Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2024
ADMINISTRATIVE REVIEW TRIBUNAL (CONSEQUENTIAL ANDTRANSITIONAL PROVISIONS NO. 1) BILL 2024
GENERALOUTLINE
1. The Administrative Review Tribunal (Consequential and TransitionalProvisions No.1) Bill2024 (Consequential Bill) formspart of a package of Bills that would abolish the AdministrativeAppeals Tribunal (AAT) and establish the Administrative ReviewTribunal (the Tribunal), a new federal administrative review bodythat is user-focused, efficient, accessible, independent andfair.
2. The Administrative Review Tribunal Bill2024 (ARTBill)would establish the Tribunal and set out the operating frameworkfor the Tribunal to significantly improve the experience of thoseseeking review of government decisions.
3. The Consequential Bill supports the ARTBill by repealing the Administrative Appeals Tribunal Act1975 (Cth)(AATAct), making consequential amendments across138Commonwealth Acts and providing transitional rules whichfacilitate the smooth transition from the AAT to the Tribunal.
4. The Administrative Review Tribunal (Consequential and TransitionalProvisions No.2) Bill2024 contains additionalconsequential amendments to 110other Commonwealth Acts thatinteract with the AATAct to support the reforms toadministrative review.
Consequential Bill
5. The Consequential Bill would amend 138CommonwealthActs,covering approximately 93percent of the AAT’scurrent caseload. This includes amendments to legislation in keyportfolios, such as the Home Affairs, Social Services, Treasury,Veterans’ and National Intelligence Community portfolios. Inparticular, the Consequential Bill:
· Adjusts the exhaustive statement of the natural justice hearingrule for migration and protection matters, so that it continues tocodify matters relating to notification, non-disclosableinformation and requirements on what information must, and must not, be put to an applicant forcomment before certain powers are exercised; but provides additional flexibility for the Tribunal toreduce delays and backlogs in migration and refugee matters,increase fairness for genuine applicants, and maintain theintegrity of the migration system .
· Provides a fit-for-purpose style of review of SocialSecurity and Child Support decisions. Matters will be triaged, andresolved according to the complexity of the matter, and whether theparticipation of the decision-maker will assist its effective andefficient resolution.
· Makes consequential amendments to social services legislation tosupport Part 5A of the ART Bill, which provides for second reviewsof these decisions, and to ensure that initial reviews of thesedecisions are informal, accessible, trauma-informed and quick
· Continues existing pathways and protections for the review ofmatters involving sensitive national security or intelligenceinformation, with enhancements to simplify drafting and promoteconsistent, effective approaches.
· Maintains merits review in two separate bodies as a unique featureof veterans’ entitlement law, with matters reviewed in theVeterans’ Review Board (VRB) continuing to be appealable tothe Tribunal.
· Promotes consistency and simplicity by repealing specialarrangements that overlap, duplicate or unnecessarily displace coreprovisions of the ARTBill.
Terminology changes and updatingcross-references
6. The ConsequentialBill would update terminology across theCommonwealth statute book to replace references to the AAT andAATAct with references to the Administrative Review Tribunaland the Administrative Review Tribunal Act2024 . Theseamendments would ensure that the Tribunal has the same jurisdictionas the AAT, and that various provisions continue to operate insubstantively the same way as the existing law in the AAT.
7. The ConsequentialBill would also replace references toprovisions of the AATAct with references to the equivalent,or broadly equivalent provisions under the ARTBill. Thisincludes updating provisions with legislative references tonotification requirements under the AATAct, or other conceptscreated under the AATAct (for example, ‘officers of theTribunal’ or ‘presidential members’). Theseamendments would ensure that other legal frameworks reflect theterminology, concepts, structure and other policy settings in theARTBill or are otherwise consistent with the ARTBill.This would ensure that existing laws continue to apply asintended.
Standardising processes
8. A key objective for the reform is to enable procedural efficienciesand process improvements by harmonising processes and proceduresacross the Tribunal’s caseload wherever possible.
9. The ARTBill would implement a set of standard procedures andpowers which the Tribunal can use to resolve matters. Thoseprocedures and powers have been designed to be flexible andadaptable to the Tribunal’s broad caseload, and should berelied upon by Acts conferring jurisdiction on the Tribunal as faras possible. Where possible, the ConsequentialBill wouldrepeal special procedures in other Acts, with the effect that thedefault provisions in the ARTBill would apply.
10. There are significant benefits to the Tribunal and users in relyingon these standard procedures, rather than applying particulararrangements. Users engage with a range of government agencies overtheir lifetime, and may seek review of several different governmentdecisions in that time. Recognising that the majority of Tribunalusers are self-represented, increased similarity andpredictability in how matters should proceed would better equipthem to have a positive experience of review. For the Tribunal,there would also be significant efficiencies from greaterharmonisation than applies in the AAT. It would reduce thecomplexity of the Tribunal’s operating environment, allowingshared technology, forms, staff and member resources.
11. However, there are circ*mstances where the Tribunal’sproposed standard powers and procedures would need to be changed,to respond to the unique features of a particular caseload. Inthose circ*mstances, the Consequential Bill would also make thenecessary amendments to other Acts to preserve existingarrangements.
Transitional arrangements
12. The Consequential Bill also contains measures to effect the transition from the AAT to the ART. Thisincludes transitioning the Tribunal’s active, pending andpotential caseloads, including matters before the courts, tominimise disruption and to maintain review rights. The Consequential Bill also contains conditions forcertain AAT members (including the President) to transition to theART, and sets out arrangements for certain members who donot.
FINANCIAL IMPACT
13. The Government will provide $21.8 million over two years from2023-24 to support the interim financial sustainability of the AATand ensure a smooth transition to the new Tribunal. A further $30.1million over five years from 2022-23 has been provided to the AATfor the development of a new case management solution (CMS) for useby the Tribunal.
14. In response to the Royal Commission into the Robodebt Scheme, theGovernment has committed $5.3 million over four years from 2023-24(and $1.8 million per year ongoing) to support the re-establishedAdministrative Review Council to monitor and enquire into theCommonwealth administrative review system.
15. The Government is continuing to consider the Tribunal's resourcingneeds as part of the reform to Australia's system of administrativereview.
STATEMENT OFCOMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part3 of the Human Rights (Parliamentary Scrutiny)Act2011
Administrative Review Tribunal (Consequential andTransitional Provisions No.1) Bill2024
16. This Bill is compatible with the human rights and freedomsrecognised or declared in the international instruments listed insection3 of the Human Rights (Parliamentary Scrutiny)Act2011 .
Overview of the Consequential Bill
17. The Administrative Review Tribunal (Consequential and TransitionalProvisions No.1) Bill2024 (Consequential Bill) formspart of a package of Bills that would abolish the AdministrativeAppeals Tribunal (AAT) and establish the Administrative ReviewTribunal (Tribunal), a new federal administrative review body thatis user-focused, efficient, accessible, independent and fair.
18. The Consequential Bill supports the ARTBill by repealing the Administrative Appeals Tribunal Act1975 (Cth)(AATAct), making consequential amendments across138Commonwealth Acts and providing transitional rules whichfacilitate the smooth transition from the AAT to the Tribunal.
Consequential Bill
19. The Consequential Bill:
· Retains a range of existing special rules for Tribunal reviews oftaxation and charity matters to, among other things, protect taxrevenue collection and uphold longstanding core tax principles andpractices.
· Abolishes the Immigration Assessment Authority (IAA) and harmonisesprovisions relating to reviews of migration and refugee decisions(providing a broader suite of tools for the efficient and effectiveresolution of these matters).
· Adjusts the exhaustive statement of the natural justice hearingrule for migration and protection matters, so that it continues tocodify matters relating to notification, non-disclosableinformation and requirements on what information must, and mustnot, be put to an applicant for comment before certain powers areexercised; but provides additional flexibility for the Tribunal toreduce delays and backlogs in migration and refugee matters,increase fairness for genuine applicants, and maintain theintegrity of the migration system.
· Provides a fit-for-purpose style of review of SocialSecurity and Child Support decisions. Matters will be triaged andresolved according to the complexity of the matter, and whether theparticipation of the decision-maker will assist its effective andefficient resolution.
· Makes consequential amendments to social services legislation tosupport Part 5A of the ART Bill, which provides for second reviewsof these decisions, and to ensure that initial reviews of thesedecisions are informal, accessible, trauma-informed and quick.
· Continues existing pathways and protections for the review ofmatters involving sensitive national security or intelligenceinformation, with enhancements to simplify drafting and promoteconsistent, effective approaches.
· Maintains merits review in two separate bodies as a unique featureof veterans’ entitlement law, with matters reviewed in theVeterans’ Review Board (VRB) continuing to be appealable tothe Tribunal.
· Promotes consistency and simplicity by repealing specialarrangements that overlap, duplicate or unnecessarily displace coreprovisions of the ARTBill.
20. The ConsequentialBill would update terminology across theCommonwealth statute book to replace references to the AAT andAATAct with references to the Administrative Review Tribunaland the Administrative Review Tribunal Act2024 . Itwould also replace references to provisions of the AATActwith references to the equivalent, or broadly equivalent,provisions under the ARTBill.
21. The ARTBill would also implement a set of standard proceduresand powers which the Tribunal can use to resolve matters. Thoseprocedures and powers have been designed to be flexible andadaptable to the Tribunal’s broad caseload, and should berelied upon by Acts conferring jurisdiction on the Tribunal as faras possible. Where possible, the ConsequentialBill wouldrepeal special procedures in other Acts, with the effect that thedefault provisions in the ARTBill would apply.
22. However, where departures from the Tribunal’s proposedstandard powers are required to respond to the unique features of aparticular caseload, the Consequential Bill would also makenecessary amendments to achieve that outcome.
Human rights implications - issues common to allSchedules
23. The Consequential Bill would make consequential amendments tosupport the implementation of the ARTBill. This includesensuring that the Tribunal retains the jurisdiction of the AAT andthat affected persons have access to the review frameworkestablished by the ARTBill. As such, the Consequential Billengages the same rights as those engaged by the ARTBill.
24. The ARTBill engages the following rights:
· the right to an effective remedy in Article2(3) of theInternational Covenant on Civil and Political Rights (ICCPR)
· the right to a fair and public hearing in Article14 of theICCPR
· the right to equality before the law in Article26 of theICCPR
· the right to freedom from arbitrary and unlawful interferences withprivacy in Article17 of the ICCPR
· the right of access to justice for people with disability inArticle13 of the Convention on the Rights of Persons withDisabilities (CRPD)
· the right to a presumption of innocence in Article14(2) ofthe ICCPR
· the right to freedom of opinion and expression in Article19of the ICCPR (engaged tangentially).
25. The ARTBill and Consequential Bill are both compatible withhuman rights. The Bills advance the right to an effective remedy,afair and public hearing, the right of access to justice forpersons with adisability and the right to freedom fromarbitrary and unlawful interference with privacy. To the extentthat the Bills limit any human rights, those limitations arereasonable, necessary and proportionate. For more detail, see theStatement of Compatibility with Human Rights in the ExplanatoryMemorandum for the ARTBill for further information.
26. In addition, the Schedules of the ConsequentialBill engagehuman rights or freedoms, as set out in detail below.
Human rights implications -Specific schedules
Schedule1:Treasury
27. This Schedulewould make consequential amendments tolegislation in the Treasury portfolio, needed as a result of therepeal of the AATAct and the establishment of the Tribunal.The schedule would amend legislation to retain a range of existingspecial rules which apply for taxation and charity matters toensure the workability of Tribunal review for those matters, toprotect tax revenue collection, and to uphold longstanding core taxprinciples and practices. For example, this would includerestricting who could apply for review, who could be joined as aparty to proceedings and mandating private hearings to protecttaxpayer confidentiality and otherwise ensure the workability ofproceedings.
28. The Scheduleengages the following human rights:
· the right to an effective remedy and the right to afairhearing in Articles2(3) and 14 of the ICCPR
· the right to freedom from arbitrary and unlawful interferences withprivacy in Article17 of the ICCPR.
The right to an effective remedy andafair hearing in Articles2(3) and 14 of the ICCPR
29. Article 2(3) of the ICCPR provides that States shall undertake toensure the right to an effective remedy for any violation of rightsor freedoms recognised by the ICCPR. It includes the right to havea remedy determined by competent judicial, administrative orlegislative authorities. This right also encompasses the duty toensure component authorities enforce any such remedies whengranted.
30. Article14(1) of the ICCPR protects the right that all personsare equal before courts and tribunals. It further provides thatevery person, in the determination of ‘rights and obligationsin a‘suitatlaw’ is entitled toa‘fair and public hearing by acompetent,independent and impartial tribunal established by law’.Article14(1) also recognises that ‘the press and publicmay be excluded from all or part of a trial for reasons of morals,public order (order public) or national security in a democraticsociety, or when the interest of the private lives of the partiesso requires…’.
31. The extent to which Article14(1) applies to administrativereview proceedings (whether such proceedings constitute a‘suitatlaw’) is not fully settled.
Conferring jurisdiction on the Tribunal
Private hearings
33. Schedule1 ensures that administrative reviews about taxmatters must be heard in private if the applicant requests it. Theamendments retain the position under law, in order to maintain theprinciple of confidentiality in taxation hearings.
34. To the extent that Article14 may apply to administrativereview proceedings, Schedule1 engages the right toapublic hearing and permissibly limits it as anticipated byArticle14(1).
35. The amendments are for the legitimate objective of facilitatingaccess to the Tribunal and supporting the proper administration ofthe tax system, which as aself-assessment system, isfounded on taxpayers making full and frank disclosures to theCommissioner of Taxation.
36. Given the sensitive and personal nature of taxation information, itis reasonable and necessary to protect it from broader disclosure.Failing to provide a clear mechanism to protect sensitive personalor commercial information may discourage individuals from seekingreview of a decision. Finally, the measure is proportionate, ashearings are only private if requested by a party to the review,rather than requiring private hearings in all circ*mstances.
The right to freedom from arbitrary andunlawful interferences with privacy in Article17 of theICCPR
37. The amendments made by this Scheduleengage the prohibition onarbitrary or unlawful interference with privacy contained inArticle17 of the ICCPR.
38. Article17 of the ICCPR ensures that any interference with anindividual’s privacy, including their family, home andcorrespondence, must not be unlawful or arbitrary. Every personalso has the right to legal protection against any interference orattacks on their privacy. The Human Rights Committee hasinterpreted the right to privacy as comprising freedom fromunwarranted and unreasonable intrusions into activities thatsociety recognises as falling within the sphere of individualautonomy.
39. For taxation matters, Schedule1 promotes the right to privacyin three ways. First, it limits who can apply for review to onlythe entity who received the decision. Second, it ensures that theapplicant must give consent for others to be joined as apartyto proceedings. Third, it mandates that Tribunal hearings must bein private if requested by the applicant.
40. The amendments also ensure that where a hearing is held in privateand the Tribunal publishes reasons for the decision, the Tribunalmust ensure that, as far as practicable, its reasons for thedecision are framed to avoid identification of the person who madethe relevant application.
41. The amendmentsretain the position under law, which protecttaxpayer confidentiality. They balance this against the principleof open justice, and the public interest in the continuedavailability of precedents for use by taxpayers and theirprofessional advisors. The provisions promote the right toprivacy.
Conclusion
42. The Scheduleis compatible with human rights. It advances theright to an effective remedy, afair hearing and the right tofreedom from arbitrary and unlawful interference with privacy. Tothe extent that the Schedulelimits any human rights, thoselimitations are reasonable, necessary and proportionate.
43. Schedule2 would amend the MigrationAct to significantlystandardise the review process for migration and protection visaapplicants with other Tribunal caseloads. Broadly, the amendmentswould enable the Tribunal to exercise a range of functions andpowers in the ART Bill in proceedings for review of reviewablemigration and protection decisions, and harmonise and combineParts5 and7 of the MigrationAct into one singlePart dealing with the conduct of a review. It would also abolishthe IAA and provide for those matters to transition into theTribunal to be dealt with as a reviewable protection decision.
44. The codification of the natural justice hearing rule would applyfor certain critical aspects of migration and protection visareview: notification (that is, providing ‘deemedreceipt’), non-disclosure certificates issued by the relevantMinister, and the information that must be, and must not be, put tothe applicant before exercising certain powers. The common lawnatural justice hearing rule would apply to other aspects ofproceedings.
45. Certain provisions that apply currently in the AAT would beretained for the Tribunal to ensure the workability of Tribunalreview for migration and protection visa matters. Thesearrangements would include: specific timeframes to apply for reviewif people are in immigration detention, disapplying extensions oftime to apply for review for reviewable migration and protectiondecisions, a request-based model for provision of client files tothe applicant for reviewable migration and protection decisions,clear requirements for application validity and fee payment,disapplying remittals, providing that the Minister is taken to be anon-participating party, and provisions relating to non-disclosurerequirements. These arrangements ensure (among other things) thattimeframes are clear, finite and compatible with the bridging visasystem, and that it is clear when a matter is finallydetermined.
46. The Scheduleengages the following human rights:
· right to an effective remedy in Article2(3) of the ICCPR
· right to a fair and public hearing in Article14(1) of theICCPR
· right of non-refoulement in Article3 of the ConventionAgainst Torture and Other Cruel, Inhuman or Degrading Treatment orPunishment (CAT) and Articles6(1) and 7 of the ICCPR
· right to humane treatment in detention in Article10 of theICCPR
· right to freedom from lawful expulsion from the territory of aState Party in Article13 of the ICCPR
· right to freedom from arbitrary and unlawful interferences withprivacy Article17 of the ICCPR.
Right to an effective remedy and a fair andpublic hearing
48. Article14(1) of the ICCPR provides that all persons shall beequal before the courts and tribunals. It further provides thateveryone is entitled, in the determination of their ‘rightsand obligations in a suit at law’, to a ‘fair andpublic hearing by a competent, independent and impartial tribunalestablished by law’. The extent to which Article14(1)applies to administrative review proceedings (because of a questionabout whether such proceedings constitute a ‘suit atlaw’) is not fully settled.
49. To the extent that they may apply, Schedule2 promotes theright to an effective remedy in Article2(3) of the ICCPR andthe right to a fair hearing in Article14(1) of the ICCPR inthe ways listed below.
Amendments to provide the Tribunalwith jurisdiction to review decisions
50. Schedule2 promotes the right to an effective remedy by makingconsequential amendments to provide that decisions may bereviewable by the Tribunal (where they were previously reviewableby the AAT). This maintains the ability of persons to seekindependent, external review of government decisions.
Guidance and appeals panel - notavailable for migration and protection matters
51. The Scheduleprovides that applicants who have had a decisionmade for a reviewable migration or reviewable migration decisionunder the ARTBill may not make an application for a furtherTribunal review in the guidance and appeals panel. This may be seenas a limit on the right of applicants to a fair hearing underArticle14(1) of the ICCPR and right to remedy underArticle2(3) of the ICCPR.
52. The legitimate objective pursued by restricting visa relatedreviewable decisions from appeal to the guidance and appeals panelis to support the efficient and timely resolution of matters, topreserve the finality of Tribunal decisions (ensuring clear visastatus for applicants), and to prevent applications being made tothe guidance and appeals panel to prolong an applicant’s stayin Australia. Given the significant volume of reviewable migrationand protection decisions, it is both reasonable and necessary tolimit the number of external reviews an applicant may pursue.
53. The measure is also proportionate, as the President of the Tribunalretains the ability to refer matters to the guidance and appealspanel, should the President be satisfied that the applicationraises an issue of significance to administrativedecision-making and if it is appropriate in the interests ofjustice to re-constitute the Tribunal. This provides that the keysystemic benefits of the guidance and appeals panel remainavailable for these types of decisions.
54. Finally, if Tribunal review does not provide a satisfactoryresponse, a visa applicant may pursue judicial review in thecourts.
55. To the extent this Schedulecan be considered a limitation onArticles14(1) and 2(3) of the ICCPR, the limitation ispermissible.
Abolition of the IAA (repeal of Part7AA)
56. Schedule2 abolishes the IAA and provides for the transitionof those matters to the ART as reviewable protection decisions.
57. The IAA involves more limited review procedures for certain visaapplicants. The IAA determines the review based only on thematerial that was available to the primary decision-maker, subjectto limited exceptions, and does not interview the applicant.
58. Repealing Part 7AA, together with the transitional arrangements inSchedule 16, provides that these applicants have access to theusual processes for review of protection decisions in the Tribunal.These provisions promote the right to an effective remedy and afair and public hearing.
