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Administrative Appeals Tribunal Act 1975

Part IVReviews by the Tribunal of decisions

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An Act to establish an Administrative Appeals Tribunal

Part I—Preliminary

1 Short title

This Act may be cited as the Administrative Appeals Tribunal Act 1975.

2 Commencement

This Act shall come into operation on a day to be fixed by Proclamation.

2A Tribunal’s objective

In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that: (a) is accessible; and (b) is fair, just, economical, informal and quick; and (c) is proportionate to the importance and complexity of the matter; and (d) promotes public trust and confidence in the decision‑making of the Tribunal.

3 Interpretation

(1) In this Act, unless the contrary intention appears:

adduce includes give.

agency party means a party who is:

(a) the Secretary of a Department; or
(b) the Chief Executive Medicare; or
(c) the Chief Executive Centrelink; or
(d) the Child Support Registrar.

alternative dispute resolution processes means procedures and services for the resolution of disputes, and includes:

(a) conferencing; and
(b) mediation; and
(c) neutral evaluation; and
(d) case appraisal; and
(e) conciliation; and
(f) procedures or services specified in the regulations;

but does not include: (g) arbitration; or (h) court procedures or services. Paragraphs (b) to (f) of this definition do not limit paragraph (a) of this definition.

ASIO affiliate has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

ASIO employee has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

ASIO Minister means the Minister administering the Australian Security Intelligence Organisation Act 1979.

authorised member means a member who has been authorised by the President under section 59A for the purposes of the provision in which the expression occurs.

authorised officer means an officer of the Tribunal who has been authorised by the President under section 59B for the purposes of the provision in which the expression occurs.

authority of Norfolk Island means an authority, tribunal or other body, whether incorporated or not, that is established by a Norfolk Island enactment.

Part Part IV - Administrative Appeals Tribunal Act 1975 - Reviews by the Tribunal of decisions | Zoe

(a) an Act;
(b) an Ordinance of a Territory other than the Northern Territory, the Australian Capital Territory or Norfolk Island; or
(c) an instrument (including rules, regulations or by‑laws) made under an Act or under such an Ordinance;

(a) a record of the Australian Security Intelligence Organisation; or
(b) a record that is claimed to be an exempt record under the Archives Act 1983 for the reason that it contains information or matter of a kind referred to in paragraph 33(1)(a) or (b) or subsection 33(4A) or (4C) of that Act.

(a) a Judge of a court created by the Parliament; or
(b) a person who has the same designation and status as a Judge of a court created by the Parliament.

(a) the President; or
(b) a Deputy President; or
(c) a senior member; or
(d) any other member (of any level referred to in subsection 6(3)).

(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;

(a) the Registrar; or
(b) a person appointed as an officer of the Tribunal under section 24PA.

(a) if a review of the decision is or would be an AAT first review within the meaning of the A New Tax System (Family Assistance) (Administration) Act 1999—section 111B of that Act; and
(b) if a review of the decision is or would be an AAT first review within the meaning of the Paid Parental Leave Act 2010—section 224A of that Act; and
(c) if a review of the decision is or would be an AAT first review within the meaning of the Social Security (Administration) Act 1999—section 142A of that Act; and
(d) if a review of the decision is or would be an AAT first review within the meaning of the Student Assistance Act 1973—section 311A of that Act.

(a) an application to the Tribunal for review of a decision; and
(b) an application to the Tribunal under subsection 28(1AC); and
(c) an application to the Tribunal for review of a taxing of costs; and
(d) an application to the Tribunal for a costs certificate under section 10A of the Federal Proceedings (Costs) Act 1981; and
(e) an application to the Tribunal under subsection 62(2) of the Freedom of Information Act 1982; and
(f) any other application to the Tribunal under this Act or any other Act; and
(g) any matter referred to the Tribunal for inquiry and/or review under this Act or any other Act; and
(h) an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or a matter, referred to in a preceding paragraph.

(a) authorises an application to be made for review of the decision; and
(b) designates the review as an AAT second review.

(a) means the Administrative Appeals Tribunal established by this Act; and
(b) in relation to a proceeding, means the Administrative Appeals Tribunal so established as constituted for the purposes of the proceeding; and
(c) includes a member, or an officer of the Tribunal, exercising powers of the Tribunal.

Acting member (other than President) (2) The Minister may, by written instrument, appoint a person to act as a member (other than the President) during any period, or during all periods, when: (a) a full‑time member is absent from duty or from Australia; or (b) a part‑time member is unavailable to perform the duties of office. Subject to this section, a person so appointed must not continue to act in that appointment for more than 12 months. (2A) The Minister may, by written instrument, appoint a person to act as a Deputy President during any period, or during all periods, when there are no Deputy Presidents. A person so appointed must not continue to act in that appointment for more than 12 months. Qualification for acting appointment (3) A person must not be appointed to act in an office under subsection (2) or (2A) unless the person meets the requirements in section 7 for appointment to the office. Extension of acting appointment (5) Where a person has been appointed under subsection (2), the Minister may, by reason of a pending proceeding or other special circumstances, direct, before the absent or unavailable member ceases to be absent or unavailable, that the person so appointed shall continue to act under the appointment after the member ceases to be absent or unavailable until he or she resigns the appointment or the Governor‑General terminates the appointment, but a person shall not continue to act by virtue of this subsection for more than 12 months after the member ceases to be absent or unavailable. (6) Where a person has been appointed under this section to act as a member during the absence or unavailability of a member and the member ceases to hold office without having resumed duty or become available to perform the duties of his or her office, the period of appointment of the person so appointed shall, subject to this Act, be deemed to continue until he or she resigns the appointment, the appointment is terminated by the Governor‑General or a period of 12 months elapses from the day on which the absent or unavailable member ceases to hold office, whichever first happens. Terms and conditions of acting appointment (7) Subject to this Part, a person (other than a Judge) appointed to act in an office under subsection (2) or (2A) is to act on such terms and conditions as the Minister determines in writing.

Before hearing commences (1) At any time before the hearing of a proceeding commences, the President may revoke a direction under subsection 19A(1) in relation to the proceeding and give another such direction. After hearing commences (2) At any time after the hearing of a proceeding commences and before the Tribunal determines the proceeding, the President may revoke a direction under subsection 19A(1) in relation to the proceeding and give another such direction, if: (a) the member, or one of the members, who constitutes the Tribunal for the purposes of the proceeding: (i) stops being a member; or (ii) is for any reason unavailable; or (iii) is directed by the President not to take part in the proceeding; or (b) the President considers that doing so is in the interests of achieving the expeditious and efficient conduct of the proceeding. (3) Subsection (2) does not apply in relation to a proceeding in the Security Division. (4) The reconstituted Tribunal must continue the proceeding. For this purpose, it may have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding). President’s directions (5) The President must not give a direction referred to in subparagraph (2)(a)(iii) unless the President: (a) is satisfied that it is the interests of justice to do so; and (b) where it is reasonably practicable to do so, has consulted the member concerned. (6) The President must not, for the purposes of subsection (2), revoke a direction under subsection 19A(1) in relation to a proceeding and give another such direction unless the President: (a) is satisfied that it is in the interests of justice to do so; and (b) where it is reasonably practicable to do so, has consulted each member who as a result ceases to be a member of the Tribunal as constituted for the purposes of the proceeding. (7) In giving directions for the purposes of this section, the President must have regard to the Tribunal’s objective in section 2A.

Enactment may provide for applications for review of decisions (1) An enactment may provide that applications may be made to the Tribunal: (a) for review of decisions made in the exercise of powers conferred by that enactment; or (b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment. (2) The regulations may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by a Norfolk Island enactment. (3) Where an enactment makes provision in accordance with subsection (1) or (2), that enactment: (a) shall specify the person or persons to whose decisions the provision applies; (b) may be expressed to apply to all decisions of a person, or to a class of such decisions; and (c) may specify conditions subject to which applications may be made. Delegations, acting appointments and authorisations (3A) Where an enactment makes provision in accordance with this section for the making of applications to the Tribunal for the review of decisions of a person made in the exercise of a power conferred on that person, that provision of that enactment applies also in relation to decisions made in the exercise of that power: (a) by any person to whom that power has been delegated; (b) in the case where the provision specifies the person by reference to his or her being the holder of a particular office or appointment—by any person for the time being acting in, or performing any of the duties of, that office or appointment; or (c) by any other person lawfully authorized to exercise that power. Tribunal may determine scope of review (4A) The Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers. Failure of decision‑maker to meet deadline (5) For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing. (5A) For the purposes of regulations that make provision in accordance with this section for the making of applications to the Tribunal for review of decisions made in the exercise of powers conferred by a Norfolk Island enactment, a failure by a person to do an act or thing within the period prescribed by: (a) that Norfolk Island enactment; or (b) another Norfolk Island enactment having effect under that Norfolk Island enactment; as the period within which that person is required or permitted to do that act or thing is taken to constitute the making of a decision by that person at the end of that period not to do that act or thing. Enactment may add to, exclude or modify operation of certain provisions (6) If an Act provides for applications to the Tribunal: (a) that Act may also include provisions adding to, excluding or modifying the operation of any of the provisions of this Act in relation to such applications; and (b) those provisions have effect subject to any provisions so included. (6A) If an enactment (other than an Act) provides for applications to the Tribunal: (a) that enactment may also include provisions adding to, excluding or modifying the operation of any of the provisions of sections 27, 29, 29AB, 29AC, 32, 33 and 35 or of subsection 41(1) or 43(1) or (2) in relation to such applications; and (b) those sections and subsections have effect subject to any provisions so included. What happens if decision‑maker ceases to hold office etc. (7) Where: (a) a person has made a decision in respect of which an application may be made to the Tribunal; (b) the person made the decision by reason that he or she held or performed the duties of an office or appointment; and (c) the person no longer holds or performs the duties of the office or appointment; this Act has effect as if the decision had been made by: (d) the person for the time being holding or performing the duties of that office or appointment; or (e) if there is no person for the time being holding or performing the duties of that office or appointment or the office no longer exists—such person as the President or an authorised member specifies. Norfolk Island enactment (8) If the regulations make provision in accordance with subsection (2) for the making of applications to the Tribunal for review of decisions made in the exercise of powers conferred by a Norfolk Island enactment (the primary Norfolk Island enactment), this Act, other than: (a) the definition of authority of the Commonwealth in subsection 3(1); and (b) subsections (1), (5) and (6) of this section; and (c) paragraph 19B(1)(a); and (d) subsection 27(1); and (e) paragraph 27A(2)(b); and (f) paragraph 33(1)(a); and (g) paragraph 43B(1)(a); and (h) section 59; has effect as if: (i) the primary Norfolk Island enactment; and (j) any other Norfolk Island enactment, in so far as it relates to the primary Norfolk Island enactment; were an enactment (within the meaning of this Act).

