Administrative Review Tribunal Act 2024

Part 1—Preliminary

1 Short title

This Act is the Administrative Review Tribunal Act 2024.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

<table cellspacing="0" cellpadding="0" style="width:355.55pt; border-collapse:collapse"><thead><tr><td colspan="3" style="width:344.85pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Commencement information</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Column 1</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Column 2</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Column 3</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Provisions</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Commencement</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Date/Details</span></p></td></tr></thead><tbody><tr><td style="width:74.35pt; border-top:1.5pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1.</span><span> </span><span>The whole of this Act</span></p></td><td style="width:180.7pt; border-top:1.5pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>A single day to be fixed by Proclamation.</span></p><p class="Tabletext"><span>However, if the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the first day of the first calendar month to start after the end of that period.</span></p></td><td style="width:68.4pt; border-top:1.5pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>14</span><span> </span><span>October 2024</span></p><p class="Tabletext"><span>(F2024N00804)</span></p></td></tr></tbody></table>

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3 Simplified outline of this Act

A large number of Acts and legislative instruments allow people to apply to the Administrative Review Tribunal for review of decisions made under them. The Tribunal is established to review these decisions (known as reviewable decisions).

The Tribunal has a President, Deputy Presidents, senior members and general members. There is also a Principal Registrar and staff. This Act deals with their appointment, functions and terms and conditions.

This Act contains the standard provisions applying to Tribunal processes. Other legislation can include provisions that apply in addition to, or instead of, these standard provisions.

Broadly, a Tribunal process for review of a reviewable decision includes the following stages:

(a) a person whose interests are affected by a reviewable decision applies to the Tribunal for review;

(b) the applicant, the decision‑maker and potentially other persons become parties to the proceeding for the review;

(c) the President constitutes the Tribunal for the purposes of the proceeding by deciding which member or members will exercise the Tribunal’s powers for the proceeding;

(d) the Tribunal conducts the proceeding, including obtaining evidence and holding hearings, directions hearings and dispute resolution processes;

(e) the Tribunal makes its decision.

Tribunal powers in relation to the proceeding are exercised by the Tribunal constituted for the purposes of the proceeding or, in some circumstances by the President or by members, the Principal Registrar, registrars and staff members authorised by the President.

The Tribunal reviews decisions on their merits. It may affirm, vary or set aside a decision‑maker’s decision. If the Tribunal sets aside a decision, it may make a substitute decision or remit the matter to the decision‑maker to reconsider as ordered or recommended by the Tribunal.

After the Tribunal makes its decision:

(a) in some circumstances, a party may apply to refer the matter to the guidance and appeals panel for another review; and

(b) a party may appeal to the Federal Court, on a question of law, from the Tribunal’s decision.

Special rules apply when the Tribunal’s powers in relation to a proceeding are exercised in the Intelligence and Security jurisdictional area. This occurs if the proceeding relates to an intelligence and security decision or the President otherwise directs (for example where the President is satisfied national security information would be involved).

There are requirements for decision‑makers in relation to giving notice of decisions and review rights and providing statements of reasons. These apply whether or not an application has been made to the Tribunal for review of the decision.

This Act also establishes the Administrative Review Council, with functions relating to the Commonwealth administrative law system. The Council consists of the President, the Commonwealth Ombudsman, the Australian Information Commissioner and other members appointed by the Governor‑General. This Act deals with the appointed members’ appointment, functions and terms and conditions.

4 Definitions

In this Act:

accessible, in relation to the Tribunal, means enables persons to apply to the Tribunal and to participate effectively in proceedings in the Tribunal.

Note: Examples of areas where arrangements may be made in relation to accessibility include the following:

(a) premises, facilities and technology;
(b) ease of locating and understanding information about the Tribunal and documents relating to proceedings;
(c) adjustments that can reasonably be made to accommodate a person’s needs, such as interpreter services for hearings.