Harmonisation of Parts 5 and 7, and greateravailability of standard Tribunal powers
59. Schedule2 combines Parts 5 and 7 of the MigrationActand significantly reduces the differences in provisions applicableto reviewable migration and protection decisions. It alsosignificantly standardises the powers and procedures to be used inmigration and protection reviews by providing for powers andprocedures under the ART Bill to apply.
60. In amending the powers and procedures available to the Tribunal inrelation to reviewable migration and protection decisions, thisScheduledoes not remove or diminish the right for Tribunalreview under the existing the MigrationAct.
61. Schedule2 of the Consequential Bill engagesArticles2(3) and 14 of the ICCPR insofar as it expands thepowers and procedures available to the Tribunal in the review ofmigration and protection reviewable decisions, and significantlyadjusts what is covered by the exhaustive statement of the naturaljustice hearing rule (existing sections 357A and 422B of theMigrationAct).
62. The codification of the natural justice hearing rule remains inplace for critical aspects of migration and protection visa review:the notification framework (including ‘deemed receipt’)(items200-216), the information that must be, and must notbe, put before the applicant in a review before certain powers areexercised (items154-162), and the ability of the Minister toissue non-disclosure certificates (items175-188). Theseprovisions provide certainty and clarity to applicants. Theypromote consistent decision making by the Tribunal and Courts, andensure applicants are given a fair opportunity to present theircase. They engage with the right to a fair hearing (to the extentthat it applies in a tribunal context - see above) as theyexhaustively state what is required to discharge the naturaljustice hearing rule to the exclusion of the common law, therebypromoting the rights to a remedy and fair hearing in the ICCPR.Importantly, the amendments retain some current settings for theexhaustive statement of procedural fairness, and repeal others thatare no longer necessary as they duplicate provisions in the ARTBill or constrain the Tribunal’s ability to conduct efficientand fair reviews. Compared to the current system, they cannot beseen as limiting the rights to an effective remedy or a fair andpublic hearing.
63. The notification framework in Division7 of Part5 of theMigrationAct (as amended by items200 to 216) displacesthe common law as it relates to giving documents to an applicant,and in particular; when the applicant is taken to have receivednotification. The current regulations applying under theseprovisions prescribe modes of providing documents - includingby hand to a person, to a person at the last residential orbusiness address, by post and electronic means - and when thosedocuments are taken to have been received. When the notification istaken to be received is non-rebuttable. These requirements mayapply to a range of notifications required or permitted under theMigrationAct or ARTBill, for example, providing adverseinformation to an applicant, notifying them of a hearing, orinforming them of a Tribunal direction. The effect of the provisionis that the Tribunal is able to continue the review on the basisthat all documents, provided in accordance with Division7,have been received by the applicant, supporting an efficientreview. This can engage with the right to a fair hearing where anapplicant has been deemed to have been notified, but has notreceived actual notification.
64. The notification framework pursues the legitimate objective ofsupporting efficient Tribunal review of decisions. The limitationis necessary in light of the significant volume of migration andprotection matters, and recognises that the Tribunal needs to havecertainty about how it communicates and when essential documentswhich allow the review to progress have been received. It isreasonable and proportionate, as the details used for thenotification scheme are provided by the applicant, who may nominatethemselves or an authorised recipient to receive Tribunal documentsor notifications. As such, the limitation is permissible.
65. The ‘adverse information’ provision, contained insection359A of the MigrationAct (as amended byitems154-162), and the ability for the Minister to issuenon-disclosure certificates contained in Division6 ofPart5 of the MigrationAct (as amended byitems175-188) limit what information may be put to a personin a review. For ‘adverse information’, categories ofinformation such as information that is not specifically about theapplicant, or information that the applicant has providedthemselves, is excluded. The Ministerial certificate regime allowsthe Minister to certify that certain information must not bedisclosed on the basis that its disclosure would prejudice thesecurity, defence or international relations of Australia; ordisclose deliberations or decisions of the Cabinet. Where such acertificate is issued, the information may only be provided to theTribunal, and not to the applicant. These engage with the rights toa fair hearing and an effective remedy by limiting, in somecirc*mstances, the ability of a party to access some information inthe proceedings.
66. The adverse information framework is necessary to support theefficient operation of the review system. The types of informationwhich must not be disclosed are confined to information that is notdirectly about the applicant, information that the applicant hasprovided (thus should be aware of already), or information that hasbeen provided to the applicant in a statement of the originaldecision. The ministerial certificate regime is necessary topromote the legitimate objectives of national security andprotecting the confidentiality of Cabinet deliberations. Theselimitations are reasonable and necessary to manage the volume ofmigration and protection reviews, while minimising the disadvantageto the applicant, as the information is either not about them, isinformation they ought to have access to already, or is against thepublic interest to disclose. As such, the limitation ispermissible.
67. The legitimate purpose of the ministerial certificate regime is topromote national security and the public interest (as envisioned byArticle14(1) of the ICCPR). Strict criteria apply for theissuing of public interest certificates over a proceeding, and theTribunal can allow disclosure of information subject to acertificate in limited circ*mstances. As such, the limitation ispermissible.
Public hearing
68. In addition to a fair hearing, Article14(1) of the ICCPRprovides the general principle that the hearing should be inpublic. However, Article14(1) also provides that the pressand the public may be excluded from all or partof a trial forreasons including when the interest of the private lives of theparties so require.
69. Section 367B of Schedule2 engages this right by preservingthe existing requirement in the MigrationAct that review of areviewable protection decision must be in private (noting thatclause 69 of the ART Act, which generally requires hearings to bein public, applies to hearings of proceedings for the review ofreviewable migration decisions).
70. The requirement to have private hearings under new 367B is for thepurpose of protecting the identity and safety of the reviewapplicant and any family members or friends who may have remainedin the country from which the review applicant has claimed fear ofpersecution or harm. This is a reasonable limitation in thatprotection visa applicants can be particularly vulnerable witnesses. It isproportionate because it does not limit the applicant’sability to respond to information in the review. Decisions andreasons for decision can still be published, provided anyidentifying or sensitive information is first redacted. This iswithin the scope of exceptions permitted under Article14(1).Therefore, to the extent that Schedule2 would limit the rightto a public hearing for certain reviewable decisions, thelimitations are reasonable, proportionate and justified.
Timeframes
71. Schedule2 provides a reduced timeframe (of seven or nine daysafter being notified) for certain cohorts when applying for review,replacing the standard provisions in the ARTBill on thesematters. It applies the standard 28-day timeframe (as provided forin the ARTBill for all other matters) to most migration andprotection reviewable decisions. This represents an increase formany existing timeframes under the MigrationAct, but is areduction from 70days for certain reviewable decisions inrecognition that longer timeframes for persons who are offshore areno longer required when applications can be made electronically.More consistent and standardised timeframes promote clarity,consistency and accessibility of review by simplifying applicationprocesses and promoting efficiency within the Tribunal.
72. Paragraph 347(3)(a) in Schedule2 provides that an applicationfor review of a decision from eligible applicants in immigrationdetention must be made within sevendays after the day theapplicant is notified of the decision. The new seven-daytimeframe represents a significant increase for some applicants,who previously had twodays to apply for review. This promotestheir ability to consider their prospects at review and gatherinformation while ensuring the application period is proportionallybalanced against not materially extending a person’s time indetention or causing any other undue delay of their departure fromthe country (where warranted).
73. The Consequential Bill retains section367 of theMigrationAct which provides that for certain bridging visadecisions, being a refusal to grant, or cancellation of, a visathat requires a person to be detained, the Tribunal must make itsdecision on review, and notify the applicant of the decision,within the prescribed period. The existing prescribed period in theMigration Regulations is seven working days after the day on whichthe review application is received.
74. Section 500(6B) as amended by item267 in Schedule2makes consequential amendments that have the effect of retainingthe existing nine-day timeframe to apply for review of a decisionto refuse or cancel a visa on character grounds. In addition,Schedule2 maintains the current approach that for the refusal or cancellation of a visaunder section501 or about a revocation request undersection501C, the Tribunal must make a decision within84days after the day on which the person was notified of thedecision under review. This remains necessary in order to expeditereview of decisions made by a delegate of the Minister under thecharacter provisions. These provisions continue to balance theGovernment’s concern to expedite review of characterdecisions against the need to ensure that the Tribunal has theability to properly review these decisions. Subsection 347(5) ofSchedule2 also provides that the Tribunal cannot extend thetime period to make an application for review of a reviewablemigration or protection decision: see clause 19 of theARTBill.
75. These provisions maintain the status quo in some areas, andfacilitate standardised procedures for the Tribunal in other areas,and may tangentially impact on the right to an effective remedy andright to a fair hearing in the ICCPR. However, any potentiallimitation is reasonable and necessary to maintain the integrity ofthe immigration framework. This framework requires there to becertainty about when a review application has been made and when amatter has been ‘finally determined’ so it is clearwhether a person is eligible to be granted a substantive orbridging visa, and avoid becoming an unlawful non-citizen.Condensed timeframes for the conduct of a review also have theeffect of promoting the efficient review of applications forpersons in immigration detention. These measures are all consistentwith, and promote, the Government’s policy objective ofreducing the time unlawful non-citizens spend in detention andpreventing unlawful detention. Any limitation on the right to aneffective remedy and right to a fair hearing set out above may bedone given there is a legitimate purpose in promotingArticle9(4) of the ICCPR, in that the Tribunal may decide anapplication without delay, as well as Article10 in that itpromotes the right to humane treatment in detention.
Non-refoulement obligations
76. Article3(1) of the CAT provides ‘[n]o State Party shallexpel, return (‘refouler’) or extradite a person toanother State where there are substantial grounds for believingthat he would be in danger of being subjected totorture’.
77. These rights are engaged as Schedule2 provides for Tribunalreview of certain decisions made under the MigrationAct,including review of decisions in relation to protection visaapplicants, protection related bridging visa applicants, or formerprotection visa holders, and may impact on whether such applicantsare granted or continue to hold a visa. Depending on the outcome ofthe review, these persons may become liable for removal fromAustralia.
78. Schedule2 standardises the review process for migration andprotection visa applicants under new Part5 of theMigrationAct. It enables the Tribunal to exercise relevantstandard powers and procedures for reviewable migration andprotection decisions, and adjusts the matters covered by the‘exhaustive statement of the natural justice hearingrule’. In doing so, the Consequential Bill strengthens theadministrative review framework without removing or otherwisediminishing a visa applicant, or former visa holder’s, accessto administrative review of a decision to refuse to grant a persona visa, or cancel a person’s visa.
79. Schedule2 abolishes the IAA and provides that applicants thatare, or would have, been eligible to be referred to the IAA willinstead have their matter reviewed by the ART as a reviewableprotection decision, using the Tribunal’s standard powers andprocedures (as modified). The Consequential Bill extends theadministrative review available to applicants who would haveotherwise had access to review by the IAA, which provided a limitedreview (for example in relation to the consideration of newinformation).
80. Therefore, thisSchedulepromotes human rights by retaining protections fromremoval where a personengages non-refoulement obligations under the CATand the ICCPR, as well as under the Refugees Convention.
Freedom from unlawful expulsion
81. Article13 of the ICCPR provides that an alien lawfully in theterritory of a State Party may be expelled only in pursuance of adecision reached in accordance with law and shall, except wherecompelling reasons of national security otherwise require, beallowed to submit the reasons against their expulsion and to havetheir case reviewed by, and be represented before, the competentauthority.
82. A decision made by the Minister, or a delegate of the Minister torefuse to grant, or cancel, a visa, which could lead to the removalof the affected person from Australia as an unlawful non-citizen,must be made according to and within the statutory parametersprovided for by the MigrationAct and the ARTBill. Thisincludes compliance with procedural fairness requirements that aredesigned to give the person an opportunity to put forward theircase and submit reasons why a decision should be made in theirfavour.
83. Schedule2 of the Consequential Bill engages Article13insofar as it expands the powers and procedures available to theTribunal in the review of reviewable migration and protectiondecisions, and adjusts what is covered by the ‘exhaustivestatement of the natural justice hearing rule’ (existingsections 357A and 422B of the MigrationAct), thereby reducingthe extent of matters relating to the Tribunal’s conduct thatdisplace the common law natural justice hearing rule. Theseamendments ensure that there continues to be a robustadministrative review mechanism available for reviewable migrationand protection decisions, allowing applicants a fair opportunity toput forward their case.
84. In amending the powers and procedures available to the Tribunal inrelation to migration and protection matters,Schedule2does not remove or diminish the right toadministrative review which currently exists in theMigrationAct. The codification of procedural fairness remainsin place for critical aspects of review of reviewable migration andprotection decisions: the notification framework (including‘deemed receipt’), the information that must be put,and must not be put, before the applicant when exercising certaindecisions in a review, and the ability of the Minister to issuenon-disclosure certificates. These codified provisions providecertainty and clarity to applicants and also promote consistentdecision making by the Tribunal and Courts, and ensure applicantsare given a fair opportunity to present their case. Given the highvolume of matters heard, it is necessary to have certainty aboutwhat information can and must be put to an applicant, and when aparty has been notified, and any limitation is reasonable,necessary and proportionate.
85. Therefore, to the extent that this Schedule engages Article13of the ICCPR, it is compatible with the human rights protectedtherein.
Freedom from arbitrary and unlawfulinterferences with privacy
86. Article17 of the ICCPR provides that an interference with anindividual’s privacy must have a lawful basis and must not bearbitrary. That is to say, it must be in accordance with theprovisions, aims and objectives of the ICCPR and be reasonable inthe circ*mstances. Reasonable interferences with privacy aremeasures which are based on reasonable and objective criteria andwhich are proportionate to the purpose for which they areadopted.
87. The provisions relating to non-disclosure, collection, use andstorage of personal information will remain largely unchanged underSchedule 2 of the Consequential Bill. The harmonised provisions forreviewable migration and protection decisions, as amended, wouldcontinue to provide rigorous mechanisms to protect the personalinformation of and other confidential evidence given by the reviewapplicant.
88. As referred to above in relation to the right to a fair and publichearing, section 367B of the Consequential Bill provides that thereview of a reviewable protection decision must be in private.
89. Therefore, this Scheduleis compatible with, and promotes, thehuman rights protected by Article17.
Conclusion
90. This Scheduleis compatible with human rights. It advances theprotection of human rights, specifically the right to an effectiveremedy and a fair hearing, the right of non-refoulement and freedomfrom unlawful removal, and freedom from arbitrary and unlawfulinterferences with privacy. To the extent that thisSchedulelimits any human rights, those limitations arereasonable, necessary and proportionate.
Schedule3: Social Services
91. Schedule 3 of the Bill contains consequential amendments to anumber of Acts in the DSS portfolio.
92. The amendments retain special provisions that are fundamental tothe operation of Tribunal review for social security and childsupport matters, including provisions that disapply - orapply instead of - provisions of the ART Bill. Theseprovisions will be retained to, among other things, protect theright to social security and to uphold longstanding principles andpractices of administrative review in the social securitycontext.
93. Further, the proposed ART Bill amendments would establish Part 5Ain the ART Bill, providing a pathway for parties to reviews ofsocial services decisions (which include social security, familyassistance, child support, paid parental leave and studentassistance reviews) to seek second review of Tribunal decisions.These amendments to the ART Bill would ensure that the Tribunaloperates as intended when providing second review for socialservices applicants
94. The amendments to Schedule 3 engage the following human rights:
· right to social security in Article 9 of the ICESCR
· right to a fair and public hearing in Article14(1) of theICCPR
· right to freedom from arbitrary and unlawful interferences withprivacy in Article 17 of the ICCPR
· the best interests of the child and the right of a child to expresshis or her opinion in Articles3 and 12 of the CRC
· right to access to justice for people with disability in Article 13of the CRPD
Right to social security
Date of effectprovisions
95. Schedule 3 would engage the right to social security contained inArticle9 of the ICESCR. The right to social security requiresthat a social security scheme is established, and thatresponsibility is taken for ensuring the effective administrationof the system. The amendments clarify the date of effect provisionsunder the Social Security(Administration) Act 1999 to ensure they apply consistentlyand appropriately to Tribunal decisions. Ensuring the date ofeffect provisions operate consistently at each stage of review isimportant to ensure the efficient administration of the socialsecurity scheme and to ensure that the social security scheme isbeing applied fairly across the social security cohort.
Second reviewrights
96. Further, the ART Bill standardises and harmonises Tribunalproceedings where appropriate and to the extent possible. The ARTBill also introduces improvements to the conduct of social servicesreviews, so that the correct or preferable decision can be reachedduring the Tribunal’s first review, minimising the burdenthat seeking further review has on applicants. However, thesechanges will take time to implement and to mature. The retention ofsecond review for certain social services decisions will ensurethat existing systems and safeguards remain in place until that canoccur.
97. These amendments would preserve the right to social security andensure that social security law is applied in a fair and consistentmanner, promoting the right to social security.
The right to an effective remedy and theright to a fair hearing in Articles 2(3) and 14(1) of the
Private hearings
98. Schedule3 requires that most reviews for social security andchild support applicants occur in private. The amendments are forthe legitimate objective of facilitating access to the Tribunal andprotecting the privacy of individuals.
99. Private hearings for social security and child support applicantsare reasonable and necessary due to the need to consider the safetyof parties and the need for privacy (especially in the case ofchild support matters). Failing to provide a clear mechanism toprotect sensitive personal information may discourage individualsfrom seeking review of a decision. The measure is proportionate asthe need to protect sensitive personal information arises in allhearings of this type, justifying the broader approach to privatehearings. Supporting this proportionate approach, Schedule3removes the blanket prohibition on publishing these decisions. TheBills instead provide that decisions in social security or childsupport reviews may be published, provided identifying details andother sensitive information are first removed.
100. To the extent this Schedulecan be considered a limitation onArticle14 of the ICCPR, the limitation is permissible.
Excluding review by the guidance and appealspanel
101. The Schedule provides that guidance and appeals panel review willnot be available for most social security decisions. The legitimateobjective for this measure is to support the efficient operation ofthe administrative review system as a whole and the fast resolutionof matters.
102. Schedule 3 maintains the by right second review pathway for socialsecurity applicants. In circ*mstances where applicants may seeksecond review, further review could not be sought from the guidanceand appeals panel, as there is already a second layer of externaladministrative review for these matters. Allowing access to twofurther layers of review in the Tribunal is unnecessary and woulddelay the finalisation of matters. If Tribunal review does notprovide a satisfactory outcome, the claimant may pursue judicialreview in the courts on points of law.
103. However, the President may still refer an application for review ofa decision to the guidance and appeals panel on the basis it raisesan issue of significance to administrative decision-making, oneither first or second review.
104. To the extent this Schedule can be considered a limitation onArticle 2(3) of the ICCPR, the limitation is permissible
The right to freedom from arbitrary andunlawful interferences with privacy in Article 17 of the ICCPR
Publication ofsocial security decisions
105. These amendments would override provisions that would otherwiseoperate to prevent the Tribunal from publishing decisions in socialsecurity and family assistance matters, allowing de-identifieddecisions to be published.
106. The amendments engage the right to privacy in that they would allowfor the publication of information about a person. Requiring thede-identification of information prior to publication, soindividuals will not be identifiable from the decision that ispublished provides an appropriate safeguard and ensures that limitson the right to privacy are proportionate. The publication ofTribunal decisions, particularly where hearings must be conductedin private, supports open justice and consistency in Tribunaldecision-making, which advance the right to a fair hearingarticulated in Article 14 of the ICCPR.
107. The rights of parents and children are contained in Article3of the CRC and Article24(1) of ICCPR. Under the CRC,countries are required to apply the principle of the best interestsof the child. The principle applies to all actions concerningchildren and requires active measures to protect their rights andpromote their survival, growth, and wellbeing, as well as measuresto support and assist parents and others who have day-to-dayresponsibility for ensuring recognition of children’srights.
108. This Schedulepromotes the rights of the child by protectingchildren and parents’ rights to child support and familyassistance. It preserves existing rights for children such asensuring that proceedings for Tribunal review for social securityand child support matters are heard in private. Private hearingsprotect the identities of parties in child support and familyassistance matters and acknowledges a child’s right toanonymity in these types of matters.
Rights of access tojustice for people with disability in Article13 of theCRPD
109. Article13 of the CRPD requires the Government to ensureeffective access to justice for persons with disabilities,including facilitating their effective role in all legalproceedings.
110. Many users of the Tribunal will be persons with disabilities whomay require Tribunal review of a decision affecting them. ThisSchedulepromotes the right of access to justice for peoplewith disability by making consequential amendments to provide thatdecisions may be reviewable by the Tribunal (where they werepreviously reviewable by the AAT). Other categories of decisionssuch as Disability Support Pension decisions will continue toremain reviewable within the relevant jurisdictional area of theTribunal.
