in relation to a list—means the jurisdictional area leader of the jurisdictional area within which the list is established. law enforcement interests has the same meaning as in Division 2A of Part II of the Australian Crime Commission Act 2002. legal practitioner means a barrister, a solicitor, a barrister and solicitor or a legal practitioner of the High Court or of the Supreme Court of a State or Territory. list means a list established within a jurisdictional area by the President under subsection 196(2). litigation supporter, in relation to a party to a proceeding, means a person appointed to be a litigation supporter for the party under section 67. made under an Act: an instrument is made under an Act if it is made under a provision of an Act or made under a provision of an instrument that is made under an Act. member means any of the following members of the Tribunal: (a) the President; (b) a Deputy President; (c) a senior member; (d) a general member. merit‑based: an assessment process for an appointment to an office is merit‑based only if: (a) an assessment is made of the comparative suitability of the candidates for the duties of the office, using a competitive selection process; and (b) the assessment is based on the relationship between the candidates' skills, expertise, experience and knowledge and the skills, expertise, experience and knowledge required for the duties of the office; and (c) the assessment takes into account the need for a diversity of skills, expertise, lived experience and knowledge within the Tribunal. national security information has the same meaning as in the National Security Information (Criminal and Civil Proceedings) Act 2004. Non‑Judicial Deputy President means a person appointed as a Non‑Judicial Deputy President under section 207. non‑judicial member means a member who is not a Judge. non‑participating party: see section 61. Norfolk Island enactment means: (a) an enactment (within the meaning of the Norfolk Island Act 1979); or (b) an instrument (including rules, regulations or by‑laws) made under such an enactment; and includes a Norfolk Island enactment as amended by another Norfolk Island enactment. official has the same meaning as in the Public Governance, Performance and Accountability Act 2013. paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise), other than service in the Australian Defence Force. parliament means: (a) a House of the Parliament of the Commonwealth, of a State or of a Territory; or (b) a committee of a House or the Houses of the Parliament of the Commonwealth, of a State or of a Territory. participation notice: see section 62. performance standard means the performance standard determined under section 202. person whose interests are affected by a decision has a meaning affected by section 15. practice directions means practice directions made under section 36. President means the person appointed as the President under section 205. presiding member, in relation to a proceeding, means the member the President directs under subsection 37(2) is to preside for the purposes of the proceeding. Principal Registrar means the person appointed as the Chief Executive Officer and Principal Registrar under section 227. proceeding, in relation to the Tribunal, includes a proceeding in the Tribunal in relation to any of the following: (a) an application for review of a reviewable decision; (b) an application under subsection 270(2) (applying to Tribunal to obtain reasons for reviewable decision); (c) an application under subsection 271(2) (applying to Tribunal to obtain adequate statement of reasons); (d) any other application to the Tribunal under this Act, any other Act or any instrument made under an Act; (e) any matter referred to the Tribunal for inquiry or review under this Act, any other Act or any instrument made under an Act; (f) an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or a matter, mentioned in a preceding paragraph. produce includes permit access to. protected document: see subsection 274(3). protected information: see subsection 274(4). reconstitute the Tribunal, in relation to a proceeding, means revoke the direction made under subsection 37(1) in relation to the proceeding and make another direction under that subsection in relation to the proceeding. registrar means a person appointed as a registrar under section 237. relevant body: see subsection 137(2). responsible Minister, in relation to an intelligence and security decision, means the Minister, or any of the Ministers, administering the provision under which the decision is made. reviewable decision: see section 12. review pathway: see subsection 266(3). rules means the rules made under section 295. salaried member means a member who is appointed on a salaried basis. second review: see subsection 131D(1). security assessment means: (a) an adverse security assessment within the meaning of Part IV of the ASIO Act; or (b) a qualified security assessment within the meaning of Part IV of the ASIO Act. security clearance decision has the same meaning as in the ASIO Act. security clearance suitability assessment has the same meaning as in the ASIO Act. security vetting agency has the same meaning