ACIC means the Australian Criminal Intelligence Commission established by the Australian Crime Commission Act 2002.

adduce, in relation to evidence, includes give.

administrative affairs, in relation to the Tribunal, has a meaning affected by subsection 224(2).

AFP Commissioner means the Commissioner of Police (within the meaning of the Australian Federal Police Act 1979).

agency head:

(a) in relation to a criminal intelligence assessment, means the Chief Executive Officer of the Australian Crime Commission; or
(b) in relation to an exempt security record decision that is a decision of a kind mentioned in subsection 57A(1) of the Freedom of Information Act 1982 in respect of an exempt document (within the meaning of that Act), means the principal officer of the agency, or the Minister, to whom the request for access to the document concerned was made; or
(c) in relation to an exempt security record decision that is a decision of the National Archives of Australia, means the Director‑General of the National Archives of Australia; or
(d) in relation to a foreign acquisitions and takeovers decision, means the Treasurer; or
(f) in relation to a security assessment, means the Director‑General of Security; or
(g) in relation to a security clearance decision, means the Director‑General of Security; or
(h) in relation to a security clearance suitability assessment, means the Director‑General of Security.

agency within the national intelligence community has the same meaning as in the Office of National Intelligence Act 2018.

appear, in relation to a Tribunal case event, has a meaning affected by section 73.

appointed member means a member of the Council mentioned in paragraph 247(1)(d).

ART social services decision: see subsection 131D(3).

ASIO means the Australian Security Intelligence Organisation.

ASIO Act means the Australian Security Intelligence Organisation Act 1979.

ASIO Minister means the Minister administering the ASIO Act.

authorised person, in relation to the performance or exercise of a function or power of the Tribunal, means a person authorised under Subdivision B of Division 4 of Part 11 to perform or exercise the function or power.

code of conduct means the code of conduct determined under section 201.

Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013.

corporate and registry services, of the Tribunal: see subsection 226(2).

Council means the Administrative Review Council.

Council member means any member of the Council including the Chair of the Council.

criminal intelligence assessment means an adverse criminal intelligence assessment within the meaning of Part III of the Australian Crime Commission Act 2002.

decision includes the following:

(a) making, suspending, revoking or refusing to make an order or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article;
(g) doing or refusing to do any other act or thing.

decision‑maker: see section 14.

Deputy President means a Judicial Deputy President or a Non‑Judicial Deputy President.

dispute resolution process means a procedure or service for the voluntary resolution of disputes, and includes:

(a) conferencing; and
(b) mediation; and
(c) neutral evaluation; and
(d) conciliation; and
(e) a procedure or service specified in the practice directions;

but does not include: (f) arbitration; or (g) court procedures or services.

election notice: see subsection 60(1).

eligible social services decision: see section 131C.

engage in conduct means:

(a) do an act; or
(b) omit to perform an act.

entrusted person means a person who is or has been:

(a) a member; or
(b) the Principal Registrar; or
(c) a staff member; or
(d) a person engaged to provide services to the Tribunal.

exempt security record decision means:

(a) a decision of a kind mentioned in subsection 57A(1) of the Freedom of Information Act 1982 in respect of a document that is an exempt document (within the meaning of that Act) because of section 33 of that Act; or
(b) a decision of the National Archives of Australia in respect of access to:
(i) a record claimed to be an exempt record under the Archives Act 1983 because it contains information or matter of a kind mentioned in paragraph 33(1)(a) or (b) or subsection 33(4A) or (4C) of that Act; or
(ii) a record of ASIO; or
(iii) a record of the ACIC relating to a criminal intelligence assessment (within the meaning of Part III of the Australian Crime Commission Act 2002).

