43Tribunal’s decision on review

#### 43 Tribunal’s decision on review (1A) This section has effect subject to sections 43AAA and 43AAB and subsections 65(3) and 83F(7) of the Australian Security Intelligence Organisation Act 1979. Tribunal’s decision on review (1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing: (a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and: (i) making a decision in substitution for the decision so set aside; or (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. (1AA) However, if the decision being reviewed is a security clearance decision, the only decisions that the Tribunal may make under subsection (1) are the following: (a) to affirm the decision under review; (b) to set aside the decision under review and remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. Tribunal must give reasons for its decision (2) Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision. (2A) Where the Tribunal does not give reasons in writing for its decision, a party to the proceeding may, within 28 days after the day on which a copy of the decision of the Tribunal is given to that party, request the Tribunal to give to that party a statement in writing of the reasons of the Tribunal for its decision, and the Tribunal shall, within 28 days after receiving the request, give to that party such a statement. (2B) Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. Tribunal must give copies of its decision to parties (3) The Tribunal shall cause a copy of its decision to be given to each party to the proceeding. Evidence of Tribunal’s decision or order (4) Without prejudice to any other method available by law for the proof of decisions or orders of the Tribunal, a document purporting to be a copy of such a decision or order, and to be certified by the Registrar, to be a true copy of the decision or order, is, in any proceeding, prima facie evidence of the decision or order. (5) Subsections (3) and (4) apply in relation to reasons given in writing by the Tribunal for its decision as they apply in relation to the decision. Tribunal must notify parties of further review rights (5AA) When the Tribunal gives a party to a proceeding a copy of its decision, the Tribunal must also give the party a written notice that includes a statement setting out the following, as applicable: (a) the party’s right to apply for second review of the decision; (b) the party’s right to appeal to a court on a question of law. (5AB) Subsection (5AA) does not apply in relation to the agency party to a proceeding in the Social Services and Child Support Division. (5AC) A failure to comply with subsection (5AA) in relation to a decision of the Tribunal does not affect the validity of the decision. When Tribunal’s decision comes into operation (5A) Subject to subsection (5B), a decision of the Tribunal comes into operation forthwith upon the giving of the decision. (5B) The Tribunal may specify in a decision that the decision is not to come into operation until a later date specified in the decision and, where a later date is so specified, the decision comes into operation on that date. (5C) Despite subsections (5A) and (5B), if: (a) the Tribunal has made an order under subsection 41(2) staying the operation or implementation of the decision under review; and (b) the order was in force immediately before the decision given by the Tribunal on the review; then, unless the Tribunal, the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2) otherwise orders, the operation or implementation of the Tribunal’s decision is stayed until: (c) subject to paragraph (d), the end of the period within which a party to the proceeding before the Tribunal may appeal from the decision to the Federal Court of Australia under subsection 44(1) (including any further time for bringing the appeal that is allowed by the Federal Court before the end of that period); or (d) if such an appeal is brought—the appeal is determined. Tribunal’s decision taken to be decision of decision‑maker (6) A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.