as in Part IVA of the ASIO Act. senior member means a person appointed as a senior member under section 208. serious misconduct includes, but is not limited to, the following: (a) conduct that constitutes unlawful discrimination (within the meaning of the Australian Human Rights Commission Act 1986); (b) serious or repeated bullying or harassment of a person. sessional member means a member who is appointed on a sessional basis. sponsoring agency has the same meaning as in Part IVA of the ASIO Act. staff member means: (a) a member of the staff of the Tribunal; or (b) a person whose services are made available to the Tribunal under section 239. statement of reasons, for a decision, means a written statement in relation to the decision that: (a) sets out the findings on material questions of fact; and (b) refers to the evidence or other material on which the findings are based; and (c) explains the reasons for the decision. State or Territory government entity means: (a) a Department of a State or Territory; or (b) a body (whether incorporated or not) established for a public purpose by or under a law of a State or Territory. Tribunal means the Administrative Review Tribunal established by section 8. Tribunal Advisory Committee means the Tribunal Advisory Committee established by section 236. Tribunal case event, in relation to a proceeding in the Tribunal, means: (a) the hearing, or part of the hearing, of the proceeding; or (b) a directions hearing, or part of a directions hearing, in relation to the proceeding; or (c) a dispute resolution process, or part of a dispute resolution process, under Subdivision C of Division 6 of Part 4 in relation to the proceeding. Tribunal guidance decision: see subsection 109(1). 5 Other Acts can change how some provisions in this Act apply General rules (1) The application of a provision of this Act is subject to a contrary intention in another Act. Note: For example, the Act under which a reviewable decision is made may contain provisions that apply to review of the decision in addition to, or instead of, provisions in this Act. (2) If an Act provides that an instrument made under that Act can contain provisions that apply: (a) in addition to; or (b) instead of; or (c) contrary to; this Act, the application of a provision of this Act is subject to a contrary intention in the instrument. Note: Instruments may contain provisions that apply to review of a reviewable decision in addition to, or instead of, provisions in this Act if that is permitted by the Act under which the instrument is made. Exceptions (3) However, subsections (1) and (2) do not apply in relation to: (a) Part 2 (establishment of Administrative Review Tribunal); or (b) Part 8 (members and staff of Tribunal); or (c) Part 9 (Administrative Review Council). 6 Extension to external Territories This Act extends to the external Territories. Part 2—Establishment of Administrative Review Tribunal Division 1—Preliminary 7 Simplified outline of this Part The Administrative Review Tribunal is established with the objective of providing an independent mechanism of review. The Tribunal consists of the President, Deputy Presidents, senior members and general members. The President and Judicial Deputy Presidents are Judges. For detail relating to appointments and roles, see Divisions 2 and 3 of Part 8. The Tribunal also has a Principal Registrar and staff. For detail regarding management of the Tribunal, see Part 8. Division 2—Establishment of Tribunal 8 Establishment The Administrative Review Tribunal is established by this section. 9 Objective The Tribunal must pursue the objective of providing an independent mechanism of review that: (a) is fair and just; and (b) ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and (c) is accessible and responsive to the diverse needs of parties to proceedings; and (d) improves the transparency and quality of government decision‑making; and (e) promotes public trust and confidence in the Tribunal. 10 Members of Tribunal (1) The Tribunal consists of the following members: (a) the President; (b) Deputy Presidents; (c) senior members; (d) general members. (2) A Judge who is to be appointed as a member must be appointed as the President or as a Judicial Deputy President. Part 3—Starting a review Division 1—Preliminary 11 Simplified outline of this Part A large number of Acts and legislative instruments allow people to apply to the Tribunal for review of decisions made under them. A person whose interests are affected by a reviewable decision may apply to the Tribunal for review of the decision. Timeframes apply to applications, but may be extended in some circumstances. If a person applies for review of a decision, the person and the decision‑maker are parties to the proceeding for the review. Other people whose interests are affected by the decision may apply to the Tribunal to become a party. For the purposes of the review of a decision, the decision‑maker must generally give copies of a statement of reasons for the decision and relevant documents to the Tribunal and the other parties to the proceeding for the review. An application for review of a decision does not affect the operation of the decision