Applications under Part IV of the Australian Security Intelligence Organisation Act 1979 (1) An application under subsection 54(1) of the Australian Security Intelligence Organisation Act 1979 for review of a security assessment may be made by a person in respect of whom the assessment was made and who has, in accordance with Part IV of that Act, been given notice of the assessment. (2) An application under subsection 54(2) of the Australian Security Intelligence Organisation Act 1979 for review of the findings of the Tribunal on a review of a security assessment may be made by the person who applied for the review in which the findings were made. (3) If the Tribunal is satisfied that an application referred to in subsection (2) is justified, it may review its previous findings, and this Act applies in relation to such a review and the findings in such a review as if it were the review of an assessment. Applications under Part IVA of the Australian Security Intelligence Organisation Act 1979 (4) An application under subsection 83B(1) of the Australian Security Intelligence Organisation Act 1979 for review of a security clearance decision or security clearance suitability assessment may be made by a person in respect of whom the decision or suitability assessment was made and who has, in accordance with Part IVA of that Act, been given notice of the decision or suitability assessment. (5) An application under subsection 83B(2) of the Australian Security Intelligence Organisation Act 1979 for review of the findings of the Tribunal on a review of a security clearance decision or security clearance suitability assessment may be made by the person who applied for the review in which the findings were made. (6) If the Tribunal is satisfied that an application referred to in subsection (5) is justified, it may review its previous findings, and this Act applies in relation to such a review and the findings in such a review as if it were the review of a security clearance decision or security clearance suitability assessment.

(a) a decision that is reviewable by the Tribunal; or
(b) a decision that is reviewable by:
(i) a person whose decision on review is reviewable by the Tribunal; or
(ii) a person whose decision on review, because of subparagraph (i), is a reviewable decision.

Request for statement of reasons (1) Subject to subsection (1AAA), if a person makes a decision in respect of which an application may be made to the Tribunal for a review, any person (in this section referred to as the applicant) who is entitled to apply to the Tribunal for a review of the decision may, by notice in writing given to the person who made the decision, request that person to give to the applicant a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision, and the person who made the decision shall, as soon as practicable but in any case within 28 days after receiving the request, prepare, and give to the applicant, such a statement. Exceptions (1AAA) Subsection (1) does not apply in relation to: (a) a decision that is reviewable in the Security Division; or (b) a decision that is a decision on AAT first review within the meaning of any of the following: (i) the A New Tax System (Family Assistance) (Administration) Act 1999; (ii) the Child Support (Registration and Collection) Act 1988; (iii) the Social Security (Administration) Act 1999; (iv) the Student Assistance Act 1973; (v) the Paid Parental Leave Act 2010. What happens if decision‑maker contests applicant’s entitlement to statement of reasons (1AA) Where a person to whom a request for a statement in relation to a decision is made by an applicant under subsection (1) is of the opinion that the applicant is not entitled to be given the statement, that person shall, as soon as practicable but in any case within 28 days after receiving the request, give to the applicant notice in writing of his or her opinion. (1AB) A person who gives a notice under subsection (1AA) with respect to a request for a statement in relation to a decision is not required to comply with the request unless the Tribunal, on application under subsection (1AC), decides that the applicant was entitled to be given the statement, and, if the Tribunal so decides, the first‑mentioned person shall prepare the statement and give it to the applicant within 28 days after the decision of the Tribunal is given. (1AC) On application by an applicant who has received a notice under subsection (1AA), the Tribunal must decide whether the applicant was or was not entitled to be given the statement concerned. When decision‑maker may refuse to give statement of reasons (1A) A person to whom a request for a statement in relation to a decision is made under subsection (1) may refuse to prepare and give the statement if: (a) in the case of a decision the terms of which were recorded in writing and set out in a document that was given to the applicant—the request was not made on or before the twenty‑eighth day after the day on which that document was given to the applicant; or (b) in any other case—the request was not made within a reasonable time after the decision was made; and in any such case the person to whom the request was made shall give to the applicant, as soon as practicable but in any case within 28 days after receiving the request, notice in writing stating that the statement will not be given to him or her and giving the reason why the statement will not be so given. (1B) For the purposes of paragraph (1A)(b), a request for a statement in relation to a decision shall be deemed to have been made within a reasonable time after the decision was made if the Tribunal, on application by the person who made the request, declares that the request was made within a reasonable time after the decision was made. Public interest certificate (2) If the Attorney‑General certifies, by writing signed by him or her, that the disclosure of any matter contained in a statement prepared in accordance with subsection (1) would be contrary to the public interest: (a) by reason that it would prejudice the security, defence or international relations of Australia; (b) by reason that it would involve the disclosure of deliberations of the Cabinet or of a Committee of the Cabinet; or (c) for any other reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter should not be disclosed; subsections (3) and (3A) have effect. (3) A person to whom a request for a statement in relation to a decision is made under subsection (1): (a) is not required to include in the statement any matter in relation to which the Attorney‑General has given a certificate under subsection (2); and (b) where the statement would be false or misleading if it did not include such matter—is not required by subsection (1) to give the statement to the applicant. (3A) Where a certificate is given under subsection (2) in relation to matter contained in a statement prepared in accordance with subsection (1) in relation to a decision: (a) the person who made the decision shall notify the applicant in writing: (i) in a case where the matter is not included in the statement—that the matter is not so included and giving the reason for not including the matter; or (ii) in a case where the statement is not given—that the statement will not be given and giving the reason for not giving the statement; and (b) subsections 36(2), (3), (3A) and (4) and 36D(1) to (6), inclusive, apply in relation to any statement referred to in paragraph 37(1)(a) in relation to that decision that is lodged with the Tribunal under section 37 as if the certificate were a certificate given under subsection 36(1) in relation to any such matter that is contained in the last‑mentioned statement. When applicant not entitled to request statement of reasons (4) The applicant is not entitled to make a request under subsection (1) if: (a) the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision, and a document setting out the terms of the decision has been given to him or her; or (b) a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision has already been given to him or her. Inadequate statement of reasons (5) An applicant who has been given a statement under subsection (1) may apply to the Tribunal for a declaration that the statement does not contain one or more of the following: (a) adequate particulars of findings on material questions of fact; (b) an adequate reference to the evidence or other material on which those findings were based; (c) adequate particulars of the reasons for the decision. (6) If the Tribunal makes the declaration, the person to whom the request for the statement was made must, as soon as practicable and no later than 28 days after the day the declaration was made, give the applicant an additional statement containing further and better particulars in relation to the matters specified in the declaration.

(b) must be accompanied by any prescribed fee; and
(c) unless paragraph (ca) or (cb) applies or the application was oral—must contain a statement of the reasons for the application; and
(ca) in respect of an application made under subsection 54(1) or 83B(1) of the Australian Security Intelligence Organisation Act 1979 for review of a security assessment or a security clearance suitability assessment—must be accompanied by:
(i) a copy of the assessment or suitability assessment as given to the applicant; and
(ii) a statement indicating any part or parts of the assessment or suitability assessment with which the applicant does not agree and setting out the grounds on which the application is made; and
(cb) in respect of an application under subsection 54(2) or 83B(2) of the Australian Security Intelligence Organisation Act 1979—must be accompanied by a statement setting out the grounds on which the application is made;
(d) if the terms of the decision were recorded in writing and set out in a document that was given to the applicant or the decision is deemed to be made by reason of the operation of subsection 25(5) or (5A)—shall be lodged with the Tribunal within the prescribed time.

Address at which documents may be given (1A) If, in an application, a person does not provide an address at which documents in relation to the proceeding may be given, any address of the person shown in the application, or later notified to the Tribunal as an address at which such documents may be given, is taken to be an address provided by the person at which such documents may be given. Prescribed time for making applications—general (2) Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty‑eighth day after: (a) if the decision sets out the findings on material questions of fact and the reasons for the decision—the day on which a document setting out the terms of the decision is given to the applicant; or (b) if the decision does not set out those findings and reasons: (i) if a statement in writing setting out those findings and reasons is given to the applicant otherwise than in pursuance of a request under subsection 28(1) not later than the twenty‑eighth day after the day on which a document setting out the terms of the decision is given to the applicant—the day on which the statement is so given; (ii) if the applicant, in accordance with subsection 28(1), requests the person who made the decision to give a statement as mentioned in that subsection—the day on which the statement is given or the applicant is notified in accordance with subsection 28(3A) that the statement will not be given; or (iii) in any other case—the day on which a document setting out the terms of the decision is given to the applicant. Prescribed time for making applications—decision‑maker’s failure to meet deadline (3) In the case of a decision that is deemed to be made by reason of the operation of subsection 25(5) or (5A), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is deemed to be made and ending: (a) in a case to which paragraph (b) does not apply—on the twenty‑eighth day after that day; or (b) in the case where the person whose failure to do an act or thing within a particular period is deemed by subsection 25(5) or (5A) to constitute the making of the decision makes or purports to make, after the expiration of that period, a decision either to do or not to do that act or thing, being a decision the terms of which were recorded in writing and set out in a document that was given to the applicant—on the twenty‑eighth day after: (i) if the decision sets out the findings on material questions of fact and the reasons for the decision—the day on which a document setting out the terms of the decision is given to the applicant; or (ii) if the decision does not set out those findings and reasons—the day that would be ascertained under paragraph (2)(b) if subsection (2) were applicable in relation to the decision. What happens if there is no prescribed time for making applications (4) Where: (a) no time is prescribed for the lodging with the Tribunal of applications for review of a particular decision; or (b) no time is prescribed for the lodging with the Tribunal by a particular person of an application for a review of a particular decision; and the Tribunal is of the opinion that the application was not lodged within a reasonable time after the decision was made, the Tribunal shall, subject to subsection (6): (c) in a case to which paragraph (a) applies—refuse to entertain an application for a review of the decision referred to in that paragraph; or (d) in a case to which paragraph (b) applies—refuse to entertain an application by the person referred to in that paragraph for a review of the decision so referred to. (5) In forming an opinion for the purposes of subsection (4), the Tribunal shall have regard to: (a) the time when the applicant became aware of the making of the decision; and (b) in a case to which paragraph (4)(b) applies—the period or periods prescribed for the lodging by another person or other persons of an application or applications for review of the decision; and may have regard to any other matters that it considers relevant. (6) Notwithstanding subsection (4), the Tribunal may entertain an application referred to in that subsection if it is of the opinion that there are special circumstances that justify it in doing so. Tribunal may extend time for making application (7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so. (8) The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired. (9) Before the Tribunal determines an application for an extension of time, the Tribunal or an officer of the Tribunal may: (a) give notice of the application to any persons the Tribunal or officer considers to be affected by the application; or (b) require the applicant to give notice to those persons. (10) If a person to whom a notice is given under subsection (9), within the prescribed time after the notice is received by him or her, gives notice to the Tribunal stating that he or she wishes to oppose the application, the Tribunal shall not determine the application except after a hearing at which the applicant and any person who so gave notice to the Tribunal are given a reasonable opportunity of presenting their respective cases.