111. Most relevantly, the Tribunal will have jurisdiction to reviewdecisions made under the NDIS Act. The ARTBill establishes ajurisdictional area within the Tribunal for the review of decisionsmade under the NDIS Act. This ensures specialised expertise andtailored practices are developed and applied to the review of adecision under the NDIS Act within the Tribunal.
Conclusion
112. This Schedule is compatible with human rights. They advance theprotection of human rights, specifically the right to socialsecurity, right to an effective remedy, right to privacy, rights ofthe child and rights of access to justice for people withdisability. To the extent that the amendments limit the right to afair hearing and the right to privacy, those limitations arereasonable, necessary and proportionate.
\ Schedule4: Amendments relating to securitymatters
113. Schedule 4 of the Consequential Bill contains amendments to anumber of Acts, including (but not only) amendments that arerelevant to security matters (noting that some of the amendments inSchedule 4, including a number of amendments to the Freedom ofInformation Act 1982 (FOI Act) , do not relate to securitymatters). This Schedulewould make consequential amendmentsneeded as a result of the repeal of the AATAct and theestablishment of the Tribunal - particularly where matterswould be heard in the Intelligence and Security jurisdictional area(which would replace the AAT’s Security Division). Theschedule would facilitate the harmonisation of various provisionscontained across various subject-matter Acts relating toprotections for matters involving national securityinformation.
114. In addition to the rights engaged, as outlined above, theScheduleengages the right to an effective remedy and a fairhearing in Articles2(3) and14 of the ICCPR.
The right to an effective remedy and t he right to a fair hearing in Articles2(3)and 14(1) of theICCPR
115. Article 2(3) of the ICCPR provides that States shall undertake toensure the right to an effective remedy for any violation of rightsor freedoms recognised by the ICCPR. It includes the right to havea remedy determined by competent judicial, administrative orlegislative authorities. This right also encompasses the duty toensure component authorities enforce any such remedies whengranted.
116. Article14(1) of the ICCPR protects the right that all personsare equal before courts and tribunals. It further provides thatevery person, in the determination of ‘rights and obligationsin a‘suitatlaw’ is entitled toa‘fair and public hearing by acompetent,independent and impartial tribunal established by law’.Article14(1) also recognises that ‘the press and publicmay be excluded from all or Partof a trial for reasons ofmorals, public order (ordre public) or national security in ademocratic society, or when the interest of the private lives ofthe parties so requires…’.
117. The extent to which Article14(1) applies to administrativereview proceedings (whether such proceedings constitute a‘suitatlaw’) is not fully settled.
Conferring jurisdiction on the Tribunal
118. Schedule4 promotes the right to an effective remedy by makingconsequential amendments to provide that decisions may bereviewable by the Tribunal (where they were previously reviewableby the AAT). This maintains the ability of persons to seekindependent, external review of government decisions. TheSchedulewould amend relevant Acts to continue existinglimitations on who may seek review of a decision (moving relevantprovisions from the AATAct to the Act which confers thejurisdiction). These amendments only prevent persons other than thesubject from making an application (for example, by preventingorganisations or associations from separately seeking review), anddo not engage this right.
Excluding review by the guidance and appealspanel
119. The Scheduleprovides that guidance and appeals panel reviewwill not be available for decisions under the FOIAct. Thelegitimate objective for this measure is to support the efficientoperation of the administrative review system as a whole and thefast resolution of matters.
120. The Schedule maintains the existing pathway for applicants seekingreview under the FOIAct to seek review by the InformationCommissioner (IC) prior to review by the Tribunal. These applicantswill not be able to seek further review from the guidance andappeals panel, as there is already a layer of externaladministrative review for these matters. Allowing access to twofurther layers of review in the Tribunal is unnecessary and woulddelay the finalisation of matters. If Tribunal review does notprovide a satisfactory response, the claimant may pursue judicialreview in the courts on points of law.
121. The guidance and appeals panel would have a ‘guidance’function in relation to matters or decisions that raise an issue ofsignificance to administrative decision-making. However,section93A of the FOIAct provides an ability for the ICto issue guidelines about the operation of the FOIAct. It isreasonable and necessary to exclude the ‘guidance’function of the Tribunal in relation to FOI matters to avoidconflicts with guidelines issued by the IC under the FOIAct.The guidance function exists to provide guidance to otherdecision-makers. Restricting access to the function for certaintypes of matter does not engage the rights in the ICCPR, as they donot impact the ability of an individual applicant to seek review oftheir decision.
122. To the extent this Schedulecan be considered a limitation onArticle2(3) of the ICCPR, the limitation is permissible.
Private hearings
123. While generally, the Tribunal will operate on a model of publichearings and publication of decisions, proceedings in theIntelligence and Security jurisdictional area will be heard inprivate. This Schedulewill repeal provisions requiringprivate hearings in these matters; however, these settings will beconsolidated and retained in the ARTBill.
124. Provision for private hearings in these circ*mstances ispermissible under Article14(1), which contemplates nationalsecurity as a reason for excluding the public from proceedings.Matters reviewable in the Intelligence and Security jurisdictionalarea involve national security information.
Conclusion
125. This Scheduleis compatible with human rights. It advances theprotection of human rights, specifically the right to an effectiveremedy and a fair hearing. To the extent that theSchedulelimits any human rights, those limitations arereasonable, necessary and proportionate.
Schedules 5 to 14: Agriculture,Fisheries and Forestry; Attorney-General; Climate Change,Energy, the Environment and Water; Defence; Employment andWorkplace Relations; Finance; Foreign Affairs and Trade; Health andAged Care; Industry, Science and Resources; and Infrastructure,Transport, Regional Development, Communications and the Arts
126. Schedules5 to14 (various portfolios) contain a range ofminor amendments. The amendments would make terminology changes,updating outdated references to the ‘Administrative AppealsTribunal’ and ‘ Administrative Appeals TribunalAct1975 ’ to refer instead to the‘Administrative Review Tribunal’ and‘ Administrative Review Tribunal Act2024 ’.These amendments also make minor technical amendments to ensurelegislation continues to operate in substantively the same way inrelation to the Tribunal.
127. In addition to the rights engaged, as outlined above, theScheduleengages the right to an effective remedy inArticles2(3) of the ICCPR.
The right to an effective remedy inArticle2(3) of the ICCPR
128. Article 2(3) of the ICCPR provides that States shall undertake toensure the right to an effective remedy for any violation of rightsor freedoms recognised by the ICCPR. It includes the right to havea remedy determined by competent judicial, administrative orlegislative authorities. This right also encompasses the duty toensure component authorities enforce any such remedies whengranted.
Conferring jurisdiction on the Tribunal
129. These Schedules promote the right to an effective remedy by makingconsequential amendments to provide that decisions may bereviewable by the Tribunal (where they were previously reviewableby the AAT). This maintains the ability of persons to seekindependent, external review of government decisions.
Conclusion
130. These Schedules are compatible with human rights. The Schedulesadvance the right to an effective remedy.
Schedule15: Veterans’Affairs
131. This Schedulewould make consequential amendments tolegislation in the Veterans’ Affairs portfolio, needed as aresult of the repeal of the AATAct and the establishment ofthe Tribunal. The schedule would amend legislation to retainexisting procedural provisions necessary to ensure the effectivereview of veteran matters, in recognition of the physical andmental health circ*mstances of the veteran cohort and the uniquenature of military service.
132. Establishment of the Tribunal does not alter access arrangements tothe VRB. The Tribunal may review matters in the first instance insome cases (first-tier review) and in others reviews mattersarising from decisions of the VRB (second-tier review).
133. In addition to the rights engaged, as outlined above, theScheduleengages the right to an effective remedy and theright to afair hearing in Articles2(3) and 14 of theICCPR.
Right to an effective remedy and right to afair and public hearing in Articles2(3) and 14 of theICCPR
134. Article 2(3) of the ICCPR provides that States shall undertake toensure the right to an effective remedy for any violation of rightsor freedoms recognised by the ICCPR. It includes the right to havea remedy determined by competent judicial, administrative orlegislative authorities. This right also encompasses the duty toensure component authorities enforce any such remedies whengranted.
135. Article14(1) of the ICCPR provides that all persons shall beequal before the courts and tribunals. It further provides thateveryone is entitled, in the determination of their ‘rightsand obligations in a suit at law’, to a ‘fair andpublic hearing by a competent, independent and impartial tribunalestablished by law’.
Conferring jurisdiction on the Tribunal
136. Schedule15 promotes the right to an effective remedy bymaking consequential amendments to provide that decisions may bereviewable by the Tribunal (where they were previously reviewableby the AAT). This maintains the ability of persons to seekindependent, external review of government decisions for decisionsmade under the Acts in the Veterans’ Affairs portfolio.
Applications cannot be made to the guidanceand appeals panel
137. The schedule provides that where the VRB has made a determinationunder the Veterans’ Entitlements Act1986 (VEA)or the Military Rehabilitation and CompensationAct2004 (MRCA) prior the Tribunal’s review, therecannot be a further appeal of the Tribunal’s decision to theguidance and appeals panel. The legitimate objective for thismeasure is to support the efficient operation of the merits reviewsystem as a whole and to promote the fast resolution ofmatters.
138. The schedule maintains the existing pathway for applicants seekingreview under the VEA or the MRCA to seek review by the VRB prior toreview by the Tribunal. These applicants will not be able to seekfurther review from the guidance and appeals panel, as there isalready a layer of external administrative review for thesematters. Allowing access to two further layers of review in theTribunal is unnecessary and would delay the finalisation ofmatters. If Tribunal review does not provide a satisfactoryresponse, the claimant may pursue judicial review in the courts onpoints of law.
139. Precluding applicants to seek review from the guidance and appealspanel is proportionate, as the President of the Tribunal retainsthe ability to refer matters to the guidance and appeals panel onfirst review, should the President be satisfied that theapplication raises an issue of significance to administrativedecision-making and if it is appropriate in the interests ofjustice to re-constitute the Tribunal. This provides that the keysystemic benefits of the guidance and appeals panel remainsavailable to applicants.
140. To the extent this Schedulecan be considered a limitation onArticle2(3) of the ICCPR, the limitation is permissible.
141. These rights are promoted through the amendments to Veterans’Affairs portfolio legislation, which retain existing specialarrangements for certain tribunal procedures and practices, inrecognition of military service. The Schedulealso retains theexisting unique arrangements of having two merits review bodies forveteran matters through the VRB and the Tribunal.
Conclusion
142. The Scheduleis compatible with human rights. Despite certaindecisions being excluded from application to the guidance andappeals panel, the Scheduleadvances the human rights ofveterans and their dependants to an effective remedy and a fair andpublic hearing. To the extent that the portfolio may limit anyhuman rights, those limitations are reasonable, necessary andproportionate.
Schedule16 and 17: Transitionalprovisions and repeal of the AATAct
143. Schedule16 of the Consequential Bill contains measures toeffect the transition from the AAT to the ART. This includestransitioning the Tribunal’s active, pending and potentialcaseloads, including matters currently before the courts, tominimise disruption and to maintain review rights. TheConsequential Bill also contains conditions for certain AAT members(including the President) to transition to the ART, and sets outarrangements for certain members who do not.
144. In addition to the rights engaged, as outlined above, theScheduleengages the following rights:
· right to an effective remedy and a fair and public hearing inArticles2(3) and14 of the ICCPR
· right to work and rights in work in Articles6(1) and 7 of theICESCR.
Right to an effective remedy and a fair andpublic hearing in Articles2(3) and 14 of the ICCPR
145. Article2(3) of the ICCPR requires that a person whose rightsor freedoms are violated shall have an effective and enforceableremedy determined by competent judicial, administrative orlegislative authorities. Article14(1) of the ICCPR providesthat all persons shall be equal before the courts and tribunals. Itfurther provides that everyone is entitled, in the determination oftheir ‘rights and obligations in a suit at law’, to a‘fair and public hearing by a competent, independent andimpartial tribunal established by law’. These rights arepromoted through the transitional provisions.
146. The transitional provisions in Schedule16 engage with theright to a fair and public hearing in Article14(1) of theICCPR and the right to an effective remedy in Article2(3) ofthe ICCPR. Schedule16 provides for the continuity ofapplications to, and proceedings in, the AAT before thecommencement day of the new Tribunal.
147. Schedule16 ensures that applicants who had a right to file,or have filed, an application to the AAT are not disadvantaged as aresult of the commencement of the ARTBill. To the extentpossible, Schedule16 ensures continuity in reviews that havecommenced prior to the Tribunal coming into operation, minimisingconfusion and unnecessary delay, and ensuring the applicant’sright to a fair hearing and effective remedy are promoted.
Right to work and rights in work inArticles6(1) and 7 of the ICESCR
148. Article6(1) guarantees the right to work, which includes theright of everyone to the opportunity to gain their living by workwhich they freely choose or accept. Article7 recognises theright of everyone to the enjoyment of just and favourableconditions of work.
149. The transitional provisions in Schedule16 and 17 engage theserights. Repeal of the AATAct would cease the employment ofexisting members and staff in the AAT. Schedule16 providestransitional provisions which promote the right to work byproviding for the continued employment in the new Tribunal of allongoing and non-ongoing staff, members who are judges, andmembers who have been appointed to the AAT through a merit-basedprocess since January2023.
150. Schedule16 ensures that members of the AAT who automaticallytransfer to the Tribunal (because they have been appointed througha merit-based process since January2023) will retain the sameterms and conditions of employment, and that their remunerationwill not be reduced for the period remaining on the term of theirAAT appointment. Accordingly, their terms and conditions will notbe diminished.
151. Schedule16 ensures that members of the AAT who are appointedto the Tribunal will have their previous remuneration carried overfor up to fourmonths (unless their remuneration as a memberof the ART would be higher). These arrangements ensure that the AATmembers’ right to work and rights in work are promoted.
152. All current members have had the opportunity to apply formembership of the Tribunal through a merit-based process consistentwith the Guidelines of Appointments to the AAT. Schedule16provides that full-time members of the AAT who are not appointed tothe Tribunal, but whose terms as AAT members would have continuedbeyond the abolition of the AAT, receive compensation for thetermination of their appointment.
Conclusion
153. This Scheduleis compatible with human rights. It advances theprotection of human rights, specifically the right to an effectiveremedy and a fair hearing. To the extent that the Schedulemaylimit any human rights, those limitations are reasonable, necessaryand proportionate.
NOTES ONCLAUSES
Item 1:Short title
154. This item provides for the short title of the Act to be enacted bythe Bill to be the Administrative ReviewTribunal (Consequential and Transitional Provisions No. 1)Act2024 (Consequential Bill).
Item 2: Commencement
155. This item provides for the commencement of each provision in theConsequential Bill, as set out in the table at subclause 2(1).
156. Table item 1 provides that items 1-4 of the Consequential Billcommence on the day the Consequential Bill receives the RoyalAssent.
157. Table item 2 provides that Schedules 1-15 of the Consequential Bill(which contains consequential amendments, including referencechanges, to a number of Commonwealth Acts) will commence at thesame time as the Administrative Review Tribunal Bill 2024 (ARTBill) commences.
158. Table item 2A provides that Schedule 16, item 1 (which contains thedefinitions needed to support the transition from the AAT to theART) commences the day after the Consequential Bill receives theRoyal Assent. This item contains definitions which are referred toin other items in Schedule 16 which will commence on the day afterthe Consequential Bill receives Royal Assent. The definitions mustbe in effect in order for Schedule 16 to be correctlyunderstood.
159. Table item 3 provides that Schedule 16, items 2-30 willcommence at the same time as the ART Bill.
160. Table item 4 provides that Schedule 16, item 31 will commence theday after the Consequential Bill receives the royal assent.
161. Table item 4A provides that Schedule 16, items 32 (AAT members notappointed as ART members) and 33 (Compensation) commence at thesame time as other Schedules in the Consequential Bill. That is,they are to commence at the same time as the ART Bill, but will notcommence if the ART Bill does not commence.
162. Table item 4B provides that Schedule 16, item 33A (Appointments tocommence at or shortly after the transition time) will commence theday after the ART Bill receives the Royal Assent. Section4 ofthe Acts Interpretation Act 1901 (Acts Interpretation Act) empowers the Attorney-General to makeappointments under the ART Bill between its enactment andcommencement. It is important for the effective operation of theitem for it to commence on enactment of the ART Bill so that itapplies to any appointments made from the time they are able to bemade.
163. Table item 5 provides that Schedule 16, items 34-51 commence at thesame time as other Schedules in the Consequential Bill. That is,they are to commence at the same time as the ART Bill, but will notcommence if the ART Bill does not commence.
164. Table item 5A provides that Schedule 16, item52 (Consultationin relation to rules before the transition time) commences the dayafter the Bill receives the Royal Assent. This item enables theMinister to make rules under the ARTBill ahead ofcommencement of the ART Bill (through consultation with the AATPresident). As such, the provision must commence as soon aspossible to allow sufficient time for the Minister to developrules, and undertake the appropriate consultation for rules to besettled and in place ahead of the Tribunal's commencement.
165. Table item 6 provides that Schedule 17 (which repeals the Administrative Appeals TribunalAct1975 (AATAct)) commences at the same time asother Schedules in the Consequential Bill. That is, they are tocommence at the same time as the ART Bill, but will not commence ifthe ART Bill does not commence.
166. Item2(2) specifies that information in column 3 of the tableat item2(1) is not a part of the Consequential Bill, andinformation may be inserted in this column, or information in itmay be edited, in any published version of the ConsequentialBill.
Item 3: Schedules
167. This item clarifies the interaction of amendments to legislationwithin Schedules to the Consequential Bill. Where legislation isamended in a Schedule in the Consequential Bill, those amendments(including any repeal) has effect as is contained in the Schedule.Any other item in a Schedule has effect according to its terms.
Item 4: References to the AdministrativeAppeals Tribunal Act 1975 etc.
168. This item updates references in legislation in force at the timethat the ART Bill commences to appropriate, equivalent, or nearequivalent references.
169. The item updates references to the AAT Act, provisions of the AATAct, the Administrative Appeals Tribunal (AAT) itself or to theRegistrar of the AAT to references to the ART Bill, the equivalentprovision/s of the ART Bill, the Administrative Review Tribunal(Tribunal), or to the CEO and Principal Registrar of the Tribunal.This provision ensures that if any legislation is not updated bythe Consequential Bill, or the Administrative Review Tribunal(Consequential and Transitional Provisions No.2) Bill, it canstill operate as originally intended.
SCHEDULE1—TREASURY
OUTLINE
170. Schedule1 of the Consequential Bill contains consequentialamendments to a number of Acts in the Treasury portfolio.
171. The amendments retain special provisions that are fundamental tothe operation of Tribunal review for tax and charity matters,including provisions that disapply - or apply instead of- provisions of the ARTBill. These provisions ensurethe workability of these frameworks, protect tax revenue collectionand uphold longstanding core tax principles and practices. Theschedule includes provisions:
· restricting who can apply for review, who can be joined as a partyto proceedings and mandating private hearings at theapplicant’s request to protect taxpayer confidentiality andotherwise ensure the workability of proceedings
· retaining the longer 60-day standard timeframe for lodgingapplications to ensure consistency with the broader reviewframeworks for such matters and avoid disadvantaging applicants
· maintaining rules limiting the application for review to theTribunal to the grounds stated in the application for internalreview to ensure the review is focused on directly relevant issues,promoting the efficient conduct of proceedings
· retaining rules which require the initial lodgement with theTribunal of all documents that are necessary to the review (ratherthan all documents relevant to the review), noting the Tribunalwill be able to request additional documents it requires inparticular cases and this ensures the workability and efficientconduct of tax proceedings
· maintaining rules which provide that the applicant has the burdenof proof for tax and charity matters, to ensure the workability ofsuch proceedings and consistency with Australia’s tax systembeing based on self-assessment
· restricting the operation of the Tribunal’s power to makeorders staying or otherwise affecting the implementation of adecision whilst the decision is under review, to protect theintegrity and workability of the tax system and noting the stronglinkages charity decisions have with other government decisions,and avoid imposing undue costs associated with multiple changes toa decision whilst it is still under review.
172. Some amendments remove special procedures for tax matters. In thesecases, the standard provisions in the ARTBill apply. Otheramendments provide greater harmonisation of provisions that applyinstead of the ARTBill provisions for tax matters.