unless the Tribunal orders otherwise. This Part contains the standard provisions for these matters. Other legislation can include provisions that apply in addition to, or instead of, these standard provisions. Part 10 contains other provisions assisting persons affected by decisions. These deal with when decision‑makers are required to give notice of decisions and review rights and provide statements of reasons. Division 2—Key concepts for review of decisions 12 Reviewable decisions (1) A decision is a reviewable decision if an Act or a legislative instrument provides for an application to be made to the Tribunal for review of the decision. Note: To find out whether a decision is a reviewable decision, start by looking at the Act or legislative instrument under which the decision is made. (2) In addition, if an Act or a legislative instrument provides for an application to be made to the Tribunal for review of a decision of a person under a power, a decision under the power is a reviewable decision, whether or not it is made by the person. Note: Under subsection (2), the decision is a reviewable decision even if made by a person who is not authorised to make the decision. 13 Instruments may provide for application to Tribunal for review (1) A legislative instrument may provide for an application to be made to the Tribunal for review of a decision made under the instrument. (2) Subsection (1) does not limit any other Act or instrument made under an Act. 14 Decision‑maker General rule (1) The decision‑maker for a decision is the person who makes the decision. Note: For when Tribunal decisions are taken to be made by the decision‑maker, see subsection 108(2). Exception—person ceases to hold office, appointment or position (2) Despite subsection (1), if: (a) a person makes a decision as the holder or occupier of an office, appointment or position; and (b) the person ceases to hold or occupy the office, appointment or position; the decision‑maker for the decision is: (c) the person who holds or occupies the office, appointment or position; or (d) if there is no person who holds or occupies the office, appointment or position—the person specified by the President. Exception—any other circumstance (3) If subsections (1) and (2) do not apply in relation to a decision, the decision‑maker for the decision is the person specified by the President. Specifying a decision‑maker (4) The President must not specify a person under paragraph (2)(d) or subsection (3) unless the President considers that the person is the person most able to satisfy the requirements imposed by this Act on decision‑makers of reviewable decisions. (5) If the President specifies the person in writing, the specification is not a legislative instrument. Extension—unincorporated decision‑maker is treated as if it were a person (6) If a board, committee or other unincorporated body constituted by 2 or more persons is empowered by an Act or an instrument made under an Act to make a decision, this Act applies as if that board, committee or other body were a person empowered to make the decision. Clarification—decisions made by delegates (7) Subject to this Act, if an Act or an instrument made under an Act confers power on a person or body (the authority) to delegate a function or power in relation to a decision, a function or power so delegated, when performed or exercised by the delegate, is, for the purposes of this Act, taken to have been performed or exercised by the authority. 15 Organisation or association whose interests are affected by a decision An organisation or association of persons, whether incorporated or not, is taken to be a person whose interests are affected by a decision if: (a) the decision relates to a matter included in the objects or purposes of the organisation or association at the time the decision is made; and (b) the matter has not been removed from the objects or purposes of the organisation or association. 16 Decision is taken to be made if timeframe expires If: (a) a decision of a person not to do a thing is a reviewable decision; and (b) an Act or an instrument made under an Act provides for a quantified period within which the person is required or permitted to do the thing; and (c) the person does not do the thing within the period; the person is taken, for the purposes of this Act and the Act or instrument that provides for an application to be made to the Tribunal for review of the decision, to have made a decision at the end of the period not to do the thing. Note: If there is no quantified period within which the person is required or permitted to do the thing, see section 10 of the Ombudsman Act 1976. Division 3—Applying for review of decision 17 Who can apply (1) A person whose interests are affected by a reviewable decision may apply to the Tribunal for review of the decision. Note 1: For which decisions are reviewable decisions, see section 12. Note 2: For when an organisation's or association's interests are taken to be affected, see section 15. Note 3: Section 173 provides a right of appeal to the Federal Court if the Tribunal decides that a person's interests are not affected by a reviewable decision. (2) To avoid doubt, a person