(1) In a proceeding before the Tribunal: (a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal; (b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and (c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. Decision‑maker must assist Tribunal (1AA) In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding. Parties etc. must assist Tribunal (1AB) A party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A. Directions hearing (1A) The President or an authorised member may hold a directions hearing in relation to a proceeding. Who may give directions (2) For the purposes of subsection (1), directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be given: (a) where the hearing of the proceeding has not commenced—by a person holding a directions hearing in relation to the proceeding, by the President, by an authorised member or by an authorised officer; and (b) where the hearing of the proceeding has commenced—by the member presiding at the hearing or by any other member authorized by the member presiding to give such directions. Types of directions (2A) Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may: (a) require any person who is a party to the proceeding to provide further information in relation to the proceeding; or (b) require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or (c) require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing; or (d) limit the number of witnesses who may be called to give evidence (either generally or on a specified matter); or (e) require witnesses to give evidence at the same time; or (f) limit the time for giving evidence or making oral submissions; or (g) limit the length of written submissions.

(1) If: (a) in the course of an alternative dispute resolution process under this Division, agreement is reached between the parties (including the agency party to a proceeding in the Social Services and Child Support Division who did not participate in the alternative dispute resolution process) or their representatives as to the terms of a decision of the Tribunal: (i) in the proceeding; or (ii) in relation to the part of the proceeding; or (iii) in relation to the matter arising out of the proceeding; that would be acceptable to the parties; and (b) the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and (c) 7 days pass after lodgment, and none of the parties has notified the Tribunal in writing that he or she wishes to withdraw from the agreement; and (d) the Tribunal is satisfied that a decision in the terms of the agreement or consistent with those terms would be within the powers of the Tribunal; the Tribunal may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case. (2) If the agreement reached is an agreement as to the terms of a decision of the Tribunal in the proceeding, the Tribunal may, without holding a hearing of the proceeding, make a decision in accordance with those terms. (3) If the agreement relates to: (a) a part of the proceeding; or (b) a matter arising out of the proceeding; the Tribunal may, in its decision in the proceeding, give effect to the terms of the agreement without dealing at the hearing of the proceeding with the part of the proceeding or the matter arising out of the proceeding, as the case may be, to which the agreement relates. Variation or revocation of decision (4) The Tribunal may vary or revoke so much of a decision as it made in accordance with subsection (2) or (3) if: (a) the parties, or their representatives, reach agreement on the variation or revocation; and (b) the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and (c) the variation or revocation appears appropriate to the Tribunal; and (d) in the case of a variation—the Tribunal is satisfied that it would have been within the powers of the Tribunal to have made the decision as varied.

Public hearing (1) Subject to this section, the hearing of a proceeding before the Tribunal must be in public. Private hearing (2) The Tribunal may, by order: (a) direct that a hearing or part of a hearing is to take place in private; and (b) give directions in relation to the persons who may be present. Orders for non‑publication or non‑disclosure (3) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of: (a) information tending to reveal the identity of: (i) a party to or witness in a proceeding before the Tribunal; or (ii) any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or (b) information otherwise concerning a person referred to in paragraph (a). (4) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that: (a) relates to a proceeding; and (b) is any of the following: (i) information that comprises evidence or information about evidence; (ii) information lodged with or otherwise given to the Tribunal. (5) In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable: (a) that hearings of proceedings before the Tribunal should be held in public; and (b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and (c) that the contents of documents lodged with the Tribunal should be made available to all the parties. However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information. Not applicable to Security Division review of security assessment (6) This section does not apply in relation to a proceeding in the Security Division to which section 39A or 39BA applies.

Scope (1AA) This section does not apply to a proceeding in the Security Division to which section 39A or 39BA applies. Attorney‑General may issue public interest certificate (1) If the Attorney‑General certifies, by writing signed by him or her, that the disclosure of information concerning a specified matter, or the disclosure of any matter contained in a document, would be contrary to the public interest: (a) by reason that it would prejudice the security, defence or international relations of Australia; (b) by reason that it would involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet; or (c) for any other reason specified in the certificate 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; the following provisions of this section have effect. Protection of information etc. (2) A person who is required by or under this Act to disclose the information or to produce to, or lodge with, the Tribunal the document in which the matter is contained for the purposes of a proceeding is not excused from the requirement but the Tribunal shall, subject to subsection (3) and to section 46, do all things necessary to ensure that the information or the matter contained in the document is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the proceeding, and, in the case of a document produced to or lodged with the Tribunal, to ensure the return of the document to the person by whom it was produced or lodged. Disclosure of information etc. (3) Where the Attorney‑General has certified in accordance with subsection (1) that the disclosure of information, or of matter contained in a document, would be contrary to the public interest but the certificate does not specify a reason referred to in paragraph (1)(a) or (b), the Tribunal shall consider whether the information or the matter should be disclosed to all or any of the parties to the proceeding and, if it decides that the information or the matter should be so disclosed, the Tribunal shall make the information available or permit the part of the document containing the matter to be inspected accordingly. Attorney‑General taken to be a party (3A) Where, in relation to a proceeding to which the Attorney‑General would not, but for this subsection, be a party, the Attorney‑General certifies in accordance with subsection (1) that the disclosure of information, or of matter contained in a document, would be contrary to the public interest but the certificate does not specify a reason referred to in paragraph (1)(a) or (b), the Attorney‑General shall, for the purposes of this Act, be deemed to be a party to the proceeding. What Tribunal must consider in deciding whether to disclose information etc. (4) In considering whether information or matter contained in a document should be disclosed as mentioned in subsection (3), the Tribunal shall take as the basis of its consideration the principle that it is desirable in the interest of securing the effective performance of the functions of the Tribunal that the parties to a proceeding should be made aware of all relevant matters but shall pay due regard to any reason specified by the Attorney‑General in the certificate as a reason why the disclosure of the information or of the matter contained in the document, as the case may be, would be contrary to the public interest.

Scope (1AA) This section does not apply to a proceeding in the Security Division to which section 39A or 39BA applies. State Attorney‑General may issue public interest certificate (1) If the Attorney‑General of a State certifies, by writing signed by him or her, that the disclosure of information concerning a specified matter, or the disclosure of any matter contained in a document, would be contrary to the public interest: (a) by reason that it would involve the disclosure of deliberations or decisions of the Cabinet, or of a Committee of the Cabinet, of the State; or (b) for any other specified reason that could form the basis for a claim by the Crown in right of the State in a judicial proceeding that the information or the matter contained in the document should not be disclosed; the following provisions of this section have effect. Protection of information etc. (2) A person who is required by or under this Act to disclose the information, or to produce to, or lodge with, the Tribunal the document in which the matter is contained, for the purposes of a proceeding is not excused from the requirement, but the Tribunal shall, subject to subsection (3) and to section 46, do all things necessary to ensure that the information, or the matter contained in the document, is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the proceeding, and, in the case of a document produced to or lodged with the Tribunal, to ensure the return of the document to the person by whom it was produced or lodged. Disclosure of information etc. (3) Where the Attorney‑General of a State has certified in accordance with subsection (1) that the disclosure of information, or of matter contained in a document, would be contrary to the public interest but the certificate does not specify a reason referred to in paragraph (1)(a), the Tribunal shall consider whether the information or the matter should be disclosed to all or any of the parties to the proceeding and, if it decides that the information or the matter should be so disclosed, the Tribunal shall make the information available or permit the part of the document containing the matter to be inspected accordingly. State Attorney‑General taken to be a party (4) Where, in relation to a proceeding to which the Attorney‑General of a State would not, but for this subsection, be a party, that Attorney‑General certifies in accordance with subsection (1) that the disclosure of information, or of matter contained in a document, would be contrary to the public interest but the certificate does not specify a reason referred to in paragraph (1)(a), that Attorney‑General shall, for the purposes of this Act, be taken to be a party to the proceeding. What Tribunal must consider in deciding whether to disclose information etc. (5) In considering whether information, or matter contained in a document, should be disclosed as mentioned in subsection (3), the Tribunal shall take as the basis of its consideration the principle that it is desirable in the interest of securing the effective performance of the Tribunal’s functions that the parties to a proceeding should be made aware of all relevant matters, but shall pay due regard to any reason that the Attorney‑General of the State has specified in the certificate as a reason why the disclosure of the information, or of the matter contained in the document, as the case may be, would be contrary to the public interest.

