Commonwealth Numbered Regulations - Explanatory Statements

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ADMINISTRATIVE APPEALS TRIBUNAL AMENDMENT REGULATIONS 2010 (NO. 2) (SLI NO 241 OF 2010)

 

 

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 241

 

Administrative Appeals Tribunal Act 1975

 

Administrative Appeals Tribunal Amendment Regulations 2010 (No. 2)

 

The Administrative Appeals Tribunal Act (the Act) establishes the Administrative Appeals Tribunal as a merits review tribunal to review decisions made under federal legislation, where jurisdiction is conferred on the tribunal by statute.

 

Section 70 of the Act provides that the Governor‑General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

Section 70(2) provides that the regulations may make provision prescribing fees to be payable in respect of applications to the Tribunal or in relation to the refund of fees so paid where a proceeding terminates in a manner favourable to the applicant. Section 70(2) also provides that regulations prescribing fees may prescribe different fees in respect of different classes of applications.

The Administrative Appeals Tribunal Regulations 1976 (the Principal Regulations) prescribe certain fees for court proceedings and make provisions about the payment of those fees.

The purpose of the Regulations is to amend the Principal Regulations to replace fee exemptions and waivers with low flat fees.

Under the Regulations, a person who is currently exempt from the payment of an application fee under a category mentioned in subregulations 19(6) and 19AA(6) will instead pay a low flat fee of $100. The persons mentioned in subregulations 19(6) and 19AA(6) are persons who: have been granted legal aid, holds an Australia Government concession card, is in prison or another lawful public detention institution, is under 18 years, receives youth allowance or austudy, or receives ABSTUDY.

Where a person in a category in subregulation 19AA(6) has paid a ‘lower application fee’ in the Small Taxation Claims Tribunal and moves into the general taxation division of the Administrative Appeals Tribunal, the Principal Regulations currently allow for the refund of the lower application fee. The Regulations will provide that the person pays the difference between the lower application fee and $100 if the lower application fee is less than $100, and in all other cases the person will only pay a $100 lower application fee.

The Regulations will also allow the Registrar to waive the application fee for a person if, having regard to the income, day-to-day living expenses, liabilities and assets of a person liable to pay an application fee, the Registrar considers that payment of the fee will cause financial hardship to the person, and instead order that the person pay $100.

Currently the Principal Regulations provide that where proceedings have terminated in a manner favourable to the person and they have paid the standard application fee or additional application fee, the Registrar shall refund the fee paid by the person. The Regulations will provide that the fee be refunded less $100. Fees that are not payable at all will be refunded.

These changes are part of a package of measures the government is implementing in the 2010‑11 Budget for its Strategic Framework for Access to Justice.  The Strategic Framework is based on principles of accessibility, appropriateness, equity, efficiency and effectiveness.  The access to justice measures in the 2010-11 Budget are focussed on directing people away from high-cost litigation to early intervention services, which help people resolve disputes before they escalate into larger problems.

The Administrative Appeals Tribunal has been consulted in relation to these regulations. The Law Council of Australia and National Legal Aid have been consulted in relation to the policy behind these regulations. This level of consultation is appropriate because the amendments arise out of a 2010-2011 Budget decision.

The Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Regulations commence 1 November 2010.

 

 

 

Authority: Section 70 of the Administrative Appeals Tribunal Act 1975


ATTACHMENT

 

Details of the Administrative Appeals Tribunal Amendment Regulations 2010 (No. 2)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations will be the Administrative Appeals Tribunal Amendment Regulations 2010 (No. 2).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on 1 November 2010.

 

Regulation 3 – Amendment of Administrative Appeals Tribunal Regulations 1976

This regulation provides for the amendment of the Administrative Appeals Tribunal Regulations 1976 (the Principal Regulations) as set out in Schedule 1.

 

Regulation 4 – Transitional

 

This regulation provides that paragraphs 19 (6) (a) and (b) of the Principal Regulations, as in force on 31 October 2010, apply to proceedings commenced before 1 November 2010. Therefore the new $100 fee will only apply to proceedings commenced after 31 October 2010.

 

Schedule 1 – Amendments

 

Item [1] Subregulation 19 (6)

 

This item provides that a fee of $100 is payable by a person mentioned in 19(6), instead of a fee not being payable at all. This replaces current fee exemptions with a $100 flat fee.

 

Item [2] Paragraphs 19 (6) (a) and (b)

 

This item replaces the term ‘fee’ with ‘application fee’ in order to distinguish the different fees payable.

 

Item [3] Subparagraph 19 (6) (b) (vi)

 

This item changes the punctuation in the subparagraph to reflect the removal of paragraph (19)(6)(c) by item [4] below.