173. In addition, the amendments remove the general exemption from thestandard framework for a decision-maker to give reasons for adecision on request, which currently applies for taxation matters.This is consistent with the current administrative practice of theAustralian Taxation Office, where reasons are generally alreadygiven for decisions in accordance with best practice foradministrative decision-making.
174. Amendments are made to ensure that the new guidance and appealspanel framework operates consistently with the broader taxation andcharity frameworks.
175. The Schedulealso makes a range of minor amendments. Thisincludes amendments to update terminology, such as outdatedreferences to the AAT or AATAct. These amendments ensure thatthe Tribunal has jurisdiction to review decisions that arereviewable by the AAT and that various provisions continue tooperate in the same way as the current law for the Tribunal. Otherminor amendments include relocating exceptions from standardprovisions from the AATAct to a Treasury portfolio Act,replacing references to provisions of the AATAct withreferences to the equivalent provision under the ARTBill andrepealing redundant provisions which contain outdated terminology.In some cases, provisions are amended to cover both the AAT andTribunal to ensure these provisions operate as intended or tomanage transitional issues.
176. This Schedulecontains consequential amendments covering thefollowing Acts in the Treasury portfolio:
· A New Tax System (Australian Business Number) Act1999
· ASIC Supervisory Cost Recovery Levy (Collection) Act2017
· Australian Charities and Not-for-profits Commission Act2012
· Australian Securities and Investments Commission Act2001
· Australian Small Business and Family Enterprise Ombudsman Act2015
· Business Names Registration Act 2011
· Business Names Registration (Transitional and ConsequentialProvisions) Act2011
· Commonwealth Registers Act 2020
· Competition and Consumer Act 2010
· Corporations Act 2001
· Crimes (Taxation Offences) Act 1980
· Excise Act 1901
· Financial Regulator Assessment Authority Act 2021
· Financial Sector (Transfer and Restructure) Act 1999
· Fringe Benefits Tax Assessment Act 1986
· Income Tax Assessment Act 1936
· Income Tax Assessment Act 1997
· National Consumer Credit Protection Act 2009
· Payment Times Reporting Act 2020
· Petroleum Excise (Prices) Act 1987
· Petroleum Resource Rent Tax Assessment Act 1987
· Retirement Savings Accounts Act 1997
· Small Superannuation Accounts Act 1995
· Superannuation Industry (Supervision) Act 1993
· Superannuation (Self Managed Superannuation Funds) TaxationAct1987
· Tax Agent Services Act 2009
· Taxation Administration Act 1953
· Taxation (Interest on Overpayments and Early Payments) Act1983.
177. Amendments to a particular Act may be contained in both Part1(Main amendments) and Part2 (Bulk amendments) of theSchedule.
178. Schedule4 of the Consequential Bill (Amendments relating tosecurity matters) contains consequential amendments to the Foreign Acquisitions and Takeovers Act1975 .
Part1 — Mainamendments
General terminology changes
179. A range of itemsin this Schedulemake simple terminologychanges, such as repealing outdated references to theAdministrative Appeals Tribunal, the AAT and the AdministrativeAppeals Tribunal Act1975 and replacing them withreferences to the Administrative Review Tribunal, the ART and the Administrative Review Tribunal Act2024 . Theseamendments ensure that the Tribunal has jurisdiction to reviewdecisions that are reviewable by the AAT, and that the provisionsunder those laws continue to operate in substantively the same wayfor the Tribunal.
Australian Charities andNot-for-profits Commission Act 2012
Items1, 2 and 3: Subsection160-10(7),paragraph160-25(a) and Division165 (heading)
Terminology changes
180. These itemsmake terminology changes. See explanation ofgeneral terminology changes above.
Item4: Sections165-5to165-45
Special rules affecting operation ofstandard ARTBill provisions for charity context
181. This itemincludes amendments that retain special provisionsthat are fundamental to the operation of Tribunal review forcharity matters, including provisions that disapply - orapply instead of - provisions of the ARTBill. Theseprovisions ensure the workability of the charity framework. The keyspecial rules are outlined above in the outline of thisSchedule.
182. Some amendments remove special procedures for charity matters. Inthese cases, the standard provisions in the ARTBill willapply.
183. Amendments are made to ensure that the new guidance and appealspanel framework operates consistently with the broader charityframework.
184. This is achieved by repealing sections165-5 to165-45 of the ACNCAct and substituting new provisions,as explained in detail below.
Section 165-5 ART Act applies subjectto this Division
185. Generally, this provision has been amended to reflect updatedterminology and modern drafting practices. This ensures that theprovision operates in substantively the same way in relation to theTribunal. The provision provides that theARTBill applies for certain decisions andapplications subject toDivision165 of the ACNCAct(which contains key provisions relating to the procedure on reviewthat disapply, or apply instead of, ARTBill provisions).
Ensuring majority of special rules forcharity matters apply for proceedings of the guidance and appealspanel
186. In addition, these amendments clarify that generally, the relevantprovisions in the ACNCAct apply for proceedings of theguidance and appeals panel in the same way as they do for otherproceedings of the Tribunal.
Special rules for charity matters that applydifferently where a Tribunal decision is referred to the guidanceand appeals panel
187. However, some special procedures for applications for review ofcharity decisions do not apply to guidance and appeals panelproceedings.
188. Specifically, the following provisions do not apply:
· section165-15 of the ACNC Act (when and how to apply to theART), as amended by this Schedule
· subsections 165-25(1) and (2) of the ACNC Act (giving documents tothe ART), as amended by this Schedule
· subsections 165-10(1), (2) and (3) of the ACNC Act (special rulesfor objection decisions or extension of time refusal decisions), asamended or inserted by this Schedule.
189. The provisions in section165-15 of the ACNCAct whichrelate to when and how to apply to the Tribunal for review of adecision are not needed for Tribunal decisions referred to theguidance and appeals panel. A Tribunal decision is referred to theguidance and appeals panel through the President making a referralafter application by a party to the proceeding (clauses123and 128 of the ARTBill). Clauses124 and 125 of theARTBill, which provide general rules about when and how toapply for referral of a Tribunal decision to the guidance andappeals panel, will apply to these proceedings.
190. The provisions in subsections165-25(1) and (2) of theACNCAct which relate to initial lodgement of documents withthe Tribunal are not needed for Tribunaldecisions referred to the guidance and appeals panel, as theTribunal already has all the documents from the consideration ofthe matter when it was initially lodged. This is provided for byclause131 of the ARTBill, which allows the Tribunal tohave regard to documents lodged in the earlier proceeding for aproceeding of the guidance and appeals panel.
191. Subsection165-10(1) of the ACNC Act relates to the specialrules for who can apply and when to apply to the Tribunal for areview of a charity decision. Clauses 123 and 125 of theARTBill, which provide general rules for who can apply andwhen to apply to refer a Tribunal decision to the guidance andappeals panel, will apply to these proceedings.
192. The provisions in subsections 165-10(2) and (3) of the ACNC Act relate to the period for applying to refera Tribunal decision to the guidance and appeals panel. Theseare not needed for matters already referred to the guidance andappeals panel.
Section 165-10 Special rules forobjection decisions or extension of time refusal decisions
193. These amendments update legislative references to provisions of theAATAct, replacing these with references to the equivalentprovisions under the ARTBill . This ensures that theprovision continues to disapply provisions about who can apply tothe Tribunal, the operation and implementation of a decision thatis subject to review and the operation and implementation of adecision that is subject to appeal for certain decisions under theACNC Act.
Subsection165-10(1): Who canapply for review
194. Clause 17 of the ARTBill provides that anyone whose interestsare affected by a decision may apply to the Tribunal for review.Subsection165-10(1) disapplies this for objection decisionsand extension of time decisions. Disapplying this provision ensuresthat only the entity who received the decision can initiateTribunal review, which is necessary for the workability of theframework in the charity context for a number of reasons.
195. Entities registered as charities receive tax benefits and it is aprinciple of our tax system that disputes by persons against taxdecisions are matters solely between the person and thedecision-maker. It also ensures donors and members of charitiescannot apply for review on the basis that their interests areaffected by a decision. Such persons who are indirectly affected bydecisions may also not have access to private informationconsidered in objection decisions.
Subsection165-10(1): When to apply forreview
196. Clause 18 of the ARTBill provides that the rules may providethe time limit for an application to the Tribunal, but that thiscannot be less than 28 days after the day the decision is made.Subsection165-10(1) disapplies this for objection decisionsand extension of time decisions. This provides clarity on theinteraction between amended section165-15 of the ACNC Act(explained further below) and the general rule for when to applyfor review under the ARTBill .
Subsections 165-10(2) and (3): Specialrules affecting operation of standard provisions in ARTBillabout when to apply to refer Tribunal decision to the guidance andappeals panel, to support certainty for the finality of charitydecisions
197. This amendment adjusts the operation of clause 125 of theARTBill which allows the President to, at any point in time,extend the period for applying for a referral to the guidance andappeals panel beyond the standard 28-day period (from the date theTribunal provides a statement of reasons for the decision) thatotherwise applies. Instead, this amendment provides the Presidentmay only extend the period for making such an application withinthat 28-day period. Further, if the President allows a longerperiod than the standard 28 days, then the President must notifythe Commissioner of the ACNC as soon as practicable after providingthat extension of time.
198. Clause 126 of the ARTBill requires the President to givenotice of their decision to refer the Tribunal decision to theguidance and appeals panel or refuse the guidance and appeals panelreferral application to both the applicant and thedecision-maker.
199. Combined with the amendments made by this item, this gives theCommissioner of the ACNC certainty about when a decision becomesfinal and when appropriate action to implement a Tribunal decisioncan begin. See explanation of amendments inserting new section165-35 of the ACNC Act (whichreplaces former section165-45) below regarding the testfor when charity decisions become final, the importance ofcertainty for this test, and the Commissioner of the ACNC’sobligations regarding implementing final decisions.
Subsection165-10(4): Operationand implementation of a decision that is subject to review
200. Clause 32 of the ARTBill provides that a decision that issubject to review by the Tribunal continues to operate, unless theTribunal makes an order staying or otherwise affecting theoperation or implementation of the decision, to ensure theeffectiveness of the review.
201. This standard provision is disapplied in the charity context partlybecause a more specific rule tailored to the charity context isalready provided under the ACNC Act. Section165-50 of theACNC Act provides that the fact that a review is pending does notin the meantime interfere with, or affect, the administrativedecision and any tax, additional tax or other amount may berecovered as if no review were pending.
202. In addition, it is necessary to disapply the provisions allowingthe Tribunal to make orders staying or otherwise affecting theoperation or implementation of the decision, in order to providecertainty for the sector.
203. For example, the Commissioner of the ACNC’s decisions haveflow-on implications for the work of other government departmentsand agencies. Given these linkages, providing the Tribunal with theauthority to change objection decisions made by the Commissioner ofthe ACNC without a full review would introduce administrative costsfor these other departments and agencies who would have to changetax assessments, the issuance of grants or similar decisions onmultiple occasions.
Subsection165-10(5): Tribunaldecision continues to operate unless Tribunal orders otherwise- rules disapplied to ensure guidance and appeals panelframework consistent with charity framework
204. The amendments disapply clause 127 of the ARTBill relating tothe status of a first Tribunal decision, where there is asubsequent referral to the guidance and appeals panel for theTribunal to consider the decision again.
205. Clause 127 of the ARTBill provides that a referral to theguidance and appeals panel does not affect the operation of thefirst Tribunal decision or prevent the taking of action toimplement that Tribunal decision.
206. This is disapplied for charity matters because it is contrary tothe intention underpinning new section165-35 of the ACNC Act,which requires action to implement a Tribunal decision only once ithas become final. New section165-35 of the ACNC Act (whichreplaces former section165-45) ensures that the Commissionerof the ACNC is required to implement a Tribunal decision within 60days after the decision becomes final.
207. A decision is not considered final until the period for lodging acourt appeal has been exhausted. New section165-35 of theACNC Act (which replaces former section165-45) alsoensures that a decision will not be considered final until theperiod for applying for a guidance and appeals panel referral hasbeen exhausted, and any guidance and appeals panel review of theTribunal has also been finalised. For further information, seeexplanation of amendments inserting new section165-35of the ACNC Act (which replaces former section165-45)below.
208. Clause 127 of the ARTBill provides that the Tribunal may staythe operation or implementation of the first Tribunal decision inorder to secure the effectiveness of a guidance and appeals panelreferral application.
209. This is disapplied for charity matters because it is unnecessary.In the charity context, the Commissioner of the ACNC is notrequired to implement the first Tribunal decision until thedecision or dispute is finalised (making a stay of that Tribunaldecision unnecessary). For further information, see explanation ofnew section165-35 of the ACNC Act (which replacesformer section165-45) as described briefly above and infurther detailbelow.
Subsection165-10(6): Operationand implementation of a decision that is subject to appeal
210. Clause 178 of the ARTBill provides that a decision of theTribunal that has been appealed under the ARTBill to the FCAor the FCFCOA continues to operate. Clause178 also ensuresthe Court may make an order staying or otherwise affecting theoperation or implementation of either the Tribunal decision or theoriginal decision in order to ensure the effectiveness of thehearing.
211. Disapplying this provision in the charity context is necessary toprovide certainty for the sector, as further explained above inrelation to the rules about the operation and implementation of adecision that is subject to review.
Section 165-15 When and how to applyto the ART
When to apply
212. The amendments ensure that despite the general rule for when toapply for review provided for under clause 18 of the ARTBill,an application for review of a decision must be madewithin60days after the person has been served withnotice of the decision. This maintains the position under theexisting law, which ensures consistency with the time period forlodging objections with the Commissioner of the ACNC, consistencywith the timeframe for filing an appeal to the FCA, as well as withthe timeframes that apply for tax matters.
213. See explanation of section14ZZC of the TAA for furtherinformation.
How to apply
214. The amendments also ensure that despite subclause 34(1) of theARTBill, which relates to the manner in which applicationsare to be made, consistent with the existing law, applications inthe charity context must be in writing and set out a statement ofreasons for the application.
216. Although a failure to include a statement of reasons does notaffect the validity of the application, ensuring an application forreview includes these minimum content requirements ensures theTribunal and the Commissioner of the ACNC are put on notice aboutthe scope of the review. This includes being put on notice aboutinformation the Commissioner of the ACNC needs in order to meettheir initial lodgement obligations, as set out insection165-25 of the ACNC Act (as amended by thisSchedule).
217. It is expected that where an application does not include astatement of reasons for the application in the first instance,such a statement will need to be provided before the Tribunalnotifies the decision-maker of the application for review of thedecision for the purposes of subsection165-25(2) (as amendedby this Schedule), noting that the Commissioner of the ACNChas28days to lodge initial documents with the Tribunalstarting from the day the Tribunal notifies them of theapplication.
218. Clause 34 of the ARTBill provides that the manner of applyingand required content of the application will be set out in practicedirections. An application for review in the charity context muststill comply with any such requirements set out in practicedirections, to the extent that the requirements are consistent withthe application being in writing and setting out a statement ofreasons for the application.
Prescribed fees
219. Consistent with the standard provisions in the ARTBill, avalid application does not require the application to beaccompanied by the prescribed application fee. Under theARTBill, a fee may be payable in relation to the applicationand an application may be dismissed if the fee is not paid within aparticular time. Prior to these amendments, a valid application forcharity and other matters required the application to beaccompanied by the prescribed application fee.
Section 165-20 Parties to proceedingsfor review
220. The amendments ensure that, despite paragraph 22(1)(c) of theARTBill, the Tribunal may only join another party to theproceedings if the Tribunal is satisfied that the applicant givestheir consent.
221. This retains the position under the existing law which maintainsthe principle of confidentiality in taxation hearings.
Section 165-25 Giving documents to theART
222. The amendments replace clause 23 of the ARTBill, which isabout the decision-maker giving reasons and documents to theTribunal, with rules tailored for the charity context.
223. This includes providing a list of certain documents that arerequired for initial lodgement, which utilises language from theexisting law which is well understood and consistent with languageused in the ACNCAct.
224. Clause 23 of the ARTBill requires a decision-maker togive documents that are in their possession and control that areconsidered to be relevant to the review. In contrast, theseamendments ensure that in the charity context , thedecision-maker is required to give documents that are intheir possession and control that are considered to be necessary to the review of the relevant decision and to givea list of such documents. This aligns with the lodgementrequirements that apply for taxation matters, which facilitate theefficient conduct of proceedings, avoiding large volumes ofdocuments being lodged with the Tribunal that may never be referredto or are otherwise unnecessary.
226. Clause 26 of the ARTBill provides the Tribunal with the powerto obtain any additional documents it requires in particular cases.Subsections165-25(5) and (6) of the ACNCAct facilitatesthe Tribunal’s exercise of such powers (see below).
Subsections 165-25(5) and (6): Requestinglist of relevant documents
227. The amendments insert subsection165-25(5) of theACNCAct to ensure that consistent with the existing law, theTribunal can require a decision-maker to lodge with theTribunal a copy of a list of documents in their possession orcontrol considered to be relevant to the review. The list ofrelevant documents would enable the Tribunal to consider whetherfurther documents should be lodged for charity matters.
228. Subsection165-25(6) of the ACNCAct clarifies that theTribunal’s power to request the list of relevant documents isin addition to the Tribunal’s powers provided for under theARTBill to require additional documents be lodged.
Requesting documents orally in aconference
229. Section165-25 of the ACNCAct provides the AAT with thepower to request documents orally at a conference, assubsection37(2) of the AATAct only allows the AAT torequest documents in writing.
230. This is not necessary for the ARTBill, as the Tribunal willhave the ability to request documents either orally or by writtennotice under clause 26 of the ARTBill .
Subsection165-25(7): Deeming rules
231. The amendments insert subsection165-25(7) of theACNCAct which provides that for the purposes of theARTBill , the requirement to give documents insection165-25 is taken to be the requirement to givedocuments under particular provisions in the ARTBill . Similarly , documents given under section165-25are taken to be given under particular provisions in theARTBill .
232. The deeming rules clarify that satisfying the requirements aboutgiving documents to the Tribunal in section165-25 of theACNCAct will satisfy the requirements in theARTBill.
233. The deeming rules also ensure that various provisions under theARTBill, which will apply if a decision-maker isrequired to give documents under particular provisions of theARTBill or if a decision-maker has given documentsunder particular provisions of the ARTBill, operate asintended.
234. Some examples are:
· Under the ARTBill, if a decision-maker is required togive the Tribunal a statement or copy of a document underparticular provisions of that Bill, then the decision-makeris also required to give a copy of the statement or document toeach other party to the proceeding. The deeming rules ensure thatif a decision-maker is instead subject to requirements togive statements or documents under section165-25 of theACNCAct, then the decision-maker is still also requiredto give copies to other parties to the proceeding.
· Under the ARTBill, if a decision-maker is required togive the Tribunal a statement or copy of a document underparticular provisions of the ARTBill, the Tribunal hasflexibility to adjust the requirements, such as by changing theperiod for compliance, adjusting the number of copies required, orexempting the decision-maker from the requirements. The deemingrules ensure that if a decision-maker is instead subject torequirements to give statements or documents undersection165-25 of the ACNCAct, then the Tribunal stillhas the same flexibility to adjust the requirements.
· Under the ARTBill, if a decision-maker is required togive the Tribunal or a party to the proceeding a statement or copyof a document under particular provisions of the ARTBill butthe Tribunal is resolving whether to restrict publication ordisclosure of information and certain requirements are satisfied,then the decision-maker may be exempt from the requirements.The deeming rules ensure that if a decision-maker is insteadsubject to requirements to give statements or documents undersection165-25 of the ACNCAct, then this potentialexemption from providing documents operates in the same way.
235. The amendments insert a note to subsection 165-25(7) of the ACNCAct , which alsoexplains the effect of the deeming rules insubsection165-25(7).
Repeal of section165-30 Modificationof section38 of the AATAct
236. These amendments repeal section165-30 of the ACNCAct,which ensures that the AAT could obtain additional statements froma person who lodged a statement giving the reasons for a decisionwith the Tribunal. The provision is no longer required as thisoutcome will be achieved by subsection165-25(7) of theACNCAct, as introduced by this Schedule.
237. Subsection165-25(7) of the ACNCAct, as introduced bythis Schedule, ensures that for the purposes of the ARTBill,the requirement to give a statement giving the reasons for thedecision under the ACNCAct is taken to be the requirement togive a statement of reasons for the decision to the Tribunal underparagraph23(a) of the ARTBill.
238. Subsection165-25(7) of the ACNC Act applies more broadly forthe purposes of the ARTBill than section165-30.Section165-30 achieves the same outcome (but only in relationto the operation of section38 of the AATAct (power ofTribunal to obtain additional documents). See also explanation ofdeeming rules in subsection165-25(7) of theACNCAct above.