Federal Court means the Federal Court of Australia.

foreign acquisitions and takeovers decision means a decision under section 79A of the Foreign Acquisitions and Takeovers Act 1975 that a national security risk exists in relation to an action.

general member means a person appointed as a general member under section 208.

guidance and appeals panel: the Tribunal is constituted for the purposes of a proceeding by the guidance and appeals panel if the Tribunal is constituted for the purposes of the proceeding in accordance with Subdivision C of Division 4 of Part 4.

guidance and appeals panel application means an application taken to be made under subsection 130(2).

guidance and appeals panel proceeding: a proceeding in the Tribunal in relation to an application is a guidance and appeals panel proceeding if:

(a) the application is a guidance and appeals panel application; or
(b) the President refers the application to the guidance and appeals panel.

hearing of a proceeding: the hearing of a proceeding in the Tribunal does not include a directions hearing in relation to the proceeding.

intelligence and security decision means:

(a) a criminal intelligence assessment; or
(b) an exempt security record decision; or
(c) a foreign acquisitions and takeovers decision; or
(e) a security assessment; or
(f) a security clearance decision; or
(g) a security clearance suitability assessment.

Judge means a Judge of a court created by the Parliament.

Judicial Deputy President means a person appointed as a Judicial Deputy President under section 206.

jurisdictional area means a jurisdictional area of the Tribunal established by subsection 196(1).

jurisdictional area leader:

(a) in relation to a jurisdictional area—means a person assigned under subsection 197(1) to be a leader of the jurisdictional area; and
(b) in relation to a list—means the jurisdictional area leader of the jurisdictional area within which the list is established.

law enforcement or intelligence interests has the same meaning as in Part III of the Australian Crime Commission Act 2002.

legal practitioner means a barrister, a solicitor, a barrister and solicitor or a legal practitioner of the High Court or of the Supreme Court of a State or Territory.

list means a list established within a jurisdictional area by the President under subsection 196(2).

litigation supporter, in relation to a party to a proceeding, means a person appointed to be a litigation supporter for the party under section 67.

made under an Act: an instrument is made under an Act if it is made under a provision of an Act or made under a provision of an instrument that is made under an Act.

member means any of the following members of the Tribunal:

(a) the President;
(b) a Deputy President;
(c) a senior member;
(d) a general member.

merit‑based: an assessment process for an appointment to an office is merit‑based only if:

(a) an assessment is made of the comparative suitability of the candidates for the duties of the office, using a competitive selection process; and
(b) the assessment is based on the relationship between the candidates’ skills, expertise, experience and knowledge and the skills, expertise, experience and knowledge required for the duties of the office; and
(c) the assessment takes into account the need for a diversity of skills, expertise, lived experience and knowledge within the Tribunal.

national security information has the same meaning as in the National Security Information (Criminal and Civil Proceedings) Act 2004.

Non‑Judicial Deputy President means a person appointed as a Non‑Judicial Deputy President under section 207.

non‑judicial member means a member who is not a Judge.

non‑participating party: see section 61.

Norfolk Island enactment means:

(a) an enactment (within the meaning of the Norfolk Island Act 1979); or
(b) an instrument (including rules, regulations or by‑laws) made under such an enactment;

and includes a Norfolk Island enactment as amended by another Norfolk Island enactment.

official has the same meaning as in the Public Governance, Performance and Accountability Act 2013.

paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise), other than service in the Australian Defence Force.

parliament means:

(a) a House of the Parliament of the Commonwealth, of a State or of a Territory; or
(b) a committee of a House or the Houses of the Parliament of the Commonwealth, of a State or of a Territory.

participation notice: see section 62.

performance standard means the performance standard determined under section 202.

person whose interests are affected by a decision has a meaning affected by section 15.

practice directions means practice directions made under section 36.

President means the person appointed as the President under section 205.

presiding member, in relation to a proceeding, means the member the President directs under subsection 37(2) is to preside for the purposes of the proceeding.