 

Item [4] Paragraph 19 (6) (c)

This item removes the fee waiver provision from subregulation 19(6). Waivers are dealt with in a separate subregulation inserted by item [5] below.

 

 

 

 

Item [5] Subregulation 19 (7)

 

This item inserts a new subregulation 19(6A) which provides that instead of the current waiver provisions in paragraph 19(6)(c) of the Principal Regulations, which allow the Registrar, a District Registrar or a Deputy Registrar to waive an application fee, the Registrar, a District Registrar or a Deputy Registrar may order that a fee of $100 is payable instead of the application fee. The Registrar, a District Registrar or a Deputy Registrar, can decide to make the order that a fee of $100 is payable instead of the application fee if, having regard to the income, day-to-day living expenses, liabilities and assets of a person liable to pay an application fee, he or she considers that payment of the fee would cause financial hardship to the person.

 

This item also replaces the current refund provisions. This item inserts a new subregulation 19(7) which provides for the refund of the application fee or the fee of $100 if the fee was not payable. This item also inserts a new subregulation 19(8) which provides that an applicant is entitled to a refund of a particular amount if they paid the application fee and were only liable to pay the $100 fee or if they paid the application fee and the proceedings terminated in a manner favourable to the applicant. Subregulation 19(9) provides that the refund amount for the purposes of subregulation 19(8) is the difference between the application fee and $100.

 

Item [6] Subregulations 19AA (6) to (9)

 

This item replaces the current subregulations 19AA(6), (7), (8) and (9) with new subregulations.

 

Paragraph 19AA(6A)(a) provides that a fee of $100 is payable instead of the standard application fee for Part IIIAA taxation decisions in the Administrative Appeals Tribunal (AAT) for persons mentioned in subregulation 19AA(6).

 

Paragraph 19AA(6A)(b) provides that for applicants who have paid the lower application fee in the Small Taxation Claims Tribunal (STCT) where the lower application fee is less than $100, who are moving into the general taxation division in the AAT and who fall into a category of persons mentioned in subregulation 19AA(6) will only pay the difference between the lower application fee and $100. Where the lower application fee is more than $100, applicants mentions in subregulation 19AA(6) will only pay $100, and will not pay any further fees when moving into the general taxation division.

 

Subregulation 19AA(6A) provides that instead of the current waiver provisions in paragraph 19AA(6)(c) of the Principal Regulations, which allow the Registrar, a District Registrar or a Deputy Registrar to waive a standard application fee or additional fee, the Registrar, a District Registrar or a Deputy Registrar may order that a fee of $100 is payable instead of the application fee. The Registrar, a District Registrar or a Deputy Registrar, may decide to make the order that a fee of $100 is payable instead of the standard application fee if, having regard to the income, day-to-day living expenses, liabilities and assets of a person liable to pay an application fee, he or she considers that payment of the fee would cause financial hardship to the person. The Registrar, a District Registrar or a Deputy Registrar may also order that a person moving from the STCT to the general taxation division of the AAT pay only the difference between the lower application fee and $100, or that an applicant pay only $100 rather than the lower application fee.

 

Subregulation 19AA(7) provides that an applicant is entitled to a refund of any fee paid where the fee was not payable.

 

Subregulations 19AA(8) and (9) provide that if a person paid a standard application fee or an additional fee, but was only liable to pay $100, the person is entitled to a refund of an amount equal to the difference between the fee paid and $100. Subregulations 19AA(8) and (9) also provides that where a matter terminated in a manner favourable to the applicant and the applicant has paid the standard application fee or an additional fee, the applicant is entitled to a refund of an amount equal to the difference between the fee paid and $100.

 

Item [7] Regulation 19A

This item changes the date for calculating biennial increases to 1 July 2010 because all fee amounts in the Principal Regulations were updated to include previous biennial increases by the Administrative Appeals Tribunal Amendment Regulations (No. 1), which came into effect on 1 July 2010.

 

Item [8] Subregulation 19B (1), definition of fee

This item ensures that the $100 fee will not be subject to the biennial increase in fees, by excluding the $100 fee from the definition of fee.

Item [9] Subregulation 20 (1)

 

This item amends the wording of subregulation 20(1) to allow for the inclusion of additional decisions inserted by item [11] below.

 

Item [10] Paragraph 20 (1) (a)

 

This item amends the wording of subregulation 20(1) to allow for the inclusion of additional decisions inserted by item [11] below.

 

Item [11] Paragraph 20 (1) (b)

 

This item allows for review by the AAT of decisions made under the Regulations in items [2], [5] and [6], namely decisions not to order that a fee of $100 is payable instead of an application fee, standard application fee or additional fee.


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