Repeal of section165-35 Modificationof section43 of the AATAct
239. These amendments repeal section165-35 of the ACNCAct,which clarifies that the AAT could still publish reasons for adecision, where hearings for the proceeding were heldprivately.
240. This provision is no longer necessary, as this clarification isinstead made in the ARTBill (see note to subclause 113(4) ofthe ARTBill).
Section 165-30 Grounds of objectionand burden of proof (former section165-40)
241. The amendments update terminology in section165-40 to ensurethe provision operates in the same way for the Tribunal, andrenumber this provision as section165-30.
242. The provision generally limits the grounds of the application tothose covered in the original objection (unless the Tribunal ordersotherwise). This ensures that the Tribunal has sufficient knowledgeand information to handle the review and that only relevant factsare considered to promote administrative efficiency by limiting thescope of appeals to directly relevant issues .
243. The law in relation to the burden of proof for charity matters hasalso not been altered, which is consistent with the settings fortaxation matters.
Section 165-35 Implementation of ARTdecisions (former section165-45)
244. Generally, the amendments update terminology in section165-45to ensure the provision continues to operate in substantively thesame way for the Tribunal, and renumber this provision assection165-35. The provision ensures that the Commissioner ofthe ACNC is required to implement or otherwise take action to giveeffect to the Tribunal’s decision within 60days of thedecision becoming final.
245. The amendments also make changes to the test for when charitydecisions become final to account for a referral to the guidanceand appeals panel.
Accounting for guidance and appeals panelreferral in test for when charity decisions become final
246. The amendments inserting new section165-35 ensure that acharity decision will not be considered final until the period forapplying for a guidance and appeals panel referral has beenexhausted, including any additional period provided for suchreferral applications by the President. This ensures that if thePresident extends the period for making an application for areferral beyond the standard 28-day period that applies, then thedecision will not be considered final. The President’sdiscretion to extend this period is subject to special provisionsaffecting its operation, as explained for the amendments tosection165-10 of the ACNCActabove.
247. If a decision is referred to the guidance and appeals panel for asecond review by the Tribunal, the decision will also not beconsidered final.
248. Ensuring that the Commissioner of the ACNC is not obliged to takeaction to give effect to a decision until after it becomes finaland having a clear test for when charity decisions become finalsupports administrative efficiency. As further explained above inrelation to subsection165-10(1)of the ACNCAct(about the operation and implementation of a decision that issubject to review), charity decisions have strong linkages withother government decisions and implementing a decision that has notbeen finalised would introduce administrative costs for otherdepartments and agencies who would potentially have to change taxassessments, the issuance of grants or similar decisions onmultiple occasions.
Item 5: Section 165-55
Section 165-55 Reviews may becombined
249. These amendments clarify that an entity can group related decisionstogether when applying to the Tribunal for review and the Tribunalmay deal with those together. The decisions must be directlyrelated and it must be useful from a procedural and efficiencyperspective to consider decisions jointly.
250. This clarification is particularly important in the charity contextgiven the linkages between a decision of the Commissioner of theACNC to register an entity and the fact that ACNC registration willbe a necessary precondition for entities to access other forms ofCommonwealth government support.
251. Having joint actions is intended to promote cost savings andadministrative efficiency for the not-for-profitsector, as well as ensuring that the totality of issues areconsidered by the Tribunal when reviewing and assessing decisionstaken by the Commissioner of the ACNC, and related decisions madein other Commonwealth government agencies and departments.
Items 6 and 7: Section300-5 (definitions of AATAct and AAT extension application )
Terminology changes
252. These itemsmake terminology changes. See explanation ofgeneral terminology changes above.
253. Item 7 also updates a legislative reference, replacing a referenceto subsection29(7) of the AATAct with a reference tothe equivalent provision in the ARTBill,clause19 .
Australian Securities and InvestmentsCommission Act 2001
Items 8, 9, 10 and 11: Section244 (heading),subsection244(1) (definition of decision ),subsection244(2) and paragraph244A(2)(b)
Terminology changes
254. These itemsmake terminology changes. See explanation ofgeneral terminology changes above.
Items 12 and 13: Subsections244A(5) and (6)
Notice of reviewable decision and reviewrights - special rules in the Australian Securities andInvestments Commission Act 2001
255. These itemsupdate a legislative reference and insert a newsubsectionto preserve special provisions for giving notice ofa decision and a person’s review rights under the Australian Securities and Investments Commission Act 2001 .The provisions ensure the workability of such notice requirementsfor these decisions. These items are technical amendments and areneeded to ensure these provisions continue to operate insubstantively the same way in relation to the Tribunal.
256. See below at items19 and 20 for further information relatingto analogous provisions in the CorporationsAct .
Competition and Consumer Act 2010
Items 14 and 15: Paragraph 10.85(1)(b) andsubsection10.85(2)
Notice of review rights and ability torequest statement of reasons
257. These itemsupdate legislative references, replacing thereferences to section28 and subsection28(4) of theAATAct in paragraph10.85(1)(b) andsubsection10.85(2) of the Competition and Consumer Act2010 with references to the equivalent provisions in theARTBill, clause 268 and subclause 269(7) respectively.Section28 of the AATAct, and the equivalent provisionin the ARTBill, clause268, allows a person whoseinterests are affected by a decision to request a statement ofreasons from the decision-maker. Subsection28(4) of theAATAct, and the equivalent provision in the ARTBill,subclause 269(7), provides that a decision-maker may refuse therequest if the person has already been given reasons.Section10.85 of the Competition and Consumer Act 2010 requires that notice of certain decisions under that Act includenotice that a person may make a request for a statement of reasonsunder section28 of the AATAct, unless the exception insubsection28(4) applies.
258. These items are technical amendments and are needed to ensure theseprovisions continue to operate in substantively the same way inrelation to the Tribunal, so that a decision-maker mustnotify relevant persons that they may request a statement ofreasons under the ARTBill unless the person has already beengiven such a statement.
Corporations Act 2001
Item 16: Subsection798G(2)
Enabling certain legislative instruments toprovide for applications to the ART and make changes to standardprovisions
259. This iteminserts new subsection(2), which provides thata legislative instrument made under section798G of theCorporations Act (about market integrity) may:
· provide for applications to be made to the Tribunal for review ofdecisions made under the rules, and
· contain provisions that apply in addition to, instead of orcontrary to the ARTBill.
260. Various legislative instruments made by ASIC undersection798G of the Corporations Act apply instead of orcontrary to provisions of the AATAct . For example,section27 of the AATAct (and its equivalent, clause 17of the ARTBill), provides that a person whose interests areaffected by a reviewable decision may apply to the Tribunal forreview of the decision. Certain ASIC instruments limit who mayapply for review to the Tribunal to entities directly affected by a reviewable decision, such as market participants whoapplied for a decision or in respect of which the decision wasmade.
261. Similarly, such ASIC instruments also limit who thedecision-maker must give notice of a decision and reviewrights to, such that only entities directly affected by areviewable decision should be notified. Section 27A of theAATAct (and its equivalent, clause 266 of the ARTBill)would otherwise require ASIC to take reasonable steps to givenotice of a decision to any person whose interests areaffected by the decision.
262. These instruments contain references to the AAT and AATActand will therefore require consequential amendments . Thisitemensures that ASIC has the ability to include similarrules when remaking or amending such legislative instruments.
Item 17: Subsection1297(1)
Updating legislative references
263. This itemupdates legislative references, replacing referencesto sections 41 and 44A of the AATAct in section1297 ofthe Corporations Act with references to the equivalent provisionsin the ARTBill, clauses 32 and 178 . Section 1297 ofthe Corporations Act provides when a decision of the CompaniesAuditors Disciplinary Board to cancel or suspend a person’sregistration as an auditor comes into effect. This is subject tosections 41 and 44A of the AATAct . Section 41 of the AATAct providest he AAT with the power to make an order staying or otherwiseaffecting the operation of a decision (in this context, the boarddecision) to ensure the effectiveness of the review. Section 44A ofthe AATAct gives the FCA similar power to make an orderstaying or otherwise affecting the operation or implementation of areviewable decision (in this context, the original board decision),to ensure the effectiveness of an appeal. Clauses 32 and 178 of theARTBill respectively retain the effect of these provisionsfor the Tribunal.
264. This item is a technical amendment and is needed to ensure thatsubsection1297(1) of the Corporations Act continues tooperate in substantively the same way in relation to the Tribunal,so that the time when decisions of the Companies AuditorsDisciplinary Board come into effect will continue to be subject toorders of the Tribunal or the FCA.
Item 18: Subsection1299K(1)
Updating legislative references
265. This itemmakes analogous amendments to the amendments made byitem17 discussed above, replacing references to sections 41and 44A of the AATAct in section1299K of theCorporations Act with references to the equivalent provisions inthe ARTBill, clauses 32 and 178. Section 1299K of theCorporations Act provides when a decision of ASIC to cancel orsuspend a company’s registration as an authorised auditcompany comes into effect.
266. This item is a technical amendment and is needed to ensure thatsubsection1299K(1) continues to operate in substantively thesame way in relation to the Tribunal, so that the time when suchdecisions of ASIC come into effect will continue to be subject toorders of the Tribunal or the FCA .
Items 19 and 20: Subsections1317D(5) and (6)
Notice of reviewable decision and reviewrights - special rules in Corporations Act
267. These itemsupdate a legislative reference and insert a newsubsectionto preserve special provisions for giving notice ofa decision and a person’s review rights under theCorporations Act. The provisions ensure the workability of suchnotice requirements for decisions under the Corporations Act. Theseitems are technical amendments and are needed to ensure that theprovisions continue to operate in substantively the same way inrelation to the Tribunal.
268. Section 1317D of the Corporations Act ensures that a decision-makeris not required to give notice to a person or class of personsaffected by a decision if the decision-maker determines that,having regard to the cost of giving the notice and the way in whichthe person or class of persons interests are affected, notice isnot warranted. It is thus envisaged that the decision-maker willgive the requisite notice to persons most directly affectedby a decision, but will not be required to give notice to personswho are only remotely affected, if the cost of giving noticeto those persons does not warrant it.
269. For example, for certain decisions under the Corporations Act,there are a broad range of persons potentially affected, includingthe relevant company and its directors, shareholders and creditors.The difficulty in identifying affected persons is magnified by boththe broad array of decisions that are subject to review and thehigh volume of decisions made each year.
270. To limit any possible detriment to a person who does not receivenotice of a decision and who, as a result, is out of time in makingan application for review of the decision, subsection1317D(5)provides that the absence of notice constitutes specialcirc*mstances for the purposes of subsection29(6) of theAATAct. Subsection29(6) allows the AAT to entertain anapplication for review that is made out of time, if it is of theopinion that there are special circ*mstances that justify it doingso. Item 19 replaces the reference to subsection29(6) of theAATAct with a reference to the equivalent provision in theARTBill, subclause 20(2).
Relocating exception to standard provisionsfrom AATAct to Corporations Act
271. Subsection27A(1) of the AATAct requires a person whomakes a reviewable decision to take reasonable steps to give anyperson whose interests are affected by the decision notice inwriting or otherwise of the making of the decision and the right ofthe person to have the decision reviewed.
272. There is an exception to this general principle in paragraph27A(2)(d) of the AATAct for a decision under the CorporationsAct that is reviewable by the AAT (which is supplemented by thespecial rules in the Corporations Act, described above). TheARTBill does not contain an equivalent exception, as theserules will be included in the Corporations Act. The insertion ofnew subsection(6) by item20 clarifies thatsection1317D of the Corporations Act, rather than clause 266of the ARTBill, applies to the making of a decision to whichsection1317B of the Corporations Act applies.
Items 21, 22 and 23: Section1621 (heading) andsubsections1621(1) and (4)
Ensuring transitional arrangements apply forART
273. These itemsinsert references to the Tribunal alongsideexisting references to the AAT in the heading of section1621and subsections 1621(1) and (4) of the CorporationsAct,extending the operation of these provisions to the Tribunal. Thisensures that transitional arrangements associated with amendmentsmade by the Insolvency Law Reform Act 2016 to theCorporations Act apply to the Tribunal and continue to apply, whereapplicable, for the AAT.
Excise Act 1901
Items 24 and 25: Subsections165A(13) and (14)
Terminology changes
274. These itemsmake terminology changes. See explanation ofgeneral terminology changes above.
Item 26: Subsection165A(15)
Transitional rule to ensure correct perioddisregarded for purposes of Excise Act 1901
275. This iteminserts new subsection(15), which ensures thatwhere unresolved matters are transferred from the AAT to theTribunal, subsection165A(14) of the ExciseAct1901 operates to account for the entire period whenproceedings are on foot. That is, for the purposes ofsubsection165A(14) of the Excise Act 1901 , the periodto be disregarded is the period starting when the application wasmade to the AAT and ending with the final determination by theTribunal (or by a court on appeal from the Tribunal).
276. Subsection165A(14) of the Excise Act 1901 ensures thatany period when relevant amounts are being disputed, either in theTribunal or in the courts, is to be disregarded when calculatingwhether 60 days has passed since a producer has receivednotification that they either overpaid or underpaid a duty owed tothe Commonwealth. Under the Excise Act 1901 , the amount owed(either by the producer or the Commonwealth) becomes payable, andinterest begins accruing, after this 60-day period.
Fringe Benefits Tax Assessment Act1986
Items 27 and 28: Subsection123B(5) andsubsection136(1) (definition of Tribunal )
Repealing provisions no longer necessary
277. These itemsrepeal all provisions relating to the AAT in the Fringe Benefits Tax Assessment Act 1986 .
278. Subsection123B(5) of the Fringe Benefits Tax AssessmentAct 1986 provides transitional rules relating to theintroduction of section123Bof the Fringe Benefits TaxAssessment Act 1986 ( which commenced on 25May 1992 and provided the Commissioner of Taxation with discretionto dispense with substantiation requirements in certaincirc*mstances). The transitional rule is spent and thesubsectionis therefore repealed.
279. As there are no other provisions relating to the AAT in the Fringe Benefits Tax Assessment Act 1986 , the definition of‘Tribunal’ is also repealed.
Income Tax Assessment Act 1936
Item 29: Subsection202F(2)
Updating legislative references
280. This itemupdates a legislative reference, replacing thereference to subsection41(2) of the AATAct insubsection202F(2) of the Income Tax Assessment Act1936 with a reference to the equivalent provision in theARTBill, clause 32. Subsection41(2) of theAATAct, and the equivalent clause32 of theARTBill, provides the Tribunal’s power to stay orotherwise affect the operation or implementation of a decision.
281. Subsection202F(2) of the Income Tax AssessmentAct1936 clarifies that, where an application has beenmade to the Tribunal for review of a decision underparagraph202F(1)(a), the types of orders that can be made bythe Tribunal under subsection41(2) of the AATActinclude an order to issue a tax file number to the applicant.
282. This item is a technical amendment and is needed to ensure thatsubsection202F(2) of the Income Tax Assessment Act1936 continues to operate in substantively the same way inrelation to the Tribunal.
Item 30: Subsection202FA(1)
Notice of review rights and ability torequest statement of reasons
283. This itemupdates a legislative reference, replacing thereference to section28 of the AATAct insubsection202FA(1) of the Income Tax AssessmentAct 1936 with a reference generally to theARTBill. Section28 of the AATAct, and theequivalent provision in the ARTBill, clause268, allowsa person whose interests are affected by a decision to request astatement of reasons from the decision-maker.
284. Subsection202FA(1) of the Income Tax AssessmentAct 1936 requires that notice of certain decisionsunder that Act include notice that a person may make a request fora statement of reasons under section28 of theAATAct.
285. This item is a technical amendment and is needed to ensure thatsubsection202FA(1) of the Income Tax Assessment Act1936 continues to operate in substantively the same way inrelation to the Tribunal, so that a decision-maker must notifyrelevant persons of their ability to apply to the Tribunal forreview of a decision and request a statement of reasons under theARTBill .
Income Tax Assessment Act 1997
Items 31, 34, 35: Subsections 34-33(5), 376-250(4), 378-85(4),and item64 of Part2 (Bulk amendments - Amendments oflisted provisions): Table itemsrelating to subsections34-33(4), 376-250(3) and 378-85(3) of the Income Tax Assessment Act 1997
Notice of review rights and ability torequest statement of reasons
286. These itemsupdate legislative references, replacing thereferences to section28 of the AATAct in subsections34-33(5), 376-250(4) and 378-85(4) of the Income TaxAssessment Act 1997 with references to the equivalent provisionin the ARTBill, clause 268. Section 28 of the AATAct,and the equivalent provision in the ARTBill, clause 268,allows a person whose interests are affected by a decision torequest a statement of reasons from the decision-maker. Subsections34-33(5), 376-250(4) and 378-85(4) of the Income TaxAssessment Act 1997 require that notice of certain decisionsunder that Act include notice that a person may make a request fora statement of reasons under section28 of theAATAct.
287. These items are technical amendments and are needed to ensure thatsubsections 34-33(5), 376-250(4) and 378-85(4) of the Income Tax Assessment Act 1997 continue to operate insubstantively the same way in relation to the Tribunal, so thatdecision-maker must notify relevant persons that they may request astatement of reasons under the ARTBill .
Item 32: Paragraph355-710(3)(b)
Terminology change
288. This itemmakes a terminology change. See explanation ofgeneral terminology changes above.
Item 33: Subsection355-710(4)
Ensuring assessments can be amended toreflect historic AAT decisions
289. This iteminserts new subsection(4), which provides thatparagraph 355-710(3)(b) applies as if a reference to a decisionunder the ARTBill to vary or set aside certain decisionsincludes a reference to a decision under the AATAct. Thismeans that the Commissioner of Taxation may amend an assessment atany time, where the assessment is affected by a decision of theAAT.
290. This amendment ensures subsection355-710(3) of the IncomeTax Assessment Act1997 continues to apply for AATdecisions made before the transition to the Tribunal. Otheramendments in this Scheduleensure that the Commissioner isable to amend assessments that are affected by a decision of theTribunal.
Items 34 and 35: Subsections376-250(4) and378-85(4)
291. See explanation of these itemsabove.
Items 36 and 37: Subsection995-1(1) (definition of AAT )
Updating definition
292. These itemsamend subsection995-1(1) of the IncomeTax Assessment Act 1997 to replace the definition of AAT with adefinition of ART.
National Consumer Credit ProtectionAct 2009
Items 38 and 39: Subsections 327(1) and (1A)
Terminology changes
293. These itemsmake terminology changes. See explanation ofgeneral terminology changes above.
Item 40: Subsection327(2)
Repealing provisions no longer necessary
294. This itemrepeals subsection327(2) of the NationalConsumer Credit Protection Act2009 , as the provisionduplicates the effect of an exception under the ARTBill andis unnecessary.
295. Subsection327(2) provides that section27A of theAATAct, which requires a decision-maker to take reasonablesteps to give persons whose interest are affected by a decisionnotice of the decision and their right to have the decisionreviewed, does not apply. Under paragraph 266(6)(a) of theARTBill, a decision-maker is not required to give notice ifnotice is required under another Act or instrument.Subsection328(2) of the National Consumer CreditProtection Act 2009 provides for notice of a reviewabledecision and review rights, which enlivens this exception.
Payment Times Reporting Act 2020
Item 41: Subsection53(3) (note)
Updating legislative references
296. This itemupdates a legislative reference, replacing thereference to section27A of the AATAct in the note tosubsection53(3) of the Payment Times ReportingAct2020 with a reference to the equivalent provision inthe ARTBill, clause266. Section27A requires adecision-maker to take reasonable steps to give any person whoseinterests are affected by the decision notice of the decision andthe right of the person to have the decision reviewed.Clause266 of the ARTBill prescribes the same.
297. This item is a technical amendment and is needed to ensure the notein subsection 53(3) remains accurate.
Petroleum Excise (Prices) Act1987
Item 42: Subsections 12(7) and (8)
Period for making applications for deemeddecisions
298. This itemamends subsection12(7) of the PetroleumExcise (Prices) Act1987 to provide a time period formaking an application for review for a decision that is taken to bemade because a decision-maker has not made an active decisionwithin a specified time period (a ‘deemed decision’).The subsectionspecifies that the time period for making anapplication to the Tribunal for review of a deemed decision is28days beginning on the day on which the decision is taken tobe confirmed. The amendment ensures that subsection12(7)continues to operate in substantively the same way for theTribunal.