Scope (1AA) This section does not apply to a proceeding in the Security Division to which section 39A or 39BA applies. Parties to be notified of Tribunal’s decision (1) As soon as practicable after making a decision: (a) under subsection 36(3) or 36B(3) in relation to information, or matter contained in a document, in relation to a proceeding; or (b) under paragraph 36A(2)(b) or 36C(2)(b) in relation to the answering of a question at the hearing of a proceeding; the Tribunal shall give to each party to the proceeding a document setting out the terms of the Tribunal’s decision. Question of law (2) For the purposes of this Act: (a) the question whether information, or matter contained in a document, should be disclosed to the parties to a proceeding; or (b) the question whether the answering of a question would be contrary to the public interest; is a question of law. Constitution of Tribunal (3) The Tribunal’s power to make a decision under subsection 36(3) or 36B(3) or paragraph 36A(2)(b) or 36C(2)(b) may be exercised only by the Tribunal constituted by a member who is a Judge of the Federal Court of Australia. Appeals (4) A decision by the Tribunal: (a) under subsection 36(3) or 36B(3) as to whether or not information, or matter contained in a document, should be disclosed to all or any of the parties to a proceeding; or (b) under paragraph 36A(2)(b) or 36C(2)(b) that the answering of a question at the hearing of a proceeding would, or would not, be contrary to the public interest; is a decision by the Tribunal in that proceeding for the purposes of section 44. Disclosure of information etc. to officers and staff of Tribunal (5) Nothing in section 36 or 36B prevents the disclosure of information, or of matter contained in a document, to a member of the staff of the Tribunal or to an officer of the Tribunal in the course of the performance of his or her duties as a member of the staff of the Tribunal or an officer of the Tribunal. Public interest (6) Sections 36 and 36B exclude the operation of any rules of law that relate to the public interest and would otherwise apply in relation to the disclosure of information, or of matter contained in documents, in proceedings before the Tribunal. Commonwealth Attorney‑General or State Attorney‑General may appear or be represented (7) The Attorney‑General, or the Attorney‑General of a State: (a) may appear before the Tribunal personally, or may be represented before the Tribunal by a barrister, solicitor or other person, in order to inform the Tribunal of his or her opinion in accordance with section 36A or 36C; or (b) may so inform the Tribunal of his or her opinion by causing to be sent to the Tribunal a written certificate that is signed by him or her and sets out that opinion.

Scope (1AAA) This section does not apply to a proceeding in the Security Division to which section 39A or 39BA applies. Decision‑maker must lodge material documents (1) Subject to this section, a person who has made a decision that is the subject of an application for review (other than second review) by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal a copy of: (a) a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and (b) subject to any directions given under section 18B, every other document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal. (1AAB) Subject to this section, if the Tribunal has made a decision that is the subject of an application for second review: (a) the person who made the decision that was reviewed by the Tribunal; or (b) for an application referred to in paragraph 96A(a) or (c) of the Child Support (Registration and Collection) Act 1988—the Registrar within the meaning of that Act; must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal a copy of any document of a kind referred to in paragraph (1)(b) that is required to be lodged by a direction given under section 18B. (1AA) The Tribunal may direct a person who is required to lodge a copy of a statement or document under subsection (1) or (1AAB) to lodge a specified number of additional copies with the Tribunal, within the specified period. The person must comply with the direction. Document setting out reasons for decision may be lodged instead of statement (1AB) The Tribunal may direct a person who is required to lodge a copy of a statement under paragraph (1)(a) to lodge instead of that statement a copy of a document setting out the reasons for the relevant decision, within the specified period. The person must comply with the direction. (1AC) If a person has, in accordance with a direction given under subsection (1AB), lodged with the Tribunal a copy of the document setting out the reasons for a decision, the Tribunal may at any later time direct the person to lodge with the Tribunal, within such period as the Tribunal determines, a statement in accordance with paragraph (1)(a). (1AD) If a person who has made a decision that is the subject of an application for a review by the Tribunal has given to a party to the proceeding a statement in relation to the decision under subsection 28(1), the reference in paragraph (1)(a) to a statement is taken to be a reference to the statement given under subsection 28(1). Statement of reasons and relevant documents to be given to other parties (1AE) A person who is required under subsection (1), (1AAB) or (1AB) to lodge a copy of a statement or document with the Tribunal within a particular period must, unless the Tribunal directs otherwise, also give a copy of the statement or document to each other party to the proceeding, within the same period. When document not required to be lodged (1AF) If: (a) a person who has made a decision that is the subject of an application for a review by the Tribunal would, apart from this subsection, be required under paragraph (1)(b) or subsection (1AAB) to lodge a copy of a document with the Tribunal in respect of the application; and (b) within the period applicable under subsection (1) the person: (i) applies to the Tribunal for a direction under subsection 35(3) or (4) in relation to the document and lodges with the Tribunal, together with the application for the direction, a copy of the document; and (ii) gives a copy of the application for the direction to each party to the application for review; the person is not required to comply with paragraph (1)(b) or subsection (1AAB) in relation to the document unless and until the Tribunal, after hearing the application for the direction, directs the person to do so. (1AG) Subsection (1AF) does not affect the obligation of a person referred to in that subsection to comply with paragraph (1)(b) or subsection (1AAB) in relation to a document to which that subsection does not apply. Tribunal may shorten deadline for lodging documents (1A) If it appears to the Tribunal that a party to a proceeding before the Tribunal for a review of a decision would or might suffer hardship if the period prescribed by subsection (1) or (1AAB) for lodging with the Tribunal for the purposes of the review the copy of the documents mentioned in that subsection is not shortened, the Tribunal may, upon request being made by that party, make an order directing that the copy be lodged with the Tribunal within such period (being a period of less than 28 days) after the person who made the decision receives or received notice of the application as is specified in the order. What happens if application lodged out of time (1B) Where an application that has been lodged with the Tribunal for a review of a decision was not lodged within the time within which it was required by section 29 to be lodged, the reference in subsection (1) or (1AAB) to the period of 28 days after the person who made the decision receives notice of the application for a review shall be read as a reference to the period of 28 days after the day on which that person so receives notice or the day on which the Tribunal makes a determination extending the time for the making of the application for a review, whichever is the later. (1C) The Tribunal may, upon request being made by a party to a proceeding before the Tribunal for a review of a decision, direct, by order, that subsection (1B) shall have effect in relation to an application for a review of the decision as if the last reference in that subsection to a period of 28 days were a reference to such shorter period as is specified in the order. (1D) Subsection (1B) does not apply in relation to an application for a review of a decision if the decision is the subject of another application to which subsection (1B) does not apply. Tribunal may require other documents to be lodged (2) Where the Tribunal is of the opinion that particular other documents or that other documents included in a particular class of documents may be relevant to the review of the decision by the Tribunal, the Tribunal may cause to be given to the person a notice in writing stating that the Tribunal is of that opinion and requiring the person to lodge with the Tribunal, within a time specified in the notice, the specified number of copies of each of those other documents that is in his or her possession or under his or her control, and a person to whom such a notice is given shall comply with the notice. Privilege and public interest (3) This section has effect notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents.

Review of security assessment (1) If an application for a review of a security assessment is made to the Tribunal, the Tribunal is to review the assessment in accordance with this section. Parties (2) The parties to the proceeding are the Director‑General of Security and the applicant, but the Commonwealth agency, State or authority of a State to which the assessment is given is entitled to adduce evidence and make submissions. Director‑General of Security must present all relevant information (3) It is the duty of the Director‑General of Security to present to the Tribunal all relevant information available to the Director‑General, whether favourable or unfavourable to the applicant. Member may require parties to attend etc. (4) A member who is to participate, or who is participating, in the hearing may, at any time, require either or both of the parties to attend or be represented before the member for the purpose of conferring with the member concerning the conduct of the review with a view to identifying the matters in issue or otherwise facilitating the conduct of the proceedings. Proceedings to be in private (5) The proceedings are to be in private and, subject to this section, the Tribunal is to determine what people may be present at any time. Right of parties etc. to be present (6) Subject to subsection (9), the applicant and a person representing the applicant may be present when the Tribunal is hearing submissions made or evidence adduced by the Director‑General of Security or the Commonwealth agency, State or authority of a State to which the assessment was given. (7) The Director‑General of Security or a person representing the Director‑General, and a person representing the Commonwealth agency, State or authority of a State to which the assessment was given, may be present when the Tribunal is hearing submissions made or evidence adduced by the applicant. Security/defence certificate (8) The ASIO Minister may, by signed writing, certify that evidence proposed to be adduced or submissions proposed to be made by or on behalf of the Director‑General of Security or the Commonwealth agency, State or authority of a State to which the assessment was given are of such a nature that the disclosure of the evidence or submissions would be contrary to the public interest because it would prejudice security or the defence of Australia. (9) If such a certificate is given: (a) the applicant must not be present when the evidence is adduced or the submissions are made; and (b) a person representing the applicant must not be present when the evidence is adduced or the submissions are made unless the ASIO Minister consents. (10) If a person representing the applicant is present when evidence to which a certificate given under subsection (8) relates is adduced or submissions to which such a certificate relates are made, the representative must not disclose any such evidence or submission to the applicant or to any other person.

Protection of identity of person giving evidence (11) If the Director‑General of Security so requests, the Tribunal must do all things necessary to ensure that the identity of a person giving evidence on behalf of the Director‑General of Security is not revealed. Evidence and submissions (12) The Tribunal must first hear evidence adduced, and submissions made, by or on behalf of the Director‑General of Security and any evidence or submissions that the Commonwealth agency, State or authority of a State to which the assessment was given may wish to adduce or make. (13) The Tribunal must next permit the applicant, if he or she so desires, to adduce evidence before, and make submissions to, the Tribunal. (14) The Tribunal may, on its own initiative and at any stage of the proceedings, invite a person to give evidence, or cause a person to be summoned to give evidence. (15) If a person invited or summoned to give evidence under subsection (14) is: (a) an ASIO employee or ASIO affiliate; or (b) an officer or employee of the Commonwealth agency, State or authority of a State to which the assessment was given; subsection (8) applies as if any evidence to be given by the person were evidence proposed to be adduced by or on behalf of the Director‑General of Security or that agency, State or authority, as the case may be. (16) If: (a) a party presents his or her case to the Tribunal; and (b) after that case has been presented, the other party adduces evidence; and (c) the Tribunal thinks that, because of evidence adduced by the other party, the first‑mentioned party should be further heard; the Tribunal must give the first‑mentioned party an opportunity of adducing further evidence but must not give to the applicant any particulars of any evidence to which a certificate given under subsection (8) relates. (17) A member of the Tribunal may ask questions of a witness before the Tribunal and the presiding member may require a witness to answer any such question. Dismissal of application (18) If the applicant fails within a reasonable time: (a) to proceed with the application; or (b) to comply with a direction by the Tribunal in relation to the application; the President or an authorised member may dismiss the application without proceeding to review the security assessment.

