Legal Practice Briefing
15 January 1996
CHANGES IN THE ADMINISTRATIVE APPEALS TRIBUNAL
Streamlining of procedures in the AAT
Abolition of the Security Appeals Tribunal - Transfer of function to the Administrative Appeals Tribunal (AAT)
The Law and Justice Legislation Amendment Act (No. 1) 1995 passed through Parliament on 1 December 1995 and commenced on Royal Assent (16 December 1995).
There are a number of Acts amended by this Act. Significant among those amendments are changes to the Administrative Appeals Tribunal Act 1975 to:
- create a Security Appeals Division in consequence of the abolition by other provisions in the Law and Justice Legislation Amendment Act of the Security Appeals Tribunal;
- give effect to certain recommendations of the Report of the Review on the Administrative Appeals Tribunal directed at streamlining the procedures of the Tribunal and clarifying the powers of the Tribunal in procedural matters;
- empower the Tribunal to remit matters to the decision-maker for reconsideration at any stage of proceedings before the Tribunal; and
- make other minor amendments including to remove gender-specific language from the Act.
The Report of the Review on the Administrative Appeals Tribunal, conducted between October 1990 and November 1991, made a number of recommendations for amendments to the AAT Act. Some changes to the Act recommended by the Review were enacted by the Administrative Appeals Tribunal Amendment Act 1993. The Law and Justice Legislation Amendment Act (No. 1) 1995 implements other recommendations in the Report and makes some related changes.
The amendments to the AAT Act in the Law and Justice Legislation Amendment Act provide for:
- two member hearings
- the offices of District Registrar and Conference Registrar
- restriction on the powers of a decision-maker after an application for review is made
- decisions on the papers
- lodging of material documents
- a power to remit matters to a decision-maker for further consideration at any stage of proceedings before the Tribunal
- the operation and implementation of a decision that is subject to appeal
- correction of errors in decisions or statements of reasons
- extension of time for appeals to the Federal Court where a written statement of reasons reveals reasons not mentioned in an earlier oral statement of reasons or where correction of errors has been made
- application of confidentiality provisions of other Acts
- calculation of short periods of time
- a procedure for taxing costs, and
- removal of gender-specific language from the AAT Act.
Outline of the Changes
Two member hearings
Sections 21 and 23 of the AAT Act are amended to allow the Tribunal to be constituted by a three member, two member or single member Tribunal as appropriate. Currently the Tribunal may only be constituted by two members where one member has ceased to be a member or is unavailable.
The ability to constitute two member Tribunals will give the Tribunal greater flexibility in managing its resources, is more cost-effective and may lead to matters being dealt with more quickly by the Tribunal.
New section 23A provides that if the Tribunal is constituted by two members and the members do not agree on the decision to be made in the proceeding, the matter will be reheard by the Tribunal as reconstituted in accordance with the directions of the President of the Tribunal. If a proceeding is reheard, the record of, and evidence given in, the first proceeding may be taken into account at the rehearing (new section 23B).
The Federal Proceedings (Costs) Act 1981 is consequentially amended to ensure that where a matter is reheard by the Tribunal under sections 23 or 23A of the AAT Act any party (other than the decision-maker) is entitled to a costs certificate (that is, an entitlement to costs to a statutory limit where proceedings are aborted or discontinued). The Attorney-General will be able to authorise payment in relation to a costs certificate up to a maximum of $2,000.
There are a number of other amendments dealing with the way the Tribunal can be constituted, for example, where the Tribunal is constituted by two or three members, at least one must be a presidential or senior member (new section 21(1AB)).
District Registrars and Conference Registrars
Section 24N is amended to provide that the officers of the Tribunal comprise the Registrar, District Registrars, Conference Registrars and Deputy Registrars.
These amendments formally recognise the office of District Registrar, reflecting the current administrative practices of the Tribunal under which much of the work is decentralised and is undertaken by District Registrars who are responsible for their respective District Registry. The Tribunal has registries in all State and Territory capital cities.
Section 24N also provides for the new office of Conference Registrar to be appointed by the President of the Tribunal. Conference Registrars (who could also have appointments as District or Deputy Registrars) will conduct conferences held under section 34 of the AAT Act.
Restriction on powers of decision-maker after application for review is made
New section 26 provides that, after an application for review of a decision has been lodged, the decision-maker may only vary the decision where the decision-maker is specifically authorised to do so by statute or the parties and the Tribunal consent.
Decisions on the papers
Currently an application for review cannot be determined without a hearing. New section 34B will allow the Tribunal, where the parties consent, to dispense with a hearing if the issues for determination can be adequately determined in the absence of the parties.