299. This itemalso inserts new subsection(8), which providesthat the timeframe in subsection(7) applies regardless ofclause 18 of the ARTBill. Clause 18 of the ARTBillprovides that the general timeframe for making an application forreview under the ARTBill will be prescribed by rules.
RetirementSavings Accounts Act 1997
Item 43: Subsections189(8), (9) and (10)
Subsection189(8): Period for makingapplications for deemed decisions
300. This itemamends subsection189(8) of the RetirementSavings Accounts Act 1997 to provide a time period for makingan application for review for a decision that is taken to be madebecause a decision-maker has not made an active decision within aspecified time period (a ‘deemed decision’). Thesubsectionspecifies that the time period for making anapplication to the Tribunal for review of a deemed decision is28days beginning on the day on which the decision is taken tobe confirmed.
301. The subsectionalso stipulates that the timeframes appliesregardless of clause 18 of the ARTBill. Clause 18 of theARTBill provides that the general timeframe for making anapplication for review under the ARTBill will be prescribedby rules.
302. The amendment ensures that subsection189(8) continues tooperate in substantively the same way for the Tribunal.
303. This itemalso inserts a note which provides that under clause19 of the ARTBill a person may apply to the Tribunal toextend this timeframe.
Subsection189(9): Operation ofdecision despite request for internal review
304. This itemupdates a legislative reference, replacing areference to section41 of the AATAct insubsection189(9) of the RetirementSavings Accounts Act 1997 with a reference to theequivalent provision in the ARTBill, clause 32. Section 41 ofthe AATAct, and the equivalent clause32 of theARTBill, provides the Tribunal’s power to stay orotherwise affect the operation or implementation of a decision.Subsection189(9) provides that a request for internal reviewis taken to be an application to the Tribunal for review of thedecision for the purposes section41 of the AATAct.
305. This ensures that a request for internal review does not affect theoperation of the decision or prevent the taking of action toimplement the decision. It also ensures that at an early stage (atthe stage where they have initiated internal review of thedecision), a person can apply to the Tribunal for an order stayingor otherwise affecting the operation or implementation of thedecision.
306. This item is a technical amendment and is needed to ensure thatsubsection189(9) of the Retirement Savings Accounts Act1997 operates in substantively the same way in relation to theTribunal.
Subsection189(10): Clarifying thatonly the Tribunal may make such orders
307. This itemalso inserts new subsection(10) to clarifythat only the Tribunal (as opposed to a decision-maker) can make anorder under subclause 32(2) of the ARTBill. This brings theprovision into line with other analogous legislation in theTreasury portfolio which contain such a clarification, such assection67 of the Insurance Acquisitions and Takeovers Act1991 .
Small Superannuation Accounts Act1995
Item 44: Subsection58(3A)
Transitional rule to ensure certain requestshave no effect if made during particular period
308. This itemensures that subsection58(3) of the SmallSuperannuation Accounts Act1995 applies to circ*mstanceswhen an application to the AAT has not been finalised. Applicationsmade to the AAT which have not been finalised before thecommencement of the Tribunal will be transferred to theTribunal.
309. The intent is that an individual’s request, as referred tounder section58 of the Small Superannuation Accounts Act1995, should have no effect during the period when a proceedingfor review in the Tribunal has not been finalised.
Item 45: Section84
Subsection84(1): Period for makingapplications for deemed decisions
311. This amendment is made despite clause 18 of the ARTBill,which provides that the general timeframe for making an applicationfor review under the ARTBill will be prescribed by rules. Theamendment ensures that subsection84(1) continues to operatein substantively the same way for the Tribunal.
312. This itemalso inserts a note that a person may apply to theTribunal under clause19 of the ARTBill to extend thetime period specified by this item.
Subsections 84(2) and (3): Operation ofdecision despite request for internal review and clarifying thatonly the Tribunal may make certain orders
313. This itemmakes analogous amendments to subsections84(2)and (3) of the Small Superannuation Accounts Act 1995 tothose made to subsections189(9) and(10) of the Retirement Savings Accounts Act1997 byitem43 . See above for explanation of thoseamendments.
Superannuation Industry (Supervision)Act 1993
Item 46: Subsections344(9), (10) and (11)
Subsection344(9): Period for makingapplications for deemed decisions
314. This itemmakes analogous amendments to subsection344(9)of the Superannuation Industry (Supervision) Act1993 to those made to subsection84(1) of the SmallSuperannuation Accounts Act 1995 by item45. See above forexplanation of those amendments.
Subsections 344(10) and (11): Operation ofdecision despite request for internal review and clarifying thatonly the Tribunal may make certain orders
315. This itemmakes analogous amendments tosubsection344(10) of the Superannuation Industry(Supervision) Act 1993 to those made to subsections189(9)and (10) of the Retirement Savings Accounts Act1997 byitem43. See above for explanation of those amendments.
Superannuation (Self ManagedSuperannuation Funds) Taxation Act 1987
Item 47: Subsections16(7), (8), (9) and (10)
Subsection16(7): Period for makingapplications for deemed decisions
316. This itemmakes analogous amendments to subsection16(7)of the Superannuation (Self Managed Superannuation Funds)Taxation Act1987 to those made to subsection84(1)of the Small Superannuation Accounts Act1995 byitem45. See above for explanation of those amendments.
Subsections 16(8) and (9): Operation ofdecision despite request for internal review and clarifying thatonly the Tribunal may make certain orders
317. This itemmakes analogous amendments to subsection16(8)of the Superannuation (Self Managed Superannuation Funds)Taxation Act1987 to those made to subsections189(9)and (10) of the Retirement Savings Accounts Act1997 byitem43. See above for explanation of those amendments.
Subsection16(10): Harmonisation of taxhearing rules
318. This iteminserts subsection16(10) of the Superannuation (Self Managed Superannuation Funds) TaxationAct1987 which stipulates that a hearing of a proceedingin relation to a reviewable decision under that Act must be held inprivate if the applicant requests it. This differs from existingsubsection16(9) of the Superannuation (Self ManagedSuperannuation Funds) Taxation Act1987 which makeshearings of such proceedings private in all circ*mstances.
319. This amendment provides consistency with the rules for privatehearings that apply for other tax matters, as set out insection14ZZE of the TAA(which will be retained by amendmentsset out in this Schedule). This maintains the principle ofconfidentiality in taxation hearings.
320. Existing subsection16(9) of the Superannuation (SelfManaged Superannuation Funds) Taxation Act 1987 also providesthe Tribunal with powers to give directions about who may bepresent at a private hearing and directions about non-publicationand non-disclosure in such circ*mstances. These powers are retainedunder various provisions in the ARTBill (which are equivalentto section35 of the AATAct) .
Taxation Administration Act 1953
Items 48 and 49: Section14ZQ (definitions of AAT,AATAct and AAT extension application)
Terminology changes
321. These itemsmake terminology changes. See explanation ofgeneral terminology changes above.
322. Item 48 also updates a legislative reference, replacing a referenceto subsection29(7) of the AATAct with a reference tothe equivalent provision in the ARTBill,clause19 .
Item 50: Sections14ZZA to 14ZZM
Special provisions affecting operation ofstandard ARTBill provisions for tax context
323. This itemincludes amendments that retain special provisionsthat are fundamental to the operation of Tribunal review fortaxation matters, including provisions that disapply - orapply instead of - provisions of the ARTBill. Theseprovisions ensure the workability of this framework, protect taxrevenue collection and uphold longstanding core tax principles andpractices.
324. Some amendments remove special procedures for tax matters. In thesecases, the standard provisions in the ARTBill will apply.
325. The majority of the special provisions for tax are analogous tothose in the ACNCAct for charity matters (as amended by thisSchedule). These special rules are outlined above in the outlinefor this Schedule.
326. The amendments also remove the general exemption from the standardframework for a decision-maker to give reasons for a decision onrequest, which currently applies for taxation matters. This isconsistent with the current administrative practice of theAustralian Taxation Office, where reasons are generally alreadygiven for decisions in accordance with best practice foradministrative decision-making.
328. Item50 achieves this by repealing sections14ZZA to14ZZM of the TAA and substituting new provisions, as explained indetail below.
Section 14ZZA: ART Act applies subject tothis Division
329. Generally, this provision has been amended to reflect updatedterminology and modern drafting practices. This ensures that theprovision operates in substantively the same way in relation to theTribunal. The provision provides that the ARTBill applies forcertain decisions and applications, subject to Division4 ofPartIVC of the TAA (which contains key provisions relating tothe procedure on review that disapply, or apply instead of,ARTBill provisions).
Ensuring majority of special provisions fortax apply where a Tribunal decision is referred to the guidance andappeals panel
330. In addition, the amendments clarify that generally, the relevantprovisions in the TAA apply for proceedings of the guidance andappeals panel in the same way as they do for other proceedings ofthe Tribunal.
Special rules for tax matters that applydifferently where a Tribunal decision is referred to the guidanceand appeals panel
331. However, some special procedures for applications for review of taxdecisions do not apply to guidance and appeals panelproceedings.
332. Specifically, the following provisions do not apply:
· section14ZZC of the TAA (when and how to apply to the ART),as amended by this Schedule
· subsections 14ZZF(1) and (2) of the TAA (giving documents to theART), as amended by this Schedule
· subsections 14ZZB(1) to (4) of the TAA (special rules forreviewable objection decisions or extension of time refusaldecisions), as amended or inserted by this Schedule.
333. The provisions in section14ZZC of the TAA which relate towhen and how to apply to the Tribunal for review of a decision arenot needed for Tribunal decisions referred to the guidance andappeals panel. A Tribunal decision is referred to the guidance andappeals panel through the President making a referral afterapplication by a party to the proceeding (clauses123 and 128of the ARTBill). Clauses124 and 125 of theARTBill, which provide special general rules about when andhow to apply for referral of a Tribunal decision to the guidanceand appeals panel, will apply to these proceedings.
334. The provisions in subsections 14ZZF(1) and (2) of the TAA whichrelate to initial lodgement of documents with the Tribunal are notneeded for Tribunal decisions referred to the guidance and appealspanel, as the Tribunal already has all the documents from theconsideration of the matter when it was initially lodged. This isprovided for by clause131 of the ARTBill, which allowsthe Tribunal to have regard to documents lodged in the earlierproceeding for a proceeding of the guidance and appeals panel.
335. Subsection14ZZB(1) of the TAA relates to requesting reasonsfor a reviewable decision from a decision-maker. This provision isnot relevant for Tribunal decisions referred to the guidance andappeals panel and therefore does not apply.
336. Subsection14ZZB(2) of the TAA relates to the special rulesfor who can apply and when to apply to the Tribunal for a review ofa tax decision. Clauses123 and125 of the ARTBill,which provide general rules for who can apply and when to apply tothe President to refer a Tribunal decision to the guidance andappeals panel, will apply to these proceedings.
337. The provisions in subsections 14ZZB(3) and (4) of the TAA relate tothe period for applying to refer a Tribunal decision to theguidance and appeals panel. These provisions are not needed formatters already referred to the guidance and appeals panel.
Section 14ZZB: Special rules for reviewableobjection decisions or extension of time refusal decisions
Subsection14ZZB(1): Requesting reasonsfor decision
338. Existing section14ZZB of the TAA disapplies section28of the AATAct in relation to a reviewable objection decision.Section 28 of the AATAct provides a framework for a person torequest a statement of reasons for a decision from adecision-maker.
339. Clauses268, 269, 270 and 271 of the ARTBill provide abroadly equivalent framework to section28 of theAATAct, that allows a person affected by a reviewabledecision to request reasons for a decision from a decision-maker.Generally, the decision-maker has 28 days from receiving thisrequest to provide the reasons, and is required to explain anyrefusal to give reasons. Under the ARTBill, the person canapply to the Tribunal to challenge a decision to refuse to givereasons or to challenge the adequacy of reasons.
340. The amendments in this Scheduleremove the general exemptionfrom this standard framework for taxation matters. This means thatgenerally, the Commissioner of Taxation will be required under thelegislation to give reasons for decisions to a person on request,as per the standard framework under the ARTBill. This isconsistent with the current administrative practice of theAustralian Taxation Office, where reasons are generally alreadygiven for decisions.
341. The amendments still provide an exemption from the standardframework for certain taxation decisions. The standard provisionsunder the ARTBill are disapplied for decisions which aredeemed to have been made by operation of the law (that is decisionstaken to have been made under sections 14ZYA and 14ZYB of the TAA).In these circ*mstances, where the objection is deemed to have beendisallowed by the operation of the law, there are no reasons thatcould be provided.
Subsection14ZZB(2): Who can apply forreview
342. Clause 17 of the ARTBill provides that anyone whose interestsare affected by a decision may apply to the Tribunal for review.Subsection14ZZB(2) disapplies this for reviewable objectiondecisions and extension of time decisions. Disapplying thisprovision ensures that only the entity who received the decisioncan initiate Tribunal review, which is necessary for theworkability of the framework in the tax context.
343. It is a principle of our tax system that disputes by personsagainst tax decisions are matters solely between the person and thedecision-maker.
Subsection14ZZB(2): When to apply forreview
344. Clause 18 of the ARTBill provides that the rules may providethe time limit for an application to the Tribunal, but that thiscannot be less than 28 days after the day the decision is made.Subsection14ZZB(2) disapplies this for reviewable objectiondecisions and extension of time decisions. This provides clarity onthe interaction between amended section14ZZC of the TAA(explained further below) and the general rule for when to applyfor review provided for under the ARTBill .
Subsections 14ZZB(3) and (4): Specialprovisions affecting operation of provisions in ARTBill aboutwhen to apply to refer Tribunal decision to the guidance andappeals panel, to support certainty for the finality of taxationdecisions
345. This amendment adjusts the operation of clause 125 of theARTBill which allows the President to, at any point in time,extend the period for applying for a referral to the guidance andappeals panel beyond the standard 28-day period (from the date theTribunal provides a statement of reasons for the decision) thatotherwise applies. Instead, this amendment provides the Presidentmay only extend the period for making such an application withinthat 28-day period. Further, if the President allows a longerperiod than the standard 28 days, then the President must notifythe Commissioner of Taxation as soon as practicable after providingthat extension of time.
346. Clause 126 of the ARTBill requires the President to givenotice of their decision to refer the Tribunal decision to theguidance and appeals panel or refuse the guidance and appeals panelreferral application to both the applicant and thedecision-maker.
347. Combined with the amendments made by this item, this gives theCommissioner of Taxation certainty about when a decision becomesfinal and when appropriate action to implement a Tribunal decisioncan begin. See explanation of amendments to section14ZZLbelow regarding the test for when taxation decisions become final,the importance of certainty for this test and the Commissioner ofTaxation’s obligations regarding implementing finaldecisions.
Subsections 14ZZB(5) and (6): Operation andimplementation of a decision that is subject to review -rules partially disapplied
348. Clause 32 of the ARTBill provides that a decision that issubject to review by the Tribunal continues to operate, unless theTribunal makes an order staying or otherwise affecting theoperation or implementation of the decision, to ensure theeffectiveness of the review.
349. Generally, this provision does not apply in the tax context.However, the provision still applies for reviewable objectiondecisions relating to a small business taxation assessmentdecision, subject to section 14ZZH. See below for information aboutsection14ZZH.
350. Clause 32 is disapplied for general taxation matters partly becausea more specific rule tailored to the tax context is alreadyprovided under the TAA. Subsection14ZZM(1) of theTAAprovides that the fact that a review is pending does notin the meantime interfere with, or affect, the administrativedecision and any tax, additional tax or other amount may berecovered as if no review were pending.
351. In addition, for general taxation matters (other than thoseinvolving a small business taxation assessment decision),disapplying the standard provisions relating to theTribunal’s ability to make orders staying or otherwiseaffecting the operation or implementation of the original decisionlimit risks to tax revenue and the proper administration of the taxsystem.
Subsection14ZZB(7): Tribunal decisioncontinues to operate unless Tribunal orders otherwise - rulesdisapplied to ensure guidance and appeals panel frameworkconsistent with tax framework
352. The amendments disapply clause 127 of the ARTBill relating tothe status of a Tribunal decision, where there is a subsequentreferral to the guidance and appeals panel for the Tribunal toconsider the decision again.
353. Clause 127 of the ARTBill provides that a referral to theguidance and appeals panel does not affect the operation of thefirst Tribunal decision or prevent the taking of action toimplement that Tribunal decision.
354. This is disapplied for taxation matters because it is contrary tothe intention underpinning section14ZZL of the TAA, whichrequires action to implement a Tribunal decision only once it hasbecome final. Section 14ZZL of the TAA (as amended by thisSchedule) requires the Commissioner of Taxation to implement aTribunal decision within 60 days after the decision becomesfinal.
355. A decision is not considered final until the period for lodging acourt appeal has been exhausted. Section 14ZZL of the TAA (asamended by this Schedule) also ensures that a decision will not beconsidered final until the period for applying for a guidance andappeals panel referral has been exhausted, and any guidance andappeals panel review of the Tribunal has also been finalised. Forfurther information, see explanation of amendments tosection14ZZL below.
356. Clause 127 of the ARTBill provides that the Tribunal may staythe operation or implementation of the first Tribunal decision inorder to secure the effectiveness of a guidance and appeals panelreferral application. This is disapplied for taxation mattersbecause it is unnecessary. In the tax context, the Commissioner ofTaxation is not required to implement the first Tribunal decisionuntil the decision or dispute is finalised (making a stay of thatTribunal decision unnecessary). See section14ZZL of the TAA,as described briefly above and in further detail below.
Subsection14ZZB(8): Operation andimplementation of a decision that is subject to appeal
357. Clause 178 of the ARTBill provides that a decision of theTribunal that has been appealed under the ARTBill to the FCAor the FCFCOA continues to operate. Clause178 also ensuresthe Court may make an order staying or otherwise affecting theoperation or implementation of either the Tribunal decision or theoriginal decision in order to ensure the effectiveness of thehearing.
358. This provision is disapplied in the tax context. The application ofthe standard rule would be inconsistent with the Commissioner ofTaxation being required to give effect to a Tribunal decision onlyafter the decision became final (after any appeals from thedecision were fully determined). See sections 14ZZL and 14ZZQ ofthe TAA for rules requiring the Commissioner to implement Tribunaldecisions or court orders within 60 days after these decisions ororders become final. These rules protect tax revenue and theintegrity of the tax system.
Section 14ZZC: When and how to apply to theART
When to apply
359. The amendments ensure that despite the general rule for when toapply for review provided for under clause 18 of the ARTBill,an application for review of a decision must be made within 60 daysafter the person has been served with notice of the decision. Thismaintains the position under the existing law, which ensuresconsistency with the time period for lodging objections with theCommissioner of Taxation, consistency with the timeframe for filingan appeal to the FCA, as well as with the timeframes that apply forcharity matters. These timeframes are already harmonised acrossover 15 tax and superannuation Acts.
How to apply
360. The amendments also ensure that despite subclause 34(1) of theARTBill, which relates to the manner in which applicationsare to be made, consistent with the existing law, applications inthe tax context must be in writing and set out a statement ofreasons for the application.
361. For tax matters, it is always appropriate for applications to bemade in writing and set out a statement of reasons for theapplication, including the grounds on which review is sought. Undersection14ZZK of the TAA, the grounds of review are limited tothe grounds stated in the original objection by the applicant. Thesubject matter of such decisions concern the affairs of theapplicant, who is best placed to know the details of their ownaffairs.
362. Although a failure to include a statement of reasons does notaffect the validity of the application, ensuring an application forreview includes these minimum content requirements ensures theTribunal and the Commissioner of Taxation are put on notice aboutthe scope of the review. This includes being put on notice aboutinformation the Commissioner of Taxation needs in order to meettheir initial lodgement obligations, as set out insection14ZZF of the TAA (as amended by this Schedule).
363. It is expected that where an application does not include astatement of reasons for the application in the first instance,such a statement will need to be provided before the Tribunalnotifies the decision-maker of the application for review of thedecision for the purposes of subsection14ZZF(2) (as amendedby this Schedule), noting that the Commissioner of Taxation has 28days to lodge initial documents with the Tribunal starting from theday the Tribunal notifies them of the application.
364. Clause 34 of the ARTBill provides that the manner of applyingand the required content of the application will be set out inpractice directions. An application for review in the taxationcontext must still comply with any such requirements set out inpractice directions, to the extent that the requirements areconsistent with the application being in writing and setting out astatement of reasons for the application.
Prescribed fees
365. Consistent with the current law for taxation matters, a validapplication does not require the application to be accompanied bythe prescribed application fee. Under the ARTBill, a fee maybe payable in relation to the application and an application may bedismissed if the fee is not paid within a particular time.