Review of security clearance decision or security clearance suitability assessment (1) If an application for a review of a security clearance decision or security clearance suitability assessment is made to the Tribunal, the Tribunal is to review the decision or suitability assessment in accordance with this section. Parties (2) The parties to the proceeding are the Director‑General of Security and the applicant, but each of the following bodies (the relevant body) is entitled to adduce evidence and make submissions: (a) for a review of a security clearance decision—the sponsoring agency for the security clearance in relation to which the security clearance decision was made; (b) for a review of a security clearance suitability assessment—the following: (i) the security vetting agency to which the suitability assessment was given; (ii) the sponsoring agency for the security clearance in relation to which the suitability assessment was given, if that agency was also given the suitability assessment by the Australian Security Intelligence Organisation. Director‑General of Security must present all relevant information (3) It is the duty of the Director‑General of Security to present to the Tribunal all information available to the Director‑General (whether favourable or unfavourable to the applicant) that is relevant to the findings made in the statement of grounds for the security clearance decision or security clearance suitability assessment. (4) Without limiting subsection (3), the Director‑General of Security may present to the Tribunal: (a) a copy of any standard (or part thereof) certified in writing by the Director‑General as a standard relating to the Commonwealth’s highest level of security clearance that was used to make the security clearance decision or security clearance suitability assessment; or (b) a copy of any standard (or part thereof) certified in writing by the Director‑General as a current standard relating to the Commonwealth’s highest level of security clearance.

(5) To avoid doubt, the Director‑General of Security may present to the Tribunal both copies of a standard (or part thereof) referred to in paragraphs (4)(a) and (b). Member may require parties to attend etc. (6) A member who is to participate, or who is participating, in the hearing may, at any time, require either or both of the parties to attend or be represented before the member for the purpose of conferring with the member concerning the conduct of the review with a view to identifying the matters in issue or otherwise facilitating the conduct of the proceedings. Proceedings to be in private (7) The proceedings are to be in private and, subject to this section, the Tribunal is to determine which people may be present at any time. Right of parties etc. to be present (8) Subject to subsections (9) and (12), the applicant and a person representing the applicant may be present when the Tribunal is hearing submissions made or evidence adduced by the Director‑General of Security or the relevant body. (9) The applicant and any person representing the applicant must not be present when the Tribunal is hearing submissions made or evidence adduced in relation to any part of a copy of any standard presented to the Tribunal under subsection (4) that has not already been disclosed to the applicant. (10) The Director‑General of Security or a person representing the Director‑General, and a person representing the relevant body, may be present when the Tribunal is hearing submissions made or evidence adduced by the applicant. Security or defence certificate (11) The ASIO Minister may, by signed writing, certify that evidence proposed to be adduced or submissions proposed to be made by or on behalf of the Director‑General of Security or the relevant body are of such a nature that the disclosure of the evidence or submissions would be contrary to the public interest because it would prejudice security or the defence of Australia. (12) If such a certificate is given: (a) the applicant must not be present when the evidence is adduced or the submissions are made; and (b) a person representing the applicant must not be present when the evidence is adduced or the submissions are made unless the ASIO Minister consents. (13) A person representing the applicant commits an offence if: (a) the person is present when evidence to which a certificate given under subsection (11) relates is adduced or submissions to which such a certificate relates are made; and (b) the person discloses any such evidence or submission to the applicant or to any other person.

Protection of identity of person giving evidence (14) If the Director‑General of Security so requests, the Tribunal must do all things necessary to ensure that the identity of a person giving evidence on behalf of the Director‑General of Security is not revealed. Evidence and submissions (15) The Tribunal must first hear evidence adduced, and submissions made, by or on behalf of the Director‑General of Security and any evidence or submissions that the relevant body may wish to adduce or make. (16) The Tribunal must next permit the applicant, if the applicant so desires, to adduce evidence before, and make submissions to, the Tribunal. (17) The Tribunal may, on its own initiative and at any stage of the proceeding, invite a person to give evidence or cause a person to be summoned to give evidence. (18) If a person invited or summoned to give evidence under subsection (17) is: (a) an ASIO employee or ASIO affiliate; or (b) an officer or employee of the relevant body; subsection (11) applies as if any evidence to be given by the person were evidence proposed to be adduced by or on behalf of the Director‑General of Security or the relevant body, as the case may be. (19) If: (a) a party presents the party’s case to the Tribunal; and (b) after that case has been presented, the other party adduces evidence; and (c) the Tribunal thinks that, because of evidence adduced by the other party, the first‑mentioned party should be further heard; the Tribunal must give the first‑mentioned party an opportunity of adducing further evidence and submissions related to that further evidence, but must not give to the applicant any particulars of any evidence to which a certificate given under subsection (11) relates. (20) A member of the Tribunal may ask questions of a witness before the Tribunal and the presiding member may require a witness to answer any such question. Dismissal of application (21) If the applicant fails within a reasonable time: (a) to proceed with the application; or (b) to comply with a direction by the Tribunal in relation to the application; the President or an authorised member may dismiss the application without proceeding to review the security clearance decision or security clearance suitability assessment. Delegation (22) The ASIO Minister may, by signed writing, delegate the ASIO Minister’s power under subsection (11) to an ASIO employee, or an ASIO affiliate, who holds, or is acting in, a position in the Australian Security Intelligence Organisation that is equivalent to or higher than a position occupied by an SES employee. (23) In exercising a power under a delegation under subsection (22), the delegate must comply with any written directions of the ASIO Minister.

Scope (1) This section applies to a proceeding in the Security Division to which section 39A or 39BA applies. ASIO Minister may issue public interest certificate (2) If the ASIO Minister certifies, by signed writing, that the disclosure of information with respect to a matter stated in the certificate, or the disclosure of the contents of a document, would be contrary to the public interest: (a) because it would prejudice security or the defence or international relations of Australia; or (b) because it would involve the disclosure of deliberations or decisions of the Cabinet or a Committee of the Cabinet or of the Executive Council; or (c) for any other reason stated in the certificate 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 contents of the document should not be disclosed; the following provisions of this section have effect. Protection of information etc. (3) A person who is required by or under this Act to disclose the information or to produce the document to the Tribunal for the purposes of a proceeding is not excused from the requirement, but the Tribunal must, subject to subsections (4), (5) and (7) and section 46, do all things necessary to ensure: (a) that the information or the contents of the document are not disclosed to anyone other than a member of the Tribunal as constituted for the purposes of the proceeding; and (b) in respect of a document produced to the Tribunal—that the document is returned to the person by whom it was produced. (4) Subsection (3) does not apply in relation to disclosure to the Director‑General of Security or his or her representative if the reason stated in the certificate is the reason referred to in paragraph (2)(a). Disclosure of information etc. (5) If: (a) the ASIO Minister has certified in accordance with subsection (2) that the disclosure of information or of the contents of a document would be contrary to the public interest but the certificate does not state a reason referred to in paragraph (2)(a) or (b); and (b) the presiding member presiding is satisfied that the interests of justice outweigh the reason stated by the ASIO Minister; the presiding member may authorise the disclosure of the information, or of the contents of the document to, the applicant. What presiding member must consider in deciding whether to authorise disclosure of information etc. (6) In considering whether information or the contents of a document should be disclosed as mentioned in subsection (5): (a) the presiding member must take as the basis of his or her consideration the principle that it is desirable, in the interest of ensuring that the Tribunal performs its functions effectively, that the parties should be made aware of all relevant matters; but (b) the presiding member must pay due regard to any reason stated by the ASIO Minister in the certificate as a reason why the disclosure of the information or of the contents of the document, as the case may be, would be contrary to the public interest. Disclosure of information etc. to staff of Tribunal (7) This section does not prevent the disclosure of information or of the contents of a document to a member of the Tribunal’s staff in the course of the performance of his or her duties as a member of the Tribunal’s staff. Public interest (8) This section excludes the operation, apart from this section, of any rules of law relating to the public interest that would otherwise apply in relation to the disclosure of information or of the contents of documents in a proceeding. Copy of document (9) If the ASIO Minister has given a certificate under subsection (2) in respect of a document, this section applies in relation to a document that is a copy of the first‑mentioned document as if the copy were the original document. Certificate lodged under section 38A (10) For the purposes of this section, if the Director‑General of Security, in accordance with subsection 38A(1), (1A) or (1B), has lodged with the Tribunal a certificate of the ASIO Minister given under subsection 38(2), 83A(4) or 83C(6) of the Australian Security Intelligence Organisation Act 1979, the certificate is taken to be a certificate under subsection (2) of this section certifying to the Tribunal that the disclosure of the information to which the certificate relates would be contrary to the public interest because it would prejudice security. Duty of Tribunal (11) It is the duty of the Tribunal, even though there may be no relevant certificate under this section, to ensure, so far as it is able to do so, that, in or in connection with a proceeding, information is not communicated or made available to a person contrary to the requirements of security. (12) The ASIO Minister may, by signed writing, delegate the ASIO Minister’s power under subsection (2), to the extent it applies in relation to review of a security clearance decision or security clearance suitability assessment, to an ASIO employee, or an ASIO affiliate, who holds, or is acting in, a position in the Australian Security Intelligence Organisation that is equivalent to or higher than a position occupied by an SES employee. (13) In exercising a power under a delegation under subsection (12), the delegate must comply with any written directions of the ASIO Minister.