may apply even if the person is the Commonwealth or an authority, tribunal or other body (whether incorporated or not) that is established by an Act or an instrument made under an Act. 18 When to apply—general rule (1) An application to the Tribunal for review of a decision must be made within the period prescribed by the rules. Note: The legislation under which a reviewable decision is made may specify a different period for applying for review of that type of decision. (2) Subsection (1) is subject to section 19 (exception—Tribunal may extend period). (3) Rules made for the purposes of subsection (1) must not prescribe a period ending before the day that is 28 days after the day the decision is made. (4) Rules made for the purposes of subsection (1) may prescribe different periods for different classes of application. 19 Exception—Tribunal may extend period Application to extend period (1) A person (the applicant) may apply to the Tribunal to extend the period during which the applicant may apply to the Tribunal for review of a decision. (2) The Tribunal may, by order, extend the period if the Tribunal considers that it is reasonable in all the circumstances to do so. (3) The Tribunal may extend the period even if it has expired. Exception—where reinstatement is available or has been refused (4) The Tribunal must not extend the period if: (a) section 102 permits the applicant to apply to the Tribunal to reinstate an application by the applicant for review of the decision; or (b) the Tribunal refuses an application by the applicant under section 102 to reinstate an application for review of the decision. Notice to affected persons may be required (5) The Tribunal may: (a) give notice of the application to extend the period (the extension application); or (b) require the applicant to give notice of the extension application; to any other person the Tribunal considers is affected by the extension application. Affected persons may oppose extension application (6) A person notified under subsection (5) may notify the Tribunal within 14 days that the person wishes to oppose the extension application. (7) If a person notifies the Tribunal under subsection (6), the Tribunal must not extend the period unless the Tribunal has given the applicant and any person who notified the Tribunal under subsection (6) a reasonable opportunity to adduce evidence and make submissions to the Tribunal in relation to the extension. 20 Exception—no prescribed period applies (1) If: (a) an application for review of a decision is made to the Tribunal; and (b) the application is not required by law to be made within any particular period; and (c) the Tribunal considers that the application was not made within a reasonable time after the making of the decision; the Tribunal must dismiss the application. (2) However, subsection (1) does not apply if the Tribunal considers that there are special circumstances that justify the Tribunal reviewing the decision. (3) In considering the matter in paragraph (1)(c): (a) the Tribunal must have regard to the following: (i) the time at which the applicant became aware of the making of the decision; (ii) if the application would have been required by law to be made within a particular period if the application had been made by someone other than the applicant—that period; and (b) the Tribunal may have regard to any other matters that it considers relevant. Division 4—After an application is made Subdivision A—Parties to proceeding 21 Parties and potential parties to be notified of application (1) This section applies if an application is made to the Tribunal for review of a decision. (2) The Tribunal must give written notice of the application to: (a) the applicant; and (b) the decision‑maker; and (c) any other person who is made a party to the proceeding for the review by an Act or an instrument made under an Act. (3) If the Tribunal considers that another person's interests may be affected by the decision, the Tribunal may: (a) give to the person; or (b) require the applicant to give to the person; written notice of the application and the person's right to apply to become a party to the proceeding for the review. 22 Parties to proceeding for review Parties to proceeding (1) Each of the following are parties to a proceeding for review by the Tribunal of a decision: (a) the applicant for the review; (b) the decision‑maker; (c) any other person, if: (i) the person applies to the Tribunal to become a party to the proceeding; and (ii) the Tribunal is satisfied that the person's interests are affected by the decision; and (iii) the Tribunal considers it appropriate that the person become a party to the proceeding. Note: In addition, the Attorney‑General of the Commonwealth or of a State or Territory is a party to a proceeding in certain circumstances (see sections 59 and 93). (2) This section is subject to sections 65 (certain parties may seek to withdraw from being a party) and 83 (Tribunal may remove party from proceeding if party fails to appear or does not comply). Notice to other parties (3) If a person becomes a party to a proceeding under paragraph (1)(c), the Tribunal must give written notice to the other parties to the proceeding. Subdivision B—Provision of reasons and documents 23 Decision‑maker must give Tribunal reasons and documents—general rule Within 28 days after the Tribunal notifies the decision‑maker for a decision of an application for review of the decision, the decision‑maker must give the Tribunal: (a) a statement of reasons for the decision; and (b) a copy of every other document that is: (i) in the possession or under the control of the decision‑maker; and (ii) relevant to the Tribunal's review of the decision. Note: A decision‑maker may, but is not required to, give the Tribunal the same statement of reasons given to an applicant (whether under section 269 or 270 or otherwise). 