Commonwealth Numbered Regulations - Explanatory Statements
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ADMINISTRATIVE APPEALS TRIBUNAL AMENDMENT (FEES) REGULATION 2013 (SLI NO 89 OF 2013)
Attorney-General's
Administrative Appeals Tribunal Amendment (Fees) Regulation
2013
EXPLANATORY STATEMENT
Select Legislative Instrument 2013 No. 89
Issued under the
Authority of the Attorney-General
in compliance with section 26 of the Legislative Instruments Act 2003
INTRODUCTION
This regulation is made under section 70 of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
OUTLINE
This instrument amends the Administrative Appeals Tribunal Regulations 1976 (AAT Regulations) as outlined below.
Time for Dismissing an Application for Failure to Pay Fee
The Access to Justice (Federal Jurisdiction) Amendment Act 2012, which received Royal Assent on 11 December 2012, inserted a new section 69C of the AAT Act to enable the Administrative Appeals Tribunal (Tribunal) to dismiss an application where an application fee has not been paid by the time worked out under the AAT Regulations. This instrument amends the AAT Regulations to prescribe a period of six weeks. However, the power to dismiss is discretionary, and the Tribunal can afford applicants extra time to pay an application fee in appropriate circumstances.
This instrument also clarifies that, where an application fee is payable, it should be paid at the time an application is lodged. However, if the fee is not paid at that time, the Tribunal is not required to deal with the application unless, and until, the fee is paid.
Application Fee Exemption for Decisions relating to National Disability Insurance Scheme
This instrument also adds decisions made under the National Disability Insurance Scheme Act 2013 (NDIS Act) to the list of reviewable decisions in relation to which no application fee is payable when an application is lodged with the Tribunal. This will ensure that review by the Tribunal of such decisions will be as accessible as possible. The fee exemption is also consistent with a number of articles in the Convention on the Rights of Persons with Disabilities, including articles 5 (right to equality and non-discrimination), 12 (right to equal recognition before the law) and 13 (right to access to justice).
Other Amendments
This instrument also updates references to other legislation contained in regulation 19 and Schedule 3 to the AAT Regulations to ensure they are current, following amendments to the relevant legislation.
PROCESS BEFORE REGULATION WAS MADE
Regulatory impact analysis
Before this regulation was made, its expected impact was assessed using the Preliminary Assessment tool approved by the Office of Best Practice Regulation (OBPR). That assessment indicated that it would have no or low negative impact on business, individuals and the economy. This assessment has been confirmed by the OBPR (OBPR reference 14995).
Statement of compatibility with human rights obligations
Before this regulation was made, its impact on human rights was assessed using tools and guidance published by the Attorney-General's Department. It is fully compatible with human rights as defined in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Consultation before making
The amendments in Schedule 1 of the regulation were considered by the Senate Legal and Constitutional Affairs Legislation Committee in their inquiry into the Access to Justice (Federal Jurisdiction) Amendment Bill 2011. The Committee noted in its report that the amendments to the Tribunal's fees were supported by the organisations that commented on those aspects of the Bill.
With regards to the fee exemption (Schedule 2, Item 2), extensive consultation has been undertaken with the disability sector by the Minister for Disability, the Hon Jenny Macklin MP, and the National Disability Insurance Scheme (NDIS) Taskforce.
The Department of Families, Housing, Community Services and Indigenous Affairs was consulted on the update to the reference to the Social Security Act 1991.
OTHER ISSUES
Matter incorporated by reference
This regulation does not apply, adopt or incorporate other matter by reference.
More information
A provision by provision explanation of the regulation is provided in Attachment A.
A copy of the AAT Regulations and information about its history are available on the whole-of-government ComLaw website (http://www.comlaw.gov.au).
Further information about an instrument may be requested from the Attorney-General's Department.
NOTES ON SECTIONS ATTACHMENT A
Section 1 Name of regulation
This section provides for the regulation to be named as the Administrative Appeals Tribunal Amendment (Fees) Regulation 2013. The regulation may be cited by that name.
Section 2 Commencement
This instrument has three commencement dates.
Sections 1 to 4 will commence on the day after it is registered on the Federal Register of Legislative Instruments.
Schedule 1 will commence on the day on which Schedule 5 to the Access to Justice (Federal Jurisdiction) Amendment Act 2012 commences.
Schedule 2 will commence on 1 July 2013.
Section 3 Authority
This section identifies the Act that authorises the making of the regulation.
Section 4 Schedule(s)
This section is a formal section which specifies that each instrument specified in the Schedules is amended or repealed as per the contents of each Schedule.
Schedule 1
Item 1
This Item repeals existing subregulation 19(4). This subregulation currently specifies that an application fee must be paid before lodging the application. This subregulation is no longer required and is replaced by new subregulations 19(6B), (6C) and (6D).
Item 2
This Item inserts new subregulations 19(6B), (6C) and (6D).
New subregulation 19(6B) specifies that the fee for lodging an application is payable at the time the application is lodged.
New subregulation 19(6C) states that, if the fee is not paid when the application is lodged, the Tribunal is not required to deal with the application unless, and until, the fee is paid.
New subregulation 19(6D) states that, if the fee is not paid within six weeks after the application is lodged, the Tribunal may dismiss the application.
Item 3
Regulation 19AA relates to the prescribed fees payable in respect of taxation decisions. Subregulation 19AA(3) currently specifies that an application fee must be paid before lodging the application to which it relates. This subregulation is no longer required and is replaced by new subregulation 19AA(6C), (6D) and (6E).
Item 4
This Item inserts new subregulations 19AA(6C), (6D) and (6E) to specify the timeframe for paying fees in respect of taxation decisions.
New subregulation 19(6C) specifies that the fee for lodging an application for review is payable when the application is lodged.
New subregulation 19(6D) states that, if the fee is not paid when the application is lodged, the Tribunal is not required to deal with the application unless, and until, the fee is paid.
New subregulation 19(6E) states that, if the fee is not paid within six weeks after the application is lodged, the Tribunal may dismiss the application for review.
Schedule 2
Item 1
This Item removes the reference to 'section 55' of the Freedom of Information Act 1982 (FOI Act) in subregulation 19(2) which defines decisions under the FOI Act in relation to which no fee is payable when an application is lodged with the Tribunal. Following amendment of the FOI Act, this is an out-dated reference to that Act. This amendment will make clear that no application fee is payable when an application is lodged with the Tribunal for review of a decision under the FOI Act in relation to a document that relates to a decision specified in Schedule 3 to the AAT Regulations.
Item 2
This Item prescribes decisions made under the National Disability Insurance Scheme Act 2013 as decisions in relation to which no application fee is payable when an application for review is lodged with the Tribunal.
Item 3
Item 9A in Schedule 3 to the AAT Regulations currently specifies that decisions made under the social security law within the meaning of subsection 23(15) of the Social Security Act 1991, are prescribed decisions for the purposes of subregulation 19(2) and therefore no application fee is payable when an application for review is lodged with the Tribunal. At the time Item 9A of Schedule 3 was included in the AAT Regulations, subsection 23(15) of the Social Security Act contained the definition of 'social security law'. Following amendment of the Social Security Act, that definition was moved to subsection 23(17). This Item amends item 9A in Schedule 3 to ensure the reference is to the correct subsection. This amendment has no substantive effect on the current decisions which are not subject to an application fee.
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