(1) This section applies to a proceeding in the Security Division for a review of a security clearance decision or a security clearance suitability assessment in respect of the Commonwealth’s highest level of security clearance. Application of standard relating to highest security clearance (2) If the Director‑General of Security presents to the Tribunal a certified copy of a standard (or part thereof) under subsection 39BA(4): (a) if the Director‑General has presented one certified copy of a standard (or part thereof)—the Tribunal must apply the standard (or part thereof) in its review of the decision or suitability assessment; or (b) if the Director‑General has presented more than one certified copy of a standard (or part thereof)—the Tribunal must, in its review of the decision or suitability assessment, apply the standard (or part thereof) certified by the Director‑General as being a current standard. Disclosure of documents or information (3) The Tribunal must, subject to this section and section 46, do all things necessary to ensure that a copy of any standard (or part thereof) presented to the Tribunal under subsection 39BA(4), or any information contained in it, is not disclosed to the applicant or any person other than: (a) a member of the Tribunal as constituted for the purposes of the proceeding; or (b) the Director‑General of Security or the Director‑General’s representative. (4) Subsection (5) applies if the Tribunal is provided with a document containing information (the sensitive information) certified in writing by the Director‑General of Security as being information that, in the opinion of the Director General or a person authorised by the Director‑General under subsection (9): (a) would be contrary to the public interest: (i) because it would prejudice security, the defence of the Commonwealth or the conduct of the Commonwealth’s international affairs; or (ii) because it would reveal information that has been disclosed to the Australian Security Intelligence Organisation in confidence; or (iii) for a reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information should not be disclosed; or (b) could reveal the methodology underlying a psychological assessment of the applicant. (5) The Tribunal must, subject to this section and section 46, do all things necessary to ensure that the sensitive information provided to the Tribunal is not disclosed to the applicant or any person other than: (a) a member of the Tribunal as constituted for the purposes of the proceeding; or (b) the Director‑General of Security or the Director‑General’s representative. (6) However, subsections (3) and (5) do not apply in relation to disclosure to the applicant or a person representing the applicant to the extent that the information: (a) has already been lawfully disclosed to the applicant; or (b) is disclosed to the applicant with the consent of the Director‑General of Security. (7) This section does not prevent the disclosure of a copy of any standard (or part thereof) presented to the Tribunal under subsection 39BA(4), any information contained in it, or any sensitive information referred to in subsection (4) of this section to a member of the Tribunal’s staff in the course of the performance of the staff member’s duties. (8) This section excludes the operation, apart from this section, of any rules of law relating to the public interest that would otherwise apply in relation to the disclosure in a proceeding of a copy of any standard (or part thereof) presented to the Tribunal under subsection 39BA(4), any information contained in it, or any sensitive information referred to in subsection (4) of this section. (9) The Director‑General of Security may, in writing, authorise a person for the purposes of subsection (4) if the person is an ASIO employee, or an ASIO affiliate, who holds, or is acting in, a position in the Australian Security Intelligence Organisation that is equivalent to or higher than a position occupied by an SES employee.

(1) For the purpose of reviewing a decision, the Tribunal may: (a) take evidence on oath or affirmation; (b) proceed in the absence of a party who has had reasonable notice of the proceeding; and (c) adjourn the proceeding from time to time. Oath or affirmation (2) The member who presides at the hearing of a proceeding before the Tribunal: (a) may require a person appearing before the Tribunal at that hearing to give evidence either to take an oath or to make an affirmation; and (b) may administer an oath or affirmation to a person so appearing before the Tribunal. Power to take evidence (3) The power (the evidence power) of the Tribunal under paragraph (1)(a) to take evidence on oath or affirmation in a particular proceeding may be exercised on behalf of the Tribunal by: (a) the presiding member in relation to the review; or (b) another person (whether or not a member) authorised in writing by that member. (4) The evidence power may be exercised: (a) inside or outside Australia; and (b) subject to any limitations or requirements specified by the Tribunal. (5) If a person other than the presiding member has the evidence power: (a) the person has, for the purpose of taking the evidence, the powers of the Tribunal and the presiding member under subsections (1) and (2); and (b) this Act applies in relation to the person, for the purpose of taking the evidence in the exercise of those powers, as if the person were the Tribunal or the presiding member. Incidental proceedings (7) The application of this section extends to a directions hearing under this Act or an alternative dispute resolution process under Division 3 (an incidental proceeding) as if it were a proceeding before the Tribunal and a power that under this section is conferred on the Tribunal or a member of the Tribunal for the purpose of reviewing a decision may be exercised for the purposes of an incidental proceeding by the person holding the directions hearing or the person conducting the alternative dispute resolution process, as the case may be.

(3) Where an order is in force under subsection (2) (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on request being made by a party to the relevant proceeding, make an order varying or revoking the first‑mentioned order. (4) Subject to subsection (5), the Tribunal shall not: (a) make an order under subsection (2) unless the person who made the decision to which the relevant proceeding relates has been given a reasonable opportunity to make a submission to the Tribunal, as the case may be, in relation to the matter; or (b) make an order varying or revoking an order in force under subsection (2) (including an order that has previously been varied on one or more occasions under subsection (3)) unless: (i) the person who made the decision to which the relevant proceeding relates; (ii) the person who requested the making of the order under subsection (2); and (iii) if the order under subsection (2) has previously been varied by an order or orders under subsection (3)—the person or persons who requested the making of the last‑mentioned order or orders; have been given a reasonable opportunity to make submissions to the Tribunal, as the case may be, in relation to the matter. (5) Subsection (4) does not prohibit the Tribunal from making an order without giving to a person referred to in that subsection a reasonable opportunity to make a submission to the Tribunal in relation to a matter if the Tribunal is satisfied that, by reason of the urgency of the case or otherwise, it is not practicable to give that person such an opportunity but, where an order is so made without giving such an opportunity to the person who made the decision to which the relevant proceeding relates, the order does not come into operation until a notice setting out the terms of the order is given to that person. (6) An order in force under subsection (2) (including an order that has previously been varied on one or more occasions under subsection (3)): (a) is subject to such conditions as are specified in the order; and (b) has effect until: (i) where a period for the operation of the order is specified in the order—the expiration of that period or, if the application for review is decided by the Tribunal before the expiration of that period, the decision of the Tribunal on the application for review comes into operation; or (ii) if no period is so specified—the decision of the Tribunal on the application for review comes into operation.

Dismissal if parties consent (1) Where all the parties to an application before the Tribunal for a review of a decision consent, the Tribunal may dismiss the application without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review. (1AAA) For the purposes of subsection (1), the consent of the agency party to a proceeding in the Social Services and Child Support Division is not required. Deemed dismissal—applicant discontinues or withdraws application (1A) A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn. (1AA) If a proceeding is in the Social Services and Child Support Division and is not a child support first review, the person may notify the Tribunal orally of the withdrawal or discontinuance. The person who receives the notification must make a written record of the day of receipt. (1B) If notification is given in accordance with subsection (1A) or (1AA), the Tribunal is taken to have dismissed the application without proceeding to review the decision. Dismissal if party fails to appear (2) If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may: (a) if the person who failed to appear is the applicant—dismiss the application without proceeding to review the decision; or (b) in any other case—direct that the person who failed to appear shall cease to be a party to the proceeding. Dismissal if decision is not reviewable (4) The Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal. (4A) For a proceeding in the Social Services and Child Support Division, an authorised officer may dismiss an application without the Tribunal proceeding to review the decision if the officer is satisfied that the decision is not reviewable by the Tribunal. Dismissal if applicant fails to proceed or fails to comply with Tribunal’s direction (5) If an applicant for a review of a decision fails within a reasonable time: (a) to proceed with the application; or (b) to comply with a direction by the Tribunal in relation to the application; the Tribunal may dismiss the application without proceeding to review the decision. Dismissal if party fails to appear—giving of appropriate notice (7) Before exercising its powers under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, alternative dispute resolution process or hearing, as the case may be. Reinstatement of application (8) If the Tribunal is taken to have dismissed an application under subsection (1B), a party to the proceeding (other than the applicant) may, within the period referred to in subsection (11), apply to the Tribunal for reinstatement of the application. (8A) If the Tribunal dismisses an application under subsection (2) (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), a party to the proceeding may, within the period referred to in subsection (11), apply to the Tribunal for reinstatement of the application. (9) If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances. (10) If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding made within the period referred to in subsection (11) or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances. (11) For the purposes of subsections (8), (8A) and (10), the period is: (a) 28 days after the party receives notification that the application has been dismissed, unless paragraph (b) applies; or (b) if the party requests an extension—such longer period as the Tribunal, in special circumstances, allows.

(1) If, at any stage of a proceeding for a review of a decision: (a) agreement is reached between the parties or their representatives as to the terms of a decision of the Tribunal in the proceeding or in relation to a part of the proceeding or a matter arising out of the proceeding that would be acceptable to the parties (other than an agreement reached in the course of an alternative dispute resolution process under Division 3); and (b) the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and (c) the Tribunal is satisfied that a decision in those terms or consistent with those terms would be within the powers of the Tribunal; the Tribunal may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case. (2) If the agreement reached is an agreement as to the terms of a decision of the Tribunal in the proceeding, the Tribunal may make a decision in accordance with those terms without holding a hearing of the proceeding or, if a hearing has commenced, without completing the hearing. (3) If the agreement relates to a part of the proceeding or a matter arising out of the proceeding, the Tribunal may in its decision in the proceeding give effect to the terms of the agreement without, if it has not already done so, dealing at the hearing of the proceeding with the part of the proceeding or the matter arising out of the proceeding, as the case may be, to which the agreement relates. Limitation for administrative assessments of child support (4) The Tribunal must not act in accordance with subsection (2) or (3) to give effect to an agreement in relation to a departure from administrative assessment of child support in accordance with Part 6A of the Child Support (Assessment) Act 1989, unless it is satisfied that it is just and equitable and otherwise proper to do so, having regard to the matters set out in subsections 117(4) and (5) of that Act. Variation or revocation of decisions other than on child support first reviews (5) The Tribunal may vary or revoke so much of a decision as it made in accordance with subsection (2) or (3) if: (a) the parties, or their representatives, reach agreement on the variation or revocation; and (b) the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and (c) the variation or revocation appears appropriate to the Tribunal; and (d) in the case of a variation—the Tribunal is satisfied that it would have been within the powers of the Tribunal to have made the decision as varied. (6) Subsection (5) does not apply to a decision made on child support first 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.