Section 14ZZD:Parties to proceedings for review
366. The amendments ensure that despite paragraph 22(1)(c) of theARTBill,the Tribunal may only join another party to theproceedings if the original applicant gives their consent.
367. This retains the position under the existing law which maintainsthe principle of confidentiality in taxation hearings.
Section 14ZZE: Hearings before ART to beheld in private if applicant so requests
368. Clause 69 of the ARTBill provides that generally hearingsshould be held publicly. These amendments ensure that despite thisprovision, for taxation matters, a hearing must be in private ifthe applicant requests it.
369. This retains the position under the existing law which maintainsthe principle of confidentiality in taxation hearings.
Section 14ZZF:Giving documents to the ART
Subsections 14ZZF(1), (2), (3) and (4):Initial obligation to lodge documents and ongoing obligation tolodge additional documents
370. The amendments replace clause 23 of the ARTBill, which isabout the decision-maker giving reasons and documents to theTribunal, with rules tailored for the tax context.
371. This includes providing a list of certain documents that arerequired for initial lodgement, which utilises language from theexisting law which is well understood and consistent with languageused in the TAA.
372. Clause 23 of the ARTBill requires a decision-maker to givedocuments that are in their possession and control that areconsidered to be relevant to the review. In contrast, theseamendments ensure that in the tax context , thedecision-maker is required to give documents that are intheir possession and control that are considered to be necessary to the review of the relevant decision, and togive a list of such documents. This facilitates the efficientconduct of proceedings, avoiding large volumes of documents beinglodged with the Tribunal that may never be referred to or areotherwise unnecessary.
373. This itemalso replaces clause 25 of the ARTBill, whichprovides an ongoing obligation on a decision-maker to giveadditional documents to the Tribunal that are relevant tothe review that come into their possession or control at any timeduring the proceeding. Instead, decision-makers must give theTribunal additional documents that are necessary to thereview that come into their possession or control. This ensures therequirements for ongoing lodgement aligns with the specialprovisions for initial lodgement of documents with theTribunal.
374. Clause 26 of the ARTBill provides the Tribunal with the powerto obtain any additional documents it requires in particular cases.Subsections 14ZZF(5) and (6) of the TAA facilitates theTribunal’s exercise of such powers (see below).
Subsections 14ZZF(5) and (6): Requestinglist of relevant documents
375. The amendments insert subsection14ZZF(5) of the TAA to ensurethat consistent with the existing law, the Tribunal can require adecision-maker to lodge with the Tribunal a copy of a list ofdocuments in their possession or control considered to be relevantto the review. The list of relevant documents would enable theTribunal to consider whether further documents should be lodged fortax matters.
376. Subsection14ZZF(6) of the TAA clarifies that theTribunal’s power to request the list of relevant documents isin addition to the Tribunal’s powers under clause 26 of theARTBill to require additional documents be lodged.
Requesting documents orally in aconference
377. Section 14ZZF of the TAA provides the AAT with the power to requestdocuments orally at a conference, as subsection37(2) of theAATAct only allows the AAT to request documents inwriting.
Subsection14ZZF(7): Deeming rules
379. The amendments insert subsection14ZZF(7) of the TAA whichprovides that for the purposes of the ARTBill , therequirement to give documents in section14ZZF is taken to bethe requirement to give documents under particular provisions inthe ARTBill . Similarly , documents given undersection14ZZF are taken to be given under particularprovisions in the ARTBill .
380. The deeming rules clarify that satisfying the requirements aboutgiving documents to the Tribunal in section14ZZF of the TAAwill satisfy the requirements provided for by theARTBill .
381. The deeming rules also ensure that various provisions under theARTBill, which will apply if a decision-maker is required togive documents under particular provisions of the ARTBill orif adecision-maker has given documents under particularprovisions of the ARTBill, operate as intended.
382. See explanation above relating to amendments to section165-25of the ACNCAct for examples of how analogous deeming rulesoperate.
383. The amendments insert a note to subsection14ZZF(7) of theTAA, which also explains the effect of the deeming rules insubsection14ZZF(7).
Repeal of section14ZZG: Modificationof section38 of the AATAct
385. Subsection14ZZF(7) of the TAA, as introduced by thisSchedule, ensures that for the purposes of theARTBill , the requirement to give a statement givingthe reasons for the decision under the TAAis taken to be therequirement to give a statement of reasons for the decision to theTribunal under paragraph23(a) of the ARTBill.
386. Subsection14ZZF(7) of the TAA applies more broadly for thepurposes of the ARTBill than section14ZZG. Section14ZZG achieves the same outcome (but only in relation to theoperation of section38 of the AATAct (power of Tribunalto obtain additional documents)). See also explanation of deemingrules in subsection14ZZF(7) of the TAA above.
Section 14ZZH:Limitation on orders staying or affecting reviewable objectiondecisions relating to small business taxation assessmentdecisions
387. Section 14ZZH is amended to ensure that the Tribunal’sstandard powers to make orders staying, or otherwise affecting theimplementation of a decision, are subject to certain limitationsfor small business taxation assessment decisions. This amendmentensures that section14ZZH continues to operate insubstantively the same way for the Tribunal. However, thelimitations are no longer restricted to proceedings in the SmallBusiness Taxation Divisionof the AAT, reflecting that theTribunal will not conduct itself using the same structure.
388. The provision continues to allow the Tribunal, in a proceeding forreview of aprescribed reviewable objection decision, to makeorders staying or otherwise affecting the implementation of adecision for small business taxation assessment decisions, which isnot otherwise available for general taxation matters. However, thisis subject to limitations designed to limit risks to tax revenue and the proper administration ofthe tax system.
Section 14ZZJ: Publishing ART decisions
389. Consistent with the existing law, section14ZZJ of the TAAprovides that where a hearing is private, no FCA appeal has beenlodged and the Tribunal publishes reasons for the decision, theTribunal must ensure that as far as practicable, that its reasonsfor the decision are framed so as not to be likely to enable theidentification of the person who made the relevant application.
390. This balances the principle of taxpayer confidentiality with thecontinued availability of precedents for use by taxpayers and theirprofessional advisors.
391. Existing section14ZZJ clarifies that the AAT could stillpublish reasons for a decision, where hearings for the proceedingwere held privately. This provision is no longer necessary, as thisclarification is instead made in the ARTBill (see note tosubclause 113(4) of the ARTBill) .
Section 14ZZK:Grounds of objection and burden of proof
392. The amendments update terminology in section14ZZK to ensurethe provision continues to operate in the same way for theTribunal.
393. The provision generally limits the grounds of the application tothose covered in the original objection (unless the Tribunal ordersotherwise). This ensures that the Tribunal has sufficient knowledgeand information to handle the review and that only relevant factsare considered to promote administrative efficiency by limiting thescope of appeals to directly relevant issues .
394. The law in relation to the burden of proof for tax matters has notbeen altered, which has been a longstanding core feature ofAustralia’s tax system.
Section 14ZZL: Implementation of ARTdecisions
395. Generally, the amendments update terminology in section14ZZLto ensure the provision continues to operate in substantively thesame way for the Tribunal. The provision ensures that theCommissioner of Taxation is required to implement or otherwise takeaction to give effect to the Tribunal’s decision within 60days of the decision becoming final.
396. The amendments also make changes to the test for when taxationdecisions become final to account for a referral to the guidanceand appeals panel.
Accounting for guidance and appeals panelreferral in test for when tax decisions become final
397. The amendments to section14ZZL ensure that a taxationdecision will not be considered final until the period for applyingfor a guidance and appeals panel referral has been exhausted,including any additional period provided for such referralapplications by the President. This ensures that if the Presidentextends the period for making an application for a referral beyondthe standard 28-day period that applies, then the decision will notbe considered final. The President’s discretion to extendthis period is subject to special provisions affecting itsoperation, as explained for the amendments to section14ZZB ofthe TAA above.
398. If a decision is referred to the guidance and appeals panel,essentially for a second review by the Tribunal, the decision willalso not be considered final.
399. Ensuring that the Commissioner of Taxation is not obliged to takeaction to give effect to a decision until after it becomes finaland having a clear test for when taxation decisions become finalsupports the proper administration of the tax system.For example,otherwise the Commissioner of Taxation might be required to takesteps to implement a decision that cannot be undone, such as bymaking consequential amendments to another taxpayer’sassessment or issuing director penalty notices.
Section 14ZZM: Pending review not to affectimplementation of taxation decisions
400. This amendment updates a legislative reference, replacing thereference to section41 of the AATAct insubsection14ZZM(2) of the TAA Act with a reference to theequivalent provision in the ARTBill, subclause 32(2). Section41 of the AATAct, and the equivalent clause 32 of theARTBill, provides the Tribunal’s power to stay orotherwise affect the operation or implementation of a decision.Section14ZZM of the TAA provides that a pending review inrelation to a taxation decision does not affect the decision, andsubsection(2) clarifies that this is subject to any ordermade (by the Tribunal) under subclause 32(2) of theARTBill.
401. This amendment is technical in nature, and ensures thatsection14ZZM of the TAA continues to operate in substantivelythe same way in relation to the Tribunal.
402. The amendments also insert a note to explain that an order madeunder subclause32(2) of the ARTBill staying orotherwise affecting the implementation of a decision is subject tothe limitations on such orders relating to small business taxationassessment decisions in section14ZZH of the TAA. See abovefor explanation of section14ZZH of the TAA.
Part2 — Bulk amendments
Items 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64,65, 66, 67, 68, 69, 70, 71, 72, 73, 74 and 75: Various provisionsin Treasury portfolio Acts
403. These itemsinclude tables which make bulk amendments to thefollowing Treasury portfolio Acts:
· A New Tax System (Australian Business Number) Act 1999
· ASIC Supervisory Cost Recovery Levy (Collection) Act2017
· Australian Small Business and Family Enterprise Ombudsman Act2015
· Business Names Registration Act 2011
· Business Names Registration (Transitional and ConsequentialProvisions) Act2011
· Commonwealth Registers Act 2020
· Competition and Consumer Act2010
· Corporations Act 2001
· Crimes (Taxation Offences) Act 1980
· Excise Act 1901
· Financial Regulator Assessment Authority Act 2021
· Financial Sector (Transfer and Restructure) Act 1999
· Income Tax Assessment Act 1936
· Income Tax Assessment Act 1997
· National Consumer Credit Protection Act 2009
· Payment Times Reporting Act 2020
· Petroleum Excise (Prices) Act 1987
· Petroleum Resource Rent Tax Assessment Act 1987
· Retirement Savings Accounts Act 1997
· Small Superannuation Accounts Act 1995
· Superannuation Industry (Supervision) Act 1993
· Superannuation (Self Managed Superannuation Funds) Taxation Act1987
· Tax Agent Services Act 2009
· Taxation Administration Act1953
· Taxation (Interest on Overpayments and Early Payments) Act1983
Terminology changes
404. These itemsamend terminology. See explanation of generalterminology changes above.
Item 74: Amendments to listedprovisions in the Taxation Administration Act 1953
Authorities relevant to whether a matter isreasonably arguable
405. The amendments to paragraph 284-15(3)(c) of Schedule1 to theTAA update the provision to refer to both the AAT and the Tribunal.Section 284-15 of Schedule1 to the TAAincorporatesvarious sources of authorities, which are relevant to determinewhether a matter is reasonably arguable. The amendments ensure thatAAT decisions continue to be a relevant authority for thesepurposes and that decisions of the Tribunal will also berelevant.
Item 75: Amendments to listed provisions in the Taxation(Interest on Overpayments and Early Payments) Act 1983
Decisions to which the Taxation (Intereston Overpayments and Early Payments) Act1983 applies
406. The amendments ensure that decisions of both the AAT and theTribunal are considered to be decisions to which the Taxation(Interest on Overpayments and Early Payments) Act1983 applies. This is achieved by referring to both the AAT and theTribunal in paragraph(b) of the definition of ‘decisionto which this Act applies’ in section3 of the Taxation (Interest on Overpayments and Early Payments)Act1983. This ensures this Act continues to apply asintended, ensuring that if as a result of a decision of either theAAT or the Tribunal a person overpays an amount to theCommissioner, the person may be entitled to interest on theoverpaid amount.
SCHEDULE 2 - HOME AFFAIRS
OUTLINE
407. Schedule 2 of the Consequential Bill contains amendments to the Migration Act1958 in the Home Affairs portfolio. Theamendments harmonise and improve the review process for migrationand protection visa applicants.
408. The schedule repeals Part 7 of the Migration Act to provide formore effective and efficient reviews of migration and protectionvisa decisions. The amendments in the Schedule do so by providing asingle, harmonised process for the review of migration andprotection visa decisions in Part 5 of the Act. The provisionsretain and enhance special features that are fundamental to theoperation of Tribunal review for migration and refugee matters,including provisions that disapply or apply instead of, or inaddition to, provisions of the ART Bill. These provisions recognisethe distinct nature of these applications and their volume andcomplexity. The Schedule includes provisions:
· specifying that the Minister is taken to have elected to be anon-participating party for most Tribunal review proceedings(other than guidance and appeals panel proceedings) for reviewablemigration and protection visa decisions
· setting out how to make an application for Tribunal review, who mayapply and who the other parties to a review can be
· mandating private hearings for reviewable protection decisions atthe Tribunal
· standardising timeframes for applying for review to 28 days fromwhen the person was notified of a decision, except for certainapplications where shorter timeframes are required (people inimmigration detention, character related visa decisions andbridging visa decisions)
· disapplying provisions in the ART Bill that would lead touncertainty or compromise the finality of visa decisions, so that aperson’s visa status is always clear, such as extensions oftime, reinstatement of applications and remittal of decisions priorto the finalisation of a review
· altering the effect of certain provisions in the ART Billconcerning provision of documents and statements of reasons to theTribunal and parties to reflect the potential volume of materialsrelating to these reviews
· providing a simplified system for access to Tribunal files onrequest for both migration and protection decisions, avoiding theneed for lengthy processes under the FOI Act
· adjusting the exhaustive statement of the natural justice hearingrule, so that it applies only in limited, critical areas
· disapplying appeals to the guidance and appeals panel for visarelated decisions, while retaining the ability for the President ofthe Tribunal to refer matters raising systemic issues to theguidance and appeals panel.
409. Some amendments remove special procedures for reviews of migrationand protection matters. In these cases, the standard provisions inthe ART Bill will apply. The amendments would significantlystandardise the availability of Tribunal powers and procedures formigration and protection matters, supporting consistency andcollaboration across the Tribunal. This includes the ability tohold directions hearings, case conferences and to use broaderdismissal powers, directions powers, and summons powers.Administrative and procedural tasks will be able to be delegated toregistrars and some staff.
410. The Schedule also repeals Part 7AA of the Migration Act to abolishthe Immigration Assessment Authority. Relevant applicants will nowhave their matters reviewed in the same way as any other protectionvisa applicant.
411. Amendments are also made to visa related decisions and decisionsmade by the Migration Agents Registration Authority in relation toformer migration agents, separate to the amendments made formigration and protection matters under existing Part 5 and 7 of theMigration Act outlined above. These amendments are mostlyconsequential in nature.
412. The Schedule also makes a range of minor amendments, replacingoutdated references to the AAT and the AATAct with updatedterminology, replacing references to provisions of the AATActwith references to the equivalent provision under the ART Bill andrepealing redundant provisions as required. These amendments ensurethe Tribunal has jurisdiction to review decisions that arereviewable by the AAT and that various provisions will continue tooperate in the same way as the existing law for the Tribunal. Insome cases, provisions are amended to cover both the AAT and theTribunal to ensure these provisions operate as intended or tomanage transitional issues.
413. This includes minor, consequential amendments to the Immigration(Guardianship of Children) Act 1946 and the Maritime Transport andOffshore Facilities Security Act 2003.
414. Amendments to these Acts may be contained in both Part1 (Mainamendments) and Part2 (Bulk amendments) of the Schedule.
Part 1—Main amendments
General terminology changes
415. A range of items in this Schedule make simple terminology changes,such as repealing outdated references to the ‘AdministrativeAppeals Tribunal’, ‘AAT’ and‘Administrative Appeals Tribunal’ Act1975’and replacing with references to the ‘Administrative ReviewTribunal’, ‘ART’ and ‘ AdministrativeReview Tribunal Act2024 ’. These amendments ensurethat the Tribunal has jurisdiction to review decisions that arereviewable by the AAT and that provisions under those laws continueto operate in substantively the same way in the new Tribunal.
Immigration (Guardianship of Children) Act 1946
Items1 and 2: At the end of subsection11A(6),Section11B
Terminology changes and updating legislativereferences; Repealing provisions no longer necessary
416. Item 2repeals section11B, which provides requirementsfor the Tribunal to provide notice of and reasons for its decisionsfor certain decisions under the Act. The provision is not necessaryas clause266 of the ARTBill provides generalrequirements for the Tribunal to provide notice of and reasons forits decision on a review of a decision. The effect of repealingsection11B is that clause266 of the ARTBill willapply.
417. Item 1 is consequential to the repeal of section11B. Itinserts a note referring to clause266 of theARTBill.
Maritime Transport and OffshoreFacilities Security Act 2003
Item 3: Section201 (note)
Terminology changes and updating legislativereferences
418. This item updates legislative references, replacing the referenceto section27A of the AATAct in the note tosection201 of MTOFSA with a reference to the equivalentprovision in the ARTBill, clause266, and removing thereference to the Code of Practice determined under section27Bof the AAT Act. These amendments are technical in nature, andensure that section201 of MTOFSA continues to operate insubstantively the same way in relation to the Tribunal.
419. Consistent with section27A of the AAT Act, underclause266 of the ARTBill, a decision-maker is requiredto notify persons who are affected by the decision of the making ofthe decision and their right to have the decision reviewed.Although the item does not update the note to refer to theequivalent provision to section27B of the AAT Act,clause267 of the ARTBill, this provision also appliesto require a decision-maker to have regard to any prescribed ruleswhen giving such notices. It is expected that any prescribed rulesrelating to the giving of notices under the ARTBill will bebased on the Code of Practice.
Migration Act 1958
Item4: Subsection5(1) (definition of AAT ActMigration decision )
Terminology change
420. This item repeals the definition of AAT Act Migrationdecision , which is replaced by the ART Act migrationdecision inserted by Item5 below.
Item5: Subsection5(1)
Updating definitions
421. This item inserts new definitions into the Migration Act. Thefollowing definitions explain, or point to sections that explain,expressions used in the Migration Act:
· ART - a definition is inserted to explain thatreferences to the ART in the Migration Act mean the AdministrativeReview Tribunal.
· ART Act - a definition is inserted to explainthat references to the ART Act in the Migration Act mean the Administrative Review Tribunal Act 2024 .
· ART Act migration decision - replaces thedefinition of AAT Act migration decision to reference the ART Act.Decisions which are ‘ART Act migration decisions’ aredefined in section 474A. This term is included in the definition of‘migration decisions’, which is used to establish theapplication of judicial review provisions under the Migration Act.See also items 9 and 238 of this Schedule.
· ART member - a definition is inserted toreplace the definition of tribunal member, repealed by item 61. ARTmember means a member of the ART. In the ART Bill, the term‘member’ includes all members of the Tribunal -the President, Deputy Presidents (judicial and non-judicial),senior members and general members. The new term is used throughthroughout the Migration Act in place of tribunal member.
· ART practice directions - this definitionrefers to practice directions that the President can make underclause36 of the ART Bill in relation to the operations,procedures of the Tribunal, and the conduct of reviews.
· ART Principal Registrar - a definition isinserted to replace the definition of Registrar in theMigrationAct, repealed by item122. It refers to theChief Executive Officer and Principal Registrar of the Tribunal.The ‘ART Principal Registrar’ is the agency head of theTribunal and their responsibilities include assisting the Presidentto manage the administrative affairs of the Tribunal.
Item6: Section5(1)
Repealing provisions no longer necessary
422. This item repeals the definitions of excluded fast track reviewapplicant, fast track applicant, fast track decision, fast trackreviewable decision and fast track review applicant. These are nolonger necessary, consequential to the repeal of Part 7AA byitem228.
Item7: Subsection5(1) (definition of finallydetermined )
Repealing provisions no longer necessary
423. This item repeals and substitutes the definition of finallydetermined from the MigrationAct with one to be setout in new section11A of this Act, inserted byitem15.
Item8: Subsection5(1) (definition of ImmigrationAssessment Authority )
Repealing provisions no longer necessary
424. This item repeals the definition of Immigration AssessmentAuthority , which is no longer necessary consequential tothe repeal of Part 7AA by item228.