Lodging of material documents
Section 37 of the AAT Act provides for the decision-maker to lodge copies of a statement, which sets out the findings on material questions of fact and supporting evidence and gives the reasons for the decision, and related documents with the Tribunal. This section is amended to limit the number of copies of documents required in certain circumstances, to provide for an extension of time for lodging documents and to clarify the procedure where a claim for confidentiality is made under section 35.
The decision-maker will now be required to lodge only two copies of the relevant documents with the Tribunal within 28 days or within such further period as the Tribunal allows. Further copies may be lodged with the Tribunal as required. This will ensure that additional copies of documents are only requested when necessary.
The preparation of a full statement of reasons may not always be necessary, and in certain cases may unduly delay progress of the matter. If the decision under review is fully and clearly stated in an existing document or documents, the purpose of a section 37 statement can be fulfilled by providing a copy of those documents. New provisions will allow the President of the Tribunal to accept, in lieu of a statement, two copies of the document setting out the reasons for the decision, with the power to direct lodgment of a full statement of reasons at a later date.
Section 28 provides that an applicant for review may request the decision-maker to furnish a statement of reasons for the decision. Where a statement of reasons has already been provided under section 28, it will no longer be necessary for an additional statement of reasons to be prepared under section 37. Instead, copies of the section 28 statement of reasons will be required to be lodged with the Tribunal.
New provisions will provide that a decision-maker who lodges an application for confidentiality under section 35 must lodge with the Tribunal, and serve on the other parties to the proceeding, a statement that excludes the documents which are the subject of the claim of confidentiality. The decision-maker will still be required to lodge all the other section 37 documents.
A minor amendment is also made to section 68 to clarify that documents are to be lodged at a registry rather than at the office of a Registrar or Deputy Registrar.
Power to remit matters to decision-maker for reconsideration
The AAT Act is also amended to provide that the Tribunal has the power to remit matters to the decision-maker for reconsideration at any stage of the proceedings (new section 42D). Under this section, if the decision is then varied or set aside, the applicant can:
(a) proceed with the application for review of the decision as varied or of the new decision; or
(b) withdraw the application.
Operation and implementation of decision subject to appeal
Section 43 is amended to provide that:
- where the Tribunal has made an order staying the operation or implementation of the decision under review; and
- the order has remained in force until the Tribunal's decision,
then, unless the Tribunal or the Federal Court otherwise directs, the Tribunal's decision does not come into effect until the time for an appeal to the Federal Court has expired or the appeal is determined.
This amendment will resolve the problem of the Tribunal having exhausted its powers, or being functus officio, once its decision has been given.
Correction of errors in decisions or statement of reasons
The Tribunal will now have express power to correct an obvious error in the text of a decision or in a written statement of reasons for the decision (new section 43AA). Obvious errors include clerical or typographical errors or an inconsistency between the decision and the statement of reasons.
Extension of time for appeal
New section 44(2B) gives the Federal Court a discretion, in the interests of justice, to extend time for an appeal where the Tribunal's later written statement of reasons contains reasons not mentioned in an earlier oral statement of reasons or where the text of a decision or statement of reasons has been altered under section 43AA.
Application of confidentiality provisions of other Acts
New section 66A will provide that the confidentiality provisions of other Acts apply to officers of the Tribunal. This amendment will clarify the uncertainty as to whether, without any order of the Tribunal, a confidentiality provision in another Act applies to protect an officer or member of the Tribunal.
Calculation of short periods of time
There had not been a provision in the AAT Act dealing with the reckoning of time, although section 36 of the Acts Interpretation Act 1901 provides some guidance.
New section 68A will provide that where the period of time for doing anything is less than seven days, time shall not run on days when the registry in which the application was first lodged is closed.
Procedure for taxing costs
New section 69A will provide a mechanism for determining costs where the Tribunal awards costs and the parties are unable to agree on the amount of costs. Under this section, the President of the Tribunal may direct the Tribunal to tax or settle the amount of costs, or direct that the costs be taxed by the Registrar, a District Registrar or a Deputy Registrar. If the Registrar, a District Registrar or a Deputy Registrar has taxed the costs, either party may apply to the Tribunal for review of the amount so taxed.
In addition, regulations may be made prescribing fees in relation to a taxation of costs.
Minor consequential amendments are made to the Estate Duty Assessment Act 1914, the Fringe Benefits Tax Assessment Act 1986, the Income Tax Assessment Act 1936, the Pay-roll Tax Assessment Act 1941, the Pay-roll Tax (Territories) Assessment Act 1971 and the Safety, Rehabilitation and Compensation Act 1988.