Scope (1) This section applies to a review in the Security Division of a security assessment. Findings (2) Upon the conclusion of a review, the Tribunal must make and record its findings in relation to the security assessment, and those findings may state the opinion of the Tribunal as to the correctness of, or justification for, any opinion, advice or information contained in the assessment. (3) The Tribunal must not make findings in relation to an assessment that would, under section 61 of the Australian Security Intelligence Organisation Act 1979, have the effect of superseding any information that is, under subsection 37(2) of that Act, taken to be part of the assessment unless those findings state that, in the Tribunal’s opinion, the information is incorrect, is incorrectly represented or could not reasonably be relevant to the requirements of security. Copies of findings to be given to parties etc. (4) Subject to subsection (5), the Tribunal must cause copies of its findings to be given to the applicant, the Director‑General of Security, the Commonwealth agency, State or authority of a State to which the assessment was given and the ASIO Minister. (5) The Tribunal may direct that the whole or a particular part of its findings, so far as they relate to a matter that has not already been disclosed to the applicant, is not to be given to the applicant or is not to be given to the Commonwealth agency, State or authority of a State to which the assessment was given. Applicant may publish findings (6) Subject to any direction by the Tribunal, the applicant is entitled to publish, in any manner that he or she thinks fit, the findings of the Tribunal so far as they have been given to him or her. Tribunal may attach comments to findings (7) The Tribunal may attach to a copy of findings to be given to the Director‑General under this section, any comments the Tribunal wishes to make on matters relating to procedures or practices of the Australian Security Intelligence Organisation that have come to the Tribunal’s attention as a result of a review. (8) The Tribunal must give the Minister a copy of any comments attached as mentioned in subsection (7).

Scope (1) This section applies to a review in the Security Division of a security clearance decision or security clearance suitability assessment. Findings (2) Upon the conclusion of a review, the Tribunal must make and record its findings in relation to the security clearance decision or security clearance suitability assessment, and those findings may state the opinion of the Tribunal as to the correctness of, or justification for any recommendation, opinion, advice or information contained in the decision or suitability assessment. (3) The Tribunal must not make findings in relation to a security clearance decision or security clearance suitability assessment that would, under subsection 83D(1) of the Australian Security Intelligence Organisation Act 1979, have the effect of superseding any information that is, under section 82G or 83C of that Act, taken to be part of the decision or suitability assessment unless those findings state that, in the Tribunal’s opinion, the information is incorrect, is incorrectly represented or could not reasonably be relevant to the requirements of security. Copies of findings to be given to parties etc. (4) Subject to subsection (5), the Tribunal must cause copies of its findings to be given to the applicant, the Director‑General of Security, the ASIO Minister and the following body (the relevant body): (a) for findings in relation to a security clearance decision—the sponsoring agency for the security clearance in relation to which the security clearance decision was made; (b) for findings in relation to a security clearance suitability assessment—the security vetting agency to which the suitability assessment was given. (5) The Tribunal may direct that the whole or a particular part of its findings, so far as they relate to a matter that has not already been disclosed to the applicant, is not to be given to the applicant or is not to be given to the relevant body. Applicant may publish findings (6) Subject to any direction by the Tribunal, the applicant is entitled to publish, in any manner that the applicant thinks fit, the findings of the Tribunal so far as they have been given to the applicant. Tribunal may attach comments to findings (7) The Tribunal may attach to a copy of findings to be given to the Director‑General under this section any comments the Tribunal wishes to make on matters relating to procedures or practices of the Australian Security Intelligence Organisation that have come to the Tribunal’s attention as a result of a review. (8) The Tribunal must give the Minister a copy of any comments attached as mentioned in subsection (7).

When and how appeal instituted (2A) An appeal by a person under subsection (1) or (2) shall be instituted: (a) not later than the twenty‑eighth day after the day on which a document setting out the terms of the decision of the Tribunal is given to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows; and (b) in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976. (2B) In the interest of justice, the grounds on which the Federal Court of Australia may allow further time under paragraph (2A)(a) include, but are not limited to, the following grounds: (a) if the Tribunal made an oral statement as to the reasons for the decision and afterwards gave a written statement of reasons for the decision—the written statement contains reasons that were not mentioned in the oral statement; (b) the text of the decision or a statement of reasons for the decision has been altered under section 43AA. Jurisdiction (3) The Federal Court of Australia has jurisdiction to hear and determine appeals instituted in that Court in accordance with subsections (1) and (2) and that jurisdiction: (a) may be exercised by that Court constituted as a Full Court; (b) shall be so exercised if: (i) the Tribunal’s decision was given by the Tribunal constituted by a member who was, or by members at least one of whom was, a Deputy President who is not a Judge; and (ii) after consulting the President, the Chief Justice of that Court considers that it is appropriate for the appeal from the decision to be heard and determined by that Court constituted as a Full Court; and (c) shall be so exercised if the Tribunal’s decision was given by the Tribunal constituted by a member who was, or by members at least one of whom was, a Judge. Powers of Federal Court (4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision. (5) Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court. Constitution of Tribunal if Federal Court remits case etc. (6) If the Federal Court of Australia makes an order remitting a case to be heard and decided again by the Tribunal: (a) the Tribunal need not be constituted for the hearing by the person or persons who made the decision to which the appeal relates; and (b) whether or not the Tribunal is reconstituted for the hearing—the Tribunal may, for the purposes of the proceeding, have regard to any record of the proceeding before the Tribunal prior to the appeal (including a record of any evidence taken in the proceeding), so long as doing so is not inconsistent with the directions of the Court. Federal Court may make findings of fact (7) If a party to a proceeding before the Tribunal appeals to the Federal Court of Australia under subsection (1), the Court may make findings of fact if: (a) the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law); and (b) it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to: (i) the extent (if any) to which it is necessary for facts to be found; and (ii) the means by which those facts might be established; and (iii) the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and (iv) the relative expense to the parties of the Court, rather than the Tribunal, making the findings of fact; and (v) the relative delay to the parties of the Court, rather than the Tribunal, making the findings of fact; and (vi) whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal, to make the findings of fact; and (vii) such other matters (if any) as the Court considers relevant. (8) For the purposes of making findings of fact under subsection (7), the Federal Court of Australia may: (a) have regard to the evidence given in the proceeding before the Tribunal; and (b) receive further evidence. (9) Subsection (7) does not limit the Federal Court of Australia’s power under subsection (5) to make an order remitting the case to be heard and decided again by the Tribunal. (10) The jurisdiction of the Federal Court of Australia under subsection (3) includes jurisdiction to make findings of fact under subsection (7).

Transfer of appeals (1) If an appeal under subsection 44(1) or (2) is pending in the Federal Court of Australia, the Federal Court of Australia may, by order, transfer the appeal from the Federal Court of Australia to the Federal Circuit and Family Court of Australia (Division 2). (2) However, the Federal Court of Australia must not transfer an appeal to the Federal Circuit and Family Court of Australia (Division 2) if the appeal: (a) relates to a decision given by the Tribunal constituted by a member who was, or by members at least one of whom was, a presidential member; or (c) is of a kind specified in the regulations. (3) The Federal Court of Australia may transfer an appeal under subsection (1): (a) on the application of a party to the appeal; or (b) on its own initiative. Federal Court Rules (4) Rules of Court made under the Federal Court of Australia Act 1976 may make provision in relation to transfers of appeals to the Federal Circuit and Family Court of Australia (Division 2) under subsection (1). (5) In particular, Rules of Court made under the Federal Court of Australia Act 1976 may set out factors that are to be taken into account by the Federal Court of Australia in deciding whether to transfer appeals to the Federal Circuit and Family Court of Australia (Division 2) under subsection (1). (6) Before Rules of Court are made for the purposes of subsection (4) or (5), the Federal Court of Australia must consult the Federal Circuit and Family Court of Australia (Division 2). Matters to which the Federal Court must have regard in transferring appeal (7) In deciding whether to transfer an appeal to the Federal Circuit and Family Court of Australia (Division 2) under subsection (1), the Federal Court of Australia must have regard to: (a) any Rules of Court made for the purposes of subsection (5); and (b) whether proceedings in respect of an associated matter are pending in the Federal Circuit and Family Court of Australia (Division 2); and (c) whether the resources of the Federal Circuit and Family Court of Australia (Division 2) are sufficient to hear and determine the appeal; and (d) the interests of the administration of justice. Jurisdiction (8) The Federal Circuit and Family Court of Australia (Division 2) has jurisdiction to hear and determine appeals transferred to it under subsection (1). Powers etc. (9) Subsections 44(4), (5) and (6) apply in relation to the hearing and determination of an appeal transferred to the Federal Circuit and Family Court of Australia (Division 2) under subsection (1) of this section in a corresponding way to the way in which they apply to the hearing and determination of an appeal by the Federal Court of Australia. No appeal from decision of Federal Court (10) An appeal does not lie from a decision of the Federal Court of Australia in relation to the transfer of an appeal under subsection (1). Federal Circuit and Family Court of Australia (Division 2) may make findings of fact (11) If an appeal under subsection 44(1) is transferred to the Federal Circuit and Family Court of Australia (Division 2) under subsection (1) of this section, subsections 44(7), (8) and (9) apply in relation to the making of findings of fact by the Federal Circuit and Family Court of Australia (Division 2) in a corresponding way to the way in which they apply to the making of findings of fact by the Federal Court of Australia. (12) The jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) under subsection (8) of this section includes jurisdiction to make findings of fact under subsection 44(7) (as applied by subsection (11) of this section).