24 Decision‑maker must give Tribunal additional statement if Tribunal requires—general rule (1) This section applies if a decision‑maker for a decision has given the Tribunal a statement of reasons for the decision under section 23. (2) The Tribunal may order the decision‑maker to give the Tribunal, within the period specified in the order, a statement containing further information in relation to any one or more of the following: (a) findings on material questions of fact in relation to the decision; (b) evidence or other material on which the findings were based; (c) reasons for the decision. 25 Decision‑maker must give Tribunal additional documents within 28 days—general rule If: (a) at any time during the Tribunal's review of a decision, a document that is relevant to the review comes into the possession or under the control of the decision‑maker; and (b) the document has not been given to the Tribunal for the purposes of the review; the decision‑maker must give a copy of the document to the Tribunal within 28 days after the day on which the document came into the possession or under the control of the decision‑maker, or within a longer period specified in the practice directions. 26 Decision‑maker must give Tribunal additional documents on request—general rule (1) If, at any time during the Tribunal's review of a decision, the Tribunal is satisfied that a document that may be relevant to the review is in the possession or under the control of the decision‑maker, the Tribunal may request the decision‑maker to give a copy of the document to the Tribunal within a specified period. (2) The request may relate to a particular document or documents in a class of documents. (3) If the document is in the possession or under the control of the decision‑maker, the decision‑maker must give the Tribunal a copy of the document within the specified period. 27 Decision‑maker must give copies of reasons and documents to other parties—general rule (1) If a decision‑maker for a decision is required to give the Tribunal a statement or copy of a document under this Subdivision within a period, the decision‑maker must give a copy of the statement or document to each other party to the proceeding for review of the decision within the same period. (2) Subsection (1) does not apply if there is a certificate under section 91 (disclosure of information—public interest certificate) that relates to the disclosure of the statement or document in the proceeding. 28 Exceptions—Tribunal may adjust requirements When this section applies (1) This section applies if the decision‑maker for a decision is required to give the Tribunal or a party to a proceeding a statement or copy of a document under this Subdivision within a period. (2) This section applies despite any other provision in this Subdivision (other than section 29). Shorten period to comply (3) A party to the proceeding for review of the decision may apply to the Tribunal to shorten the period within which the decision‑maker must give the statement or copy. (4) On application under subsection (3) or on the Tribunal's own initiative, the Tribunal may, by order, shorten the period within which the decision‑maker must give the statement or copy if it appears to the Tribunal that a party to the proceeding for review of the decision could suffer hardship if the period is not shortened. Extend period to comply (5) The decision‑maker may apply to the Tribunal to extend the period within which the decision‑maker must give the statement or copy. (6) On application under subsection (5) or on the Tribunal's own initiative, the Tribunal may, by order, extend the period within which the decision‑maker must give the statement or copy. (7) The Tribunal may extend the period even if it has expired. Tribunal orders otherwise (8) The decision‑maker does not need to give the statement or copy if the Tribunal orders the decision‑maker not to give the statement or copy. Practice directions provide otherwise (9) The decision‑maker does not need to give the statement or copy in the circumstances specified in the practice directions. Number of copies (10) The Tribunal may, by order, require the decision‑maker to give a specified number of copies of the statement or document. 