Legal Practice Briefing No. 23

Number 23

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)

Introduction

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.

Streamlining of Procedures
in the AAT

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.

Consequential Amendments

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
  • appeals.

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.

Consequential Amendments

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.

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