Appeal does not affect operation of Tribunal’s decision (1) Subject to this section, the institution of an appeal to the Federal Court of Australia from a decision of the Tribunal does not affect the operation of the decision or prevent the taking of action to implement the decision. Stay orders (2) Where an appeal is instituted in the Federal Court of Australia from a decision of the Tribunal, that Court or a Judge of that Court may make such order or orders staying or otherwise affecting the operation or implementation of either or both of the following: (a) the decision of the Tribunal or a part of that decision; and (b) the decision to which the proceeding before the Tribunal related or a part of that decision; as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal. (2A) If an appeal from a decision of the Tribunal is transferred from the Federal Court of Australia to the Federal Circuit and Family Court of Australia (Division 2), the Federal Circuit and Family Court of Australia (Division 2) or a Judge of that Court may make such order or orders staying or otherwise affecting the operation or implementation of either or both of the following: (a) the decision of the Tribunal or a part of that decision; (b) the decision to which the proceeding before the Tribunal related or a part of that decision; as the Federal Circuit and Family Court of Australia (Division 2) or Judge of the Court considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal. (3) If an order is in force under subsection (2) or (2A) (including an order that has previously been varied on one or more occasions under this subsection): (a) the Federal Court of Australia or a Judge of that Court; or (b) the Federal Circuit and Family Court of Australia (Division 2) or a Judge of that Court; may make an order varying or revoking the first‑mentioned order. (4) An order in force under subsection (2) or (2A) (including an order that has previously been varied on one or more occasions under subsection (3)): (a) is subject to such conditions as are specified in the order; and (b) has effect until: (i) where a period for the operation of the order is specified in the order—the expiration of that period or, if a decision is given on the appeal before the expiration of that period, the giving of the decision; or (ii) where no period is so specified—the giving of a decision on the appeal.

Sending of documents to courts (1) When an appeal is instituted in the Federal Court of Australia in accordance with section 44 or a question of law is referred to that Court in accordance with section 45: (a) the Tribunal shall, despite subsections 36(2), 36B(2) and 39B(3) of this Act, and subsection 130H(3) of the Foreign Acquisitions and Takeovers Act 1975, and subsection 36L(4) of the Australian Crime Commission Act 2002, cause to be sent to the Court all documents that were before the Tribunal in connexion with the proceeding to which the appeal or reference relates and are relevant to the appeal or reference; and (b) except in the case of an appeal that is transferred to the Federal Circuit and Family Court of Australia (Division 2)—at the conclusion of the proceeding before the Federal Court of Australia in relation to the appeal or reference, the Court shall cause the documents to be returned to the Tribunal; and (c) in the case of an appeal that is transferred to the Federal Circuit and Family Court of Australia (Division 2): (i) the Federal Court of Australia must cause the documents to be sent to the Federal Circuit and Family Court of Australia (Division 2); and (ii) at the conclusion of the proceedings before the Federal Circuit and Family Court of Australia (Division 2) in relation to the appeal, the Federal Circuit and Family Court of Australia (Division 2) must cause the documents to be returned to the Tribunal. Disclosure of documents by courts (2) If there is in force in respect of any of the documents a certificate in accordance with subsection 28(2), 36(1), 36B(1) or 39B(2) of this Act, or subsection 130H(3) of the Foreign Acquisitions and Takeovers Act 1975, or subsection 36L(2) of the Australian Crime Commission Act 2002, certifying that the disclosure of matter contained in the document would be contrary to the public interest, the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2) shall, subject to subsection (3), do all things necessary to ensure that the matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding. However, this subsection does not prevent the Federal Court of Australia from causing the document to be sent to the Federal Circuit and Family Court of Australia (Division 2) as mentioned in subparagraph (1)(c)(i).

(3) If: (a) the certificate referred to in subsection (2) relating to matter contained in the document does not specify a reason referred to in paragraph 28(2)(a) or (b), 36(1)(a) or (b), 36B(1)(a), or 39B(2)(a) of this Act or subsection 130H(3) of the Foreign Acquisitions and Takeovers Act 1975, or paragraph 36L(2)(a) or (b) of the Australian Crime Commission Act 2002, as the case may be; (b) a question for decision by the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2) is whether the matter should be disclosed to some or all of the parties to the proceeding before the Tribunal in respect of which the appeal was instituted or the reference was made; and (c) the court decides that the matter should be so disclosed; the court shall permit the part of the document in which the matter is contained to be inspected accordingly. (3A) If the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2) is sent: (a) a copy of any standard (or part thereof) referred to in subsection 39C(2) of this Act; or (b) a document containing any sensitive information referred to in subsection 39C(4); the relevant court must, subject to this section, do all things necessary to ensure that the copy of any standard (or part thereof) or any information contained in it, or the sensitive information, is not disclosed to any person other than: (a) a member of the court as constituted for the purposes of the proceeding; or (b) the Director‑General of Security or the Director‑General’s representative. (3B) However, subsection (3A) does not apply in relation to disclosure to the person who was the applicant, or a person representing the person who was the applicant, in the proceedings before the Tribunal to the extent that the information: (a) has already been lawfully disclosed to the person; or (b) is disclosed to the person with the consent of the Director‑General of Security. (4) Nothing in this section prevents the disclosure of information or of matter contained in a document to an officer of the court in the course of the performance of his or her duties as an officer of the court.

(1) The functions of the Council are: (aa) to keep the Commonwealth administrative law system under review, monitor developments in administrative law and recommend to the Minister improvements that might be made to the system; and (ab) to inquire into the adequacy of the procedures used by authorities of the Commonwealth and other persons who exercise administrative discretions or make administrative decisions, and consult with and advise them about those procedures, for the purpose of ensuring that the discretions are exercised, or the decisions are made, in a just and equitable manner; and (a) to ascertain, and keep under review, the classes of administrative decisions that are not the subject of review by a court, tribunal or other body; and (b) to make recommendations to the Minister as to whether any of those classes of decisions should be the subject of review by a court, tribunal or other body and, if so, as to the appropriate court, tribunal or other body to make that review; and (c) to inquire into the adequacy of the law and practice relating to the review by courts of administrative decisions and to make recommendations to the Minister as to any improvements that might be made in that law or practice; and (d) to inquire into: (i) the qualification required for membership of authorities of the Commonwealth, and the qualifications required by other persons, engaged in the review of administrative decisions; and (ii) the extent of the jurisdiction to review administrative decisions that is conferred on those authorities and other persons; and (iii) the adequacy of the procedures used by those authorities and other persons in the exercise of that jurisdiction; and to consult with and advise those authorities and other persons about the procedures used by them as mentioned in subparagraph (iii) and recommend to the Minister any improvements that might be made in respect of any of the matters referred to in subparagraphs (i), (ii) and (iii); and (e) to make recommendations to the Minister as to the manner in which tribunals engaged in the review of administrative decisions should be constituted; and (f) to make recommendations to the Minister as to the desirability of administrative decisions that are the subject of review by tribunals other than the Administrative Appeals Tribunal being made the subject of review by the Administrative Appeals Tribunal; and (g) to facilitate the training of members of authorities of the Commonwealth and other persons in exercising administrative discretions or making administrative decisions; and (h) to promote knowledge about the Commonwealth administrative law system; and (i) to consider, and report to the Minister on, matters referred to the Council by the Minister. (2) The Council may do all things necessary or convenient to be done for or in connexion with the performance of its functions. (3) If the Council holds an inquiry, or gives any advice, referred to in paragraph (1)(ab), the Council must give the Minister a copy of any findings made by the Council in the inquiry or a copy of the advice, as the case may be.

(a) a person who is or has been a member of the Tribunal;
(b) a person who is or has been an officer of the Tribunal;
(c) a person who is or has been a member of the staff of the Tribunal;
(d) a person who is or has been engaged by the Tribunal to provide services to the Tribunal during a proceeding before the Tribunal.

(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.

Part IVReviews by the Tribunal of decisions

Get a plain-English read of Part IV

Part I—Preliminary

1 Short title

2 Commencement

2A Tribunal’s objective

3 Interpretation

4 Extension to external Territories

Part II—Establishment of the Administrative Appeals Tribunal

Division 1—Establishment of Tribunal

5 Establishment of Tribunal

5A Membership

Division 2—Members of Tribunal

6 Appointment of members of Tribunal

7 Qualifications for appointment

7A Appointment of a Judge as a presidential member not to affect tenure etc.

8 Term of appointment

9 Remuneration and allowances

10 Acting appointments

10A Delegation

10B Oath or affirmation of office

11 Outside employment

12 Leave of absence

13 Termination of appointment (not Judges)

14 Disclosure of interests by members

15 Resignation

Part III—Organisation of the Tribunal

Division 1—Divisions of the Tribunal

Subdivision A—Divisions of the Tribunal

17A Divisions of the Tribunal

17B Allocation of business to Divisions

Subdivision B—Assignment of members to Divisions

17C Assignment of members to Divisions

17CA Assignment to Freedom of Information Division

17D Assignment to Migration and Refugee Division

17E Assignment to National Disability Insurance Scheme Division

17F Assignment to Security Division

17G Assignment to Social Services and Child Support Division

17H Assignment to Taxation and Commercial Division

17J Validity

Subdivision C—Division heads and Deputy Division heads

17K Division heads

17L Deputy Division heads

Division 2—Arrangement of business of Tribunal

18A Arrangement of business

18B President’s directions—arrangement of business

18C Sittings of Tribunal

Division 3—Constitution of Tribunal

Subdivision A—General

19A President’s directions—constitution

19B Constitution

19C Constitution for review of taxing of costs

19D Reconstitution

Subdivision B—Security Division

19E Constitution of Security Division

19F Constitution of Security Division for proceedings to review certain Archives decisions

Part IIIA—Management of the Tribunal

Division 1—Management responsibilities of President and Registrar

24A Management of administrative affairs of Tribunal

24B Registrar of the Tribunal

Division 1A—Application of the finance law

24BA Application of the finance law

Division 2—Appointment, powers etc. of Registrar

24C Appointment of Registrar

24D Powers of the Registrar

24E Remuneration of Registrar

24F Terms and conditions of appointment of Registrar

24G Leave of absence

24H Resignation

24J Outside employment of Registrar

24K Termination of appointment

24L Disclosure of interests by Registrar

24M Acting Registrar

Division 3—Other officers and staff of Tribunal

24N Staff

24P Functions of officers and staff members of the Tribunal

24PA Officers of the Tribunal

24Q Engagement of consultants etc.

Division 4—Miscellaneous administrative matters

24R Annual report