29 Exception—while resolving whether to restrict publication or disclosure of information (1) This section applies if the decision‑maker for a decision is required to give the Tribunal or a party to a proceeding a statement or copy of a document under this Subdivision. (2) This section applies despite subsection 27(1) and section 28. (3) If: (a) a person applies to the Tribunal for an order under section 70 prohibiting or restricting the publication or other disclosure of information in the statement or copy; and (b) the person gives the Tribunal the statement or copy; and (c) the person gives a copy of the application for the order to each party to the proceeding for review of the decision (other than the person); the decision‑maker does not need to give the statement or copy unless the Tribunal, after making its decision on the application for the order, orders the decision‑maker to do so. 30 Privilege and public interest This Subdivision (other than section 25) has effect despite any rule of law relating to legal professional privilege, without prejudice privilege or the public interest in relation to the production of documents. Subdivision C—Effect of application for review on decision 31 Decision cannot be altered outside Tribunal process General rule (1) After an application is made to the Tribunal for review of a reviewable decision, the decision may not be altered otherwise than by the Tribunal. Exceptions (2) However, the decision may be altered if: (a) both of the following apply: (i) the parties to the proceeding for the review consent to the alteration; (ii) the Tribunal, by order, consents to the alteration; or (b) the decision is remitted to the decision‑maker under section 85. Definitions (3) In this section: alter a decision means: (a) vary the decision; or (b) set the decision aside; or (c) set the decision aside and make a decision in substitution for the decision. 32 Reviewable decision continues to operate unless Tribunal orders otherwise General rule (1) The making of an application to the Tribunal for review of a reviewable decision does not affect the operation of the decision or prevent the taking of action to implement the decision. Exception—Tribunal may stay operation or implementation (2) However, on application by a party to a proceeding for review of a reviewable decision, the Tribunal may make an order staying or otherwise affecting the operation or implementation of the decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review. (3) The order is subject to any conditions specified in the order. (4) The order has effect until the decision of the Tribunal on the application for review comes into operation. (5) Despite subsection (4), if: (a) the order states that it applies for a period; and (b) the period ends before the decision of the Tribunal on the application for review comes into operation; the order has effect until the end of the period. (6) On application by a party to the proceeding, the Tribunal may, by order, vary or revoke the order. Preconditions to making, varying or revoking an order (7) The Tribunal must not make, vary or revoke an order staying or otherwise affecting the operation or implementation of a reviewable decision unless: (a) the Tribunal has given the parties to the proceeding for review of the decision a reasonable opportunity to make submissions to the Tribunal in relation to the making, variation or revocation of the order; and (b) the Tribunal has taken into account the interests of any person who may be affected by the review of the decision. (8) However, paragraph (7)(a) does not prevent the Tribunal making, varying or revoking an order without giving a party an opportunity to make a submission to the Tribunal if the Tribunal is satisfied that it is not practicable to give the party the opportunity. (9) If the Tribunal makes, varies or revokes an order without giving a party an opportunity to make a submission as mentioned in subsection (8), the order, variation or revocation does not take effect until a notice setting out the terms of the order, variation or revocation is given to the party. Part 4—Proceedings Division 1—Preliminary 33 Simplified outline of this Part This Part deals with the process the Tribunal follows when an application is made. It contains the standard provisions for Tribunal proceedings. Other legislation can include provisions that apply in addition to, or instead of, these standard provisions. For example, standard requirements apply to applications to the Tribunal, but other legislation may specify additional or alternative requirements. Practice directions made by the President also deal with various matters relating to Tribunal proceedings and operations. Practice directions must be published. The President decides which member or members will exercise the Tribunal's powers for a specific proceeding. This is referred to as constituting the Tribunal for the purposes of the proceeding. There are different requirements for constituting the Tribunal for different kinds of proceedings. For other ways the Tribunal's powers can be exercised, see Division 4 of Part 11. General principles (for example in relation to accessibility and informality) apply to how the Tribunal runs proceedings. Specific requirements also apply to the Tribunal, applicants, decision‑makers and other parties to proceedings. There are provisions dealing with the following: (a) participating in proceedings, including representation;