Abolition of the Security Appeals Tribunal - Transfer of Function to the AAT
Amendments to the Administrative Appeals Tribunal Act 1975 ('AAT Act') and the Australian Security Intelligence Organization Act 1979 ('ASIO Act') will rationalise arrangements for hearing reviews of adverse or qualified security assessments made under the ASIO Act.
Security Appeals Tribunal
The Security Appeals Tribunal was an independent body established under the ASIO Act. The Tribunal commenced operations in June 1980. Its function was to review adverse or qualified security assessments of a person made by the Australian Security Intelligence Organization (ASIO). At the request of Commonwealth agency heads, ASIO conducts security assessments on individuals whose work involves access to information or to areas to which access is controlled or limited on security grounds.
An adverse or qualified security assessment is one that contains 'any opinion or advice, or any qualification of any opinion or advice, or any information, that is or could be prejudicial to the interests of the person' (section 35).
A person who received an adverse or qualified security assessment from ASIO was able to apply under section 54 of the ASIO Act to the Security Appeals Tribunal for a review of the assessment.
Applications for review of security assessments can now be made to the AAT and will be heard in the new Security Appeals Division of the AAT.
The AAT already has power to hear appeals against the refusal of requests under the Archives Act 1983 for access to ASIO records that are more than 30 years old. This Archives jurisdiction will also be included in the new Security Appeals Division because it calls for similar skills and knowledge to those involved in review of security assessments.
The procedure to be followed in dealing with reviews of decisions on access to ASIO files under the Archives Act will be the same as for other Divisions of the Administrative Appeals Tribunal.
Security Appeals Division Procedures
The procedure of the Security Appeals Division when reviewing security assessments will be similar to that used in the Security Appeals Tribunal. In particular, the provisions of the ASIO Act that relate to the confidentiality of proceedings and the qualifications for appointment are incorporated into the AAT Act. However, there are some differences from the previous procedures, namely:
- how the Division will be constituted
- secrecy of information presented at hearings
- privilege against self-incrimination
How the Division will be constituted
Under new section 21AA of the AAT Act, the Security Appeals Division, when conducting a review, is to be constituted by a presidential member and two other members. The presidential member must preside at Security Appeals Division hearings. However, there is no longer a requirement that the presidential member be a judge or a former judge (ASIO Act section 42).
Secrecy of information presented at hearings
The ASIO Act provided that the applicant or a representative of the applicant was not to be present when the Security Appeals Tribunal was hearing submissions or evidence from ASIO or the Commonwealth agency to which the security assessment was furnished (section 58). That section provided that representatives of ASIO or the Commonwealth agency were not to be present when the Tribunal was hearing submissions or evidence from the applicant.
New section 39A of the AAT Act will no longer require ASIO and the Commonwealth agency to be absent when the AAT is hearing the applicant. Further, it will generally allow the applicant or the applicant's representative to be present when the Security Appeals Division is hearing submissions or evidence from ASIO or the Commonwealth agency.
Where the Minister certifies that disclosure of evidence or submissions proposed to be given by ASIO or the Commonwealth agency would prejudice security or the defence of Australia, the applicant must not be present and the applicant's representative may only be present with the consent of the Minister. Criminal sanctions will apply if information is disclosed in breach of these provisions.
Privilege against self-incrimination
The ASIO Act provided that a person may not refuse to answer questions on the ground of self-incrimination but that evidence obtained could not be used in evidence in other proceedings (section 69). This provision has not been incorporated in the AAT Act, as it is not considered appropriate for a review body such as the AAT.
Appeals from Security Appeals Division
The ASIO Act provided that, subject to the Constitution, a decision or finding of the Security Appeals Tribunal was not subject to review by any court or other tribunal (section 62). This limitation has not been carried forward to the AAT Act. The existing provisions for appeal from a decision by the AAT will also apply to decisions made by the Security Appeals Division, so that appeals and references on questions of law will be able to be taken to the Federal Court.
Amendments to the Administrative Decisions (Judicial Review) Act 1977 ensure that decisions on security assessment reviews will continue, for reasons of national security, to be exempt from AD(JR) Act review.
The Migration Act 1958 is also amended because the time limit for applications for review of security assessments has been reduced from 30 to 28 days under the AAT Act.
ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)
The material in this briefing is provided for general information only and should not be relied upon for the purpose of a particular matter. Please contact the Legal Practice before any action or decision is taken on the basis of any of the material in this briefing.