Principal Registrar means the person appointed as the Chief Executive Officer and Principal Registrar under section 227.

proceeding, in relation to the Tribunal, includes a proceeding in the Tribunal in relation to any of the following:

(a) an application for review of a reviewable decision;
(b) an application under subsection 270(2) (applying to Tribunal to obtain reasons for reviewable decision);
(c) an application under subsection 271(2) (applying to Tribunal to obtain adequate statement of reasons);
(d) any other application to the Tribunal under this Act, any other Act or any instrument made under an Act;
(e) any matter referred to the Tribunal for inquiry or review under this Act, any other Act or any instrument made under an Act;
(f) an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or a matter, mentioned in a preceding paragraph.

produce includes permit access to.

protected document: see subsection 274(3).

protected information: see subsection 274(4).

reconstitute the Tribunal, in relation to a proceeding, means revoke the direction made under subsection 37(1) in relation to the proceeding and make another direction under that subsection in relation to the proceeding.

registrar means a person appointed as a registrar under section 237.

relevant body: see subsection 137(2).

responsible Minister, in relation to an intelligence and security decision, means the Minister, or any of the Ministers, administering the provision under which the decision is made.

reviewable decision: see section 12.

review pathway: see subsection 266(3).

rules means the rules made under section 295.

salaried member means a member who is appointed on a salaried basis.

second review: see subsection 131D(1).

security assessment means:

(a) an adverse security assessment within the meaning of Part IV of the ASIO Act; or
(b) a qualified security assessment within the meaning of Part IV of the ASIO Act.

security clearance decision has the same meaning as in the ASIO Act.

security clearance suitability assessment has the same meaning as in the ASIO Act.

security vetting agency has the same meaning as in Part IVA of the ASIO Act.

senior member means a person appointed as a senior member under section 208.

serious misconduct includes, but is not limited to, the following:

(a) conduct that constitutes unlawful discrimination (within the meaning of the Australian Human Rights Commission Act 1986);
(b) serious or repeated bullying or harassment of a person.

sessional member means a member who is appointed on a sessional basis.

sponsoring agency has the same meaning as in Part IVA of the ASIO Act.

staff member means:

(a) a member of the staff of the Tribunal; or
(b) a person whose services are made available to the Tribunal under section 239.

statement of reasons, for a decision, means a written statement in relation to the decision that:

(a) sets out the findings on material questions of fact; and
(b) refers to the evidence or other material on which the findings are based; and
(c) explains the reasons for the decision.

State or Territory government entity means:

(a) a Department of a State or Territory; or
(b) a body (whether incorporated or not) established for a public purpose by or under a law of a State or Territory.

Tribunal means the Administrative Review Tribunal established by section 8.

Tribunal Advisory Committee means the Tribunal Advisory Committee established by section 236.

Tribunal case event, in relation to a proceeding in the Tribunal, means:

(a) the hearing, or part of the hearing, of the proceeding; or
(b) a directions hearing, or part of a directions hearing, in relation to the proceeding; or
(c) a dispute resolution process, or part of a dispute resolution process, under Subdivision C of Division 6 of Part 4 in relation to the proceeding.

Tribunal guidance decision: see subsection 109(1).

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

General rules (1) The application of a provision of this Act is subject to a contrary intention in another Act.

Note: For example, the Act under which a reviewable decision is made may contain provisions that apply to review of the decision in addition to, or instead of, provisions in this Act.

(2) If an Act provides that an instrument made under that Act can contain provisions that apply: (a) in addition to; or (b) instead of; or (c) contrary to; this Act, the application of a provision of this Act is subject to a contrary intention in the instrument.

Note: Instruments may contain provisions that apply to review of a reviewable decision in addition to, or instead of, provisions in this Act if that is permitted by the Act under which the instrument is made.

Exceptions (3) However, subsections (1) and (2) do not apply in relation to: (a) Part 2 (establishment of Administrative Review Tribunal); or (b) Part 8 (members and staff of Tribunal); or (c) Part 9 (Administrative Review Council).

6 Extension to external Territories

This Act extends to the external Territories.