110UEstablishment of Tribunal

110U  Establishment of Tribunal  (1) The Defence Honours and Awards Appeals Tribunal is established by this section.  (2) The Tribunal has the privileges and immunities of the Crown. 110UA  Functions of Tribunal   The functions of the Tribunal are:  (a) to review reviewable decisions in accordance with Division 3; and  (b) to inquire into matters concerning honours or awards for eligible service in accordance with Division 4. 110UB  Tribunal and Tribunal members not subject to direction   Except as provided by this Part (including the procedural rules) or another law of the Commonwealth, neither the Tribunal, nor any Tribunal member, is subject to direction from anyone in relation to the performance or exercise of the Tribunal’s or member’s functions or powers. Division 3—Review of decisions by the Tribunal 110V  What decisions are reviewable?  (1) A reviewable decision is a decision (whether made before or after the commencement of this Part) in relation to which the following conditions are satisfied:  (a) the decision is or was a refusal to recommend a person or group of persons for any of the following in relation to eligible service:  (i) a defence honour;  (ii) a defence award;  (iii) a foreign award;  (b) the decision is or was made:  (i) by or on behalf of the Minister, or a former Minister (a former Defence Minister) whose ministerial responsibilities included defence or matters related to defence; or  (ii) by a person within the Department, or a former Department of State of the Commonwealth that was administered by a former Defence Minister; or  (iii) by a person within the Defence Force, or an arm of the Defence Force;  (c) the decision is or was made in response to an application.  (2) However, a decision is not a reviewable decision if the decision:  (a) was made before 3 September 1939; or  (b) relates to service rendered before 3 September 1939. 110VA  Who can apply for review?   An application for review of a reviewable decision can only be made by the person, or one or more of the persons, who made the application referred to in paragraph 110V(1)(c). 110VB  Review of decisions by the Tribunal Decisions relating to defence honours  (1) If an application is properly made to the Tribunal for review of a reviewable decision relating to a defence honour, the Tribunal:  (a) must review the decision; and  (b) may make any recommendations to the Minister that the Tribunal considers appropriate. Note 1: The Tribunal does not have power to affirm or set aside the decision. Note 2: Formal requirements relating to decisions etc. of the Tribunal are dealt with in section 110XE. Decisions relating to defence awards and foreign awards  (2) If an application is properly made to the Tribunal for review of a reviewable decision relating to a defence award or a foreign award, the Tribunal must review the decision and:  (a) affirm the decision; or  (b) set the decision aside and:  (i) substitute a new decision (being a decision to recommend a person or group of persons for a defence award or a foreign award); or  (ii) refer the matter to a person determined by the Tribunal, for reconsideration in accordance with any directions of the Tribunal.  (3) The Tribunal may also make any recommendations to the Minister that the Tribunal considers appropriate and that arise out of, or relate to, the Tribunal’s review under subsection (2) of a reviewable decision.  (4) If, under subsection (2), the Tribunal sets aside a reviewable decision and substitutes a new decision then, unless the Tribunal determines otherwise, the substituted decision:  (a) is taken to be a decision of the person who made the reviewable decision (except for the purpose of any review of the substituted decision, whether by the Tribunal or otherwise); and  (b) has effect, or is taken to have had effect, on and from the date determined by the Tribunal.  (5) If, under subsection (2), the Tribunal sets aside a reviewable decision and refers the matter to a person determined by the Tribunal, for reconsideration in accordance with any directions of the Tribunal:  (a) the person must reconsider the matter accordingly; and  (b) if the person’s decision on the reconsideration is a refusal of a kind described in paragraph 110V(1)(a)—the decision is taken to be a reviewable decision made by that person in response to an application made by the person or persons who made the application referred to in subsection (2) of this section. Tribunal is bound by eligibility criteria that governed making of reviewable decision  (6) In reviewing a reviewable decision, the Tribunal is bound by the eligibility criteria that governed the making of the reviewable decision.  (7) The regulations may define or otherwise clarify the meaning of eligibility criteria for the purpose of subsection (6). 110VC  Power to dismiss review applications  (1) Despite section 110VB, the Chair may, in writing, dismiss an application for review of a reviewable decision if the Chair considers that:  (a) there is another process for review, by the Commonwealth, of the decision, and it would be preferable for the decision to first be reviewed by that process; or  (b) the question whether the person, or group of persons, concerned should be recommended for the defence honour, defence award or foreign award concerned has already been adequately reviewed (whether by the Tribunal or otherwise); or  (c) the application is frivolous or vexatious.  (2) The Chair’s power under subsection (1) to dismiss an application for review of a reviewable decision may be exercised at any time, whether before or after the Tribunal has started to review the decision.  (3) A dismissal under subsection (1) is not a legislative instrument. Division 4—Inquiries by the Tribunal