Item9: Subsection5(1) (paragraph(d) of thedefinition of migration decision )
Updating definitions
425. This item replaces paragraph (d) of the definition of migrationdecision, consequential to the repeal of ‘AAT Act migrationdecision’ by item 4 and the insertion of ART Actmigration decision by item5.
Items 10 and 11: Subsection5(1)
Updating definitions
426. These items repeal the definitions ofPart 5-reviewabledecision , Part7-reviewabledecision and referred applicantfrom subsection5(1),and insert the terms reviewable migration decision and reviewableprotection decision which are provided for in sections338 and338A of the Migration Act, by items 125 to 133.
427. These amendments are related to the repeal of Part 7 andharmonisation of Parts5and7 of the Migration Actwithin Part 5.The term referred applicant relates to the fast track review process at the IAA under Part 7AA,and is no longer necessary consequential to the repeal of Part 7AAby item228.
Item12: Subsection5(1) (definition of Tribunal)
Repealing provisions no longer necessary
428. This item repeals the definition of Tribunal ,consequential to the insertion of ART byitem5.
Item13: Subsections5(1AA), (1AB), (1AC) and(1AD)
Repealing provisions no longer necessary
429. This item repeals these subsections of the Migration Act relatingto the fast track review process at the IAA under Part 7AA, whichare no longer necessary consequential to the repeal of Part 7AA byitem228.
Items 14 and 15: Subsections5(9), (9A), and (9B), Aftersection11
When applications under this Act are finallydetermined
430. These items repeal subsections5(9), (9A) and (9B) and insertsection11A for the definition of ‘ finallydetermined’ . New section11A preserves theintent of the repealed subsections, enhances readability and makesclear when an application under the Migration Act is finallydetermined .
431. Section11A reflects that reviews of reviewable migration andprotection decisions will be governed by both the Migration Act andthe ART Bill. Reviews are ‘by application to the ART underPart 5’. New sections347 and 347A in Part 5 of theMigration Act, inserted by item 136, set out the requirements foran application to the Tribunal for review of a reviewable migrationdecision or a reviewable protection decision. Once the applicationis properly made, the Tribunal conducts review of decisions inaccordance with provisions of the ART Bill, subject to any contraryprovisions in the Migration Act.
432. Subsection11A(1) largely replicates repealedsubsection5(9), with updated references, excluding thosewhich are no longer necessary consequential to the repeal of Part 7and Part 7AA by item228.
433. Subsection11A(1) provides that an application is finally determined in either of the followingcirc*mstances:
· the decision that has been made in respect of the application isnot, or is no longer, subject to any form of review by applicationto the Tribunal, or
· the decision that has been made in respect of the application wassubject to some form of review by application to the Tribunal, butthe period within which such a review could be instituted has endedwithout a review having been instituted as prescribed.
434. The circ*mstances intended to be caught by paragraph 11A(1)(a)include where the Tribunal has no jurisdiction to review a decisionunder section348 because an application to the Tribunal wasnot properly made in accordance with section347.
435. Subsection11A(2) also largely replicates repealedsubsection(9A) with updated references, and providing for thedismissal powers available to the Tribunal. When an application forreview is instituted as prescribed, the relevant application underthe Migration Act is finally determined :
· for Tribunal decisions made under clause105 of the ART Bill(that is, affirming or varying the reviewable decision or settingit aside and making a decision in substitution for the reviewabledecision) - when the decision is taken to be made undersection368
· for Tribunal decisions made under s 368C(3)(b) or 368C(5) of theMigration Act to confirm a decision to dismiss an application wherereinstatement is available (that is, dismissals made under clauses99, 100 and 101 of the ART Bill) - when the decision is takento be made under section368
· for Tribunal decisions to dismiss an application for review wherereinstatement is not available - when the decision is takento be made under section368B.
436. Applications for reinstatement may be made for dismissals underclauses 99, 100 and101 of the ART Bill (see section368Cinserted by item 171). This means that paragraph11A(2)(b)would apply to other types of dismissals under the ART Bill,including where the applicant withdraws the application(clause95).
437. Subsection(3) largely replicates existingsubsection5(9B) to provide that an application under Part 5of the Migration Act is not finally determined if theTribunal sets aside a decision and remits the matter forconsideration in accordance with orders or recommendations of theTribunal as permitted by the Migration Regulations undersubsection349(2) of the Migration Act.
438. To remove administrative uncertainty and put the original policyintention beyond doubt, new Division 5 of Part 5 of the MigrationAct (containing sections368 to 369) inserted by item 171 ofthis Schedule, sets out the obligations on the Tribunal in relationto notification of review decisions. Provided the day and time thedecision was made has been recorded on the written statement oridentified in a written record of an oral decision where relevant,the ART’s decision is taken to have been made at that time,and the application under the Migration Act is finallydetermined .
439. The policy intention for ensuring that applications under this Actare finally determined is to ensure certainty on whenthe ART becomes functus officio, and thereby has no power to varyor revoke a decision. Once a decision is made, it cannot bere-opened or varied. Setting out when an application is considered finally determined for the purpose of the MigrationAct provides certainty for a review applicant, visa applicant orthe former visa holder and ensures clarity in relation to aperson’s visa status.
Items 16 and 17: Paragraph 57(1)(a), Subsection57(1)(note)
Repealing provisions no longer necessary
440. These items are consequential to the repeal of the term‘excluded fast track review applicant’ by item6.Item17 repeals the note to subsection57(1).Item16 repeals and replaces the definition in paragraph57(1)(a) to reflect that the referenced subparagraph 57(1)(a)(ii)is no longer applicable, and the note at the end ofsubsection57(1) is repealed.
Item18: Subsection65(1) (note 3)
Repealing note no longer necessary
441. This item repeals note 3 at the end of subsection65(1),consequential to the repeal of Part 7AA by item228.
Item19: Paragraph 66(2)(d)
Updating legislative references
442. This item is an update consequential to the repeal of Part 7 byitem228 and reflects that review of a decision is sought byapplication under Part 5. New sections347 and 347A in Part 5of the Migration Act, inserted by item 136, set out therequirements for an application to the Tribunal for review of areviewable migration decision or a reviewable protectiondecision.
Items 20 and 21: Subparagraph 66(2)(d)(iv), Paragraphs 66(2) (e) and (f)
Repealing provisions no longer necessary
443. Item21 repeals paragraphs 66(2)(e) and (f), which refer tofast track review and are no longer required consequential to therepeal of Part 7AA by item228. Item20 changes thepunctuation in the sectionto reflect that subparagraph66(2)(d)(iv) is now the final item in the list.
Item22: Paragraph 66(3)(b)
Repealing provisions no longer necessary
444. This item omits the reference to Part 7 in paragraph 66(3)(b),consequential to the repeal of Part 7 by item228.
Item23: At the end of section66 (after thenote)
Notification of decision
445. This item inserts new subsections(6) and (7) intosection66 of the Migration Act, which deals with notificationof decisions to grant, or to refuse to grant, a visa.
446. New subsection66(6) provides that clause267 of the ARTBill does not apply to notifications of decisions to grant or torefuse to grant a visa made under this section.
447. Clause267 of the ART Bill requires that, in giving notice ofa decision, the decision-maker must have regard to mattersprescribed by rules. The rules will be used to set out bestpractice considerations for giving notice, including the content ofthose notices. It is anticipated that these rules will be based onthe Code of Practice for Notification of Reviewable Decisions andRights of Review made under subsection 27B(1) of the AAT Act.
448. Disapplying clause267 of the ART Bill allows the Departmentof Home Affairs to develop notices that are appropriate andtailored to the migration and protection decisions made undersection65 of the Migration Act. This allows theadministration of the complex visa framework the appropriate degreeof transparency, certainty and consistency, for a cohort whichincludes persons in immigration detention. Notification that iscompliant with the procedural requirements governs the commencementperiods for making an application to the Tribunal. The intent is toensure that the legislative arrangements in relation to rights ofreview of decisions operate fairly and efficiently.
449. New subsection66(7) provides that clause268 of the ARTBill does not apply to decisions to refuse to grant a visa.Clause268 of the ART Bill provides that persons affected by areviewable decision may request reasons for that decision from thedecision-maker. Clause268 of the ART Bill is disappliedbecause section 66 of the Migration Act provides (among otherthings) when a notification of a decision to refuse an applicationfor a visa must include written reasons (see, relevantly, paragraph66(2)(c) and subsection 66(3) of the Migration Act).
Item24: Paragraph91G(2)(a)
Terminology changes
450. This item replaces the reference to ‘Administrative AppealsTribunal’ with ‘ART’. Seeexplanation of general terminology changes above.
Items 25 and 26: Section99 and Section103
Terminology changes
451. These items replace references to ‘Tribunal’ and‘Immigration Assessment Authority’ with a reference tothe ‘ART’ in section 99 (Information is answer) andsection 103 (Bogus documents not to be given etc). These amendmentsare consequential to the repeal of Part 7AA by item 228 andreference change from Tribunal to ‘ART’, and do notaffect the current operation of these provisions.
Items27, 27A and 27B: Paragraph 109(3)(c), Paragraph109(3)(d), and at the end of section 109
Notification of decision - visacancellation under subsection 109(1)
452. These items clarify the requirements for the notification of a visacancellation decision under subsection 109(1) of the MigrationAct.
455. Item 27B inserts new subsections109(6) and (7) into theMigrationAct. New subsection109(6) clarifies thatclause267 of the ARTBill - which provides that adecision-maker must have regard to the rules when givingnotice of a decision - does not apply to notifications givenunder subsection109(3) of the MigrationAct in relationto the cancellation of a visa under subsection109(1).Disapplying clause267 of the ARTBill allows theDepartment of Home Affairs to develop notices that are appropriateand tailored to cancellation decisions under section109 ofthe MigrationAct. This allows the administration of thecomplex visa framework the appropriate degree of transparency,certainty and consistency. The intent is to ensure that thelegislative arrangements in relation to rights of review ofdecisions operate fairly and efficiently.
456. New subsection 109(7) provides that clause268 of theARTBill does not apply in relation to decisions to cancel avisa under section109 of the MigrationAct.Clause268 provides that a person affected by a reviewabledecision may request reasons for that decision from thedecision-maker. Clause268 is disapplied in relation todecisions under section 109 because subsection109(3) requires(among other things) that notification of a cancellation decisionmust specify the grounds for the cancellation.
Item28: Subsection114(1)
Terminology changes
457. This item replaces the reference to ‘Administrative AppealsTribunal’ with ‘ART’. See explanation of generalterminology changes above.
Items 29 and 30: Paragraph 127(2)(b), Paragraph 127(2)(c)
Repealing provisions no longer necessary;Updating legislative references
458. These items are consequential to the repeal of Part 7 byitem228. Item 29 repeals paragraph127(2)(b), whichrequires that the notification of a decision specify whether thedecision is reviewable under Part 5 or Part 7. As the proceduresacross reviews of reviewable migration and protection decisions bythe Tribunal will be harmonised by the repeal of Part 7 initem228, paragraph127(2)(b) is no longer necessary.
459. Item 30 removes the reference to Part 7 fromparagraph127(2)(c). Paragraph127(2)(c) sets out thenotification requirements where the former visa holder has a rightof review to the Tribunal and the amendment clarifies that reviewof a decision is sought by application under Part 5. Newsections347 and 347A in Part 5 of the Migration Act, insertedby item 136, set out the requirements for an application to theTribunal for review of a reviewable migration decision or areviewable protection decision.
Item31: Paragraph 127(2)(c)(i)
Terminology changes
460. This item inserts a reference to the Tribunal into paragraph127(2)(c)(i). This amendment is related to items 29 and 30 andprovides that if the former visa holder has a right to have adecision reviewed by application under Part 5, then the notice muststate that the decision can be reviewed by the Tribunal.
Item32: At the end of section127
Notification of decision -cancellation of visas under Subdivision D
461. This item inserts new subsections (4) and (5) to section127of the Migration Act, which deals with the notificationrequirements for a cancellation decision under Part2,Subdivision D of this Act.
462. New subsection127(4) provides that clause267 of the ARTBill does not apply to notifications of a cancellation decisionmade under this section.
463. Clause267 of the ART Bill requires that, in giving notice ofa decision, the decision-maker must have regard to mattersprescribed by rules. The rules will be used to set out bestpractice considerations for giving notice, including the content ofthose notices. It is anticipated that these rules will be based onthe Code of Practice for Notification of Reviewable Decisions andRights of Review made under subsection 27B(1) of the AAT Act.
464. Disapplying clause267 of the ART Bill allows the Departmentof Home Affairs to develop notices that are appropriate andtailored to cancellation decisions under section127 of theMigration Act. This allows the administration of the complex visaframework the appropriate degree of transparency, certainty andconsistency, for a cohort which includes persons in immigrationdetention. Notification that is compliant with the proceduralrequirements governs the commencement periods for making anapplication to the Tribunal. The intent is to ensure that thelegislative arrangements in relation to rights of review ofdecisions operate fairly and efficiently.
465. New subsection127(5) provides that clause268 of the ARTBill does not apply in relation to a decision to cancel aperson’s visa. Clause268 of the ART Bill provides thata person affected by a reviewable decision may request reasons forthat decision from the decision-maker. Clause268 of theART Bill is disapplied in relation to decisions to cancel a visabecause section 127 of the Migration Act provides (among otherthings) that notification decisions to cancel a visa must specifythe ground for cancellation (see, relevantly, paragraph 127(2)(a)of the Migration Act).
Items 33, 34 and 35: Subsection133A(1), Paragraph133A(5)(c), and Subsection133A(9)
Updating legislative references
466. These items update legislative references to the AAT, the formerMigration Review Tribunal, Refugee Review Tribunal insection133A to the Tribunal, the former AAT, the formerMigration Review Tribunal or former Refugee Review Tribunal. Theseamendments are technical in nature, and ensure thatsection133A of the Migration Act continues to operate insubstantively the same way.
Items 36, 37 and 38: Subsection133C(1), Paragraph133C(5)(c), and Subsection133C(10)
Updating legislative references
467. These items update legislative references to the AAT, the formerMigration Review Tribunal, Refugee Review Tribunal in insection133C to the Tribunal, the former AAT, the formerMigration Review Tribunal or former Refugee Review Tribunal inrelation to the Minister’s power to cancel visas undersection116 (prescribed circ*mstances). These amendments aretechnical in nature, and ensure that section133C of theMigration Act continues to operate in substantively the sameway.
Items 39 and 40: Subsection134(6) andSubsection134(7)(b)
Terminology changes
468. These items replace the reference to ‘Administrative AppealsTribunal’ with ‘ART’. See explanation of generalterminology changes above.
Item41: After subsection134(7A)
Notification of decision -cancellation of business visa
469. This item inserts new subsection(7B) to section134 ofthe Migration Act, which deals with cancellation of businessvisas.
470. New subsection 134(7B) provides that clause 267 of the ART Billdoes not apply in relation to notices given under subsection134(7).
471. Clause267 of the ART Bill requires that, in giving notice ofa decision, the decision-maker must have regard to mattersprescribed by rules. The rules will be used to set out bestpractice considerations for giving notice, including the content ofthose notices. It is anticipated that these rules will be based onthe Code of Practice for Notification of Reviewable Decisions andRights of Review made under subsection 27B(1) of the AAT Act.
472. Disapplying clause267 of the ART Bill allows the Departmentof Home Affairs to develop notices that are appropriate andtailored to cancellation of business visa decisions undersection134 of the Migration Act. The approach allows theadministration of the business visa framework the appropriatedegree of transparency, certainty and consistency.
473. Notification that is compliant with the procedural requirementsgoverns the commencement periods for making an application to theTribunal. The intent is to ensure that the legislative arrangementsin relation to rights of review of decisions operate fairly andefficiently.
Items42 and 43: Subsection134(8) and section136
Terminology changes
474. These items replace the references to ‘Administrative AppealsTribunal’ (wherever occurring) with ‘ART’. Seeexplanation of general terminology changes above.
Item44: Subparagraph 137M(2)(b)(i)
Terminology changes
475. This item amends subparagraph 137M(2)(b)(i) to remove therequirement to state in the notice that the decision is reviewable‘under Part 5’, and clarify the requirement fornotifications to state that the decision is reviewable ‘bythe ART’. In light of the reform and repeal of Part 7, thepractical information for the person is that the decision isreviewable (as opposed to what part of the Act the decision isreviewable under). This aligns with the requirement inparagraph66(2)(d) for notices of refusal to grant a person avisa.
Item45: At the end of section137M
Notification of decision
476. This item inserts new subsections(4) and (5) tosection137M of the Migration Act, which sets out thenotification requirements where the Minister does not revoke theautomatic cancellation of a student visa under section137L ofthe Migration Act.
477. New subsection137M(4) provides that clause267 of theART Bill does not apply to notifications of decisions not to revokea cancellation.
478. Clause267 of the ART Bill requires that, in giving notice ofa decision, the decision-maker must have regard to mattersprescribed by rules. The rules will be used to set out bestpractice considerations for giving notice, including the content ofthose notices. It is anticipated that these rules will be based onthe Code of Practice for Notification of Reviewable Decisions andRights of Review made under subsection 27B(1) of the AAT Act.Clause 267 of the ART Bill is displaced because subsection 137M(2)of the Migration Act sets out the requirements for a notificationof a decision not to revoke a cancellation.
479. Disapplying clause267 of the ART Bill allows the Departmentof Home Affairs to develop notices under section137M of theMigration Act that are appropriate and tailored to decisions not torevoke a cancellation under section 137L of the Migration Act. Thisallows the administration of the complex visa framework theappropriate degree of transparency, certainty and consistency.Notification that is compliant with the procedural requirementsunder the Migration Act triggers the commencement of the timeperiod for making an application to the ART. The intent is toensure that the legislative arrangements in relation to rights ofreview operate fairly and efficiently.
Items 46 and 47: Paragraph 137S(1)(b) and Paragraph137S(1)(c)
Updating legislative references
481. These items update the notice requirements for a decision to cancela person’s visa under section137Q. Paragraph 137S(1)(b)is removed as the requirement is covered by paragraph137S(1)(c).
482. Item47 updates paragraph 137S(1)(c) to clarify that decisionsare reviewable ‘by application under Part 5’. Newsections347 and 347A in Part 5 of the Migration Act, insertedby item 136, set out the requirements for an application to theTribunal for review of a reviewable migration decision or areviewable protection decision.
483. These amendments are technical in nature, and ensure thatsection137S of the Migration Act continues to operate insubstantively the same way in relation to the Tribunal.
Item48: At the end of section137S
Notification of cancellation
484. This item inserts new subsections(3) and (4) tosection137S of the Migration Act, which sets out thenotification requirements for cancellation of a regional sponsoredemployment visa under section137Q.
485. New subsection(3) provides that clause267 of the ARTBill does not apply to notifications of a cancellation decisionmade under this section.
486. Clause267 of the ART Bill requires that, in giving notice ofa decision, the decision-maker must have regard to mattersprescribed by rules. The rules will be used to set out bestpractice considerations for giving notice, including the content ofthose notices. It is anticipated that these rules will be based onthe Code of Practice for Notification of Reviewable Decisions andRights of Review made under subsection 27B(1) of the AAT Act.
487. Clause 267 of the ART Bill is displaced because section 137S of theMigration Act already sets out the requirements for a notificationof a decision to cancel a regional sponsored employment visa, andkeeping clause 267 of the ART Bill means there could becontradictory obligations imposed to what is already required inthe Migration Act framework.
488. New subsection137S(4) provides that clause268 of theART Bill does not apply to decisions to cancel a regional sponsoredemployment visa. Clause268 of the ART Bill provides thatpersons affected by a reviewable decision may request reasons forthat decision from the decision-maker. Clause268 of theART Bill has been disapplied for persons who have had theirregional sponsored employment visa cancelled undersection137S because the decision-maker must alreadyprovide written reasons for a decision underparagraph137S(1)(a).
Item49: Subsection137T(2)
Notification of cancellation
489. This item amends section 137T(2) of the Migration Act to clarifythat a cancellation under section 137T(1) is set aside under theART Bill (as opposed to Part 5 of the Migration Act). Thisamendment is technical in nature, and is to ensure thatsection137T(2) of the Migration Act continues to operate insubstantively the same way in relation to the Tribunal.
Item 49A: At the end of section 140N
Notices of decision
490. This item inserts new subsection140N(4) into theMigrationAct, which relates to decisions made undersection140M. Section140M of the MigrationActenables or requires (if regulations are made undersection140L of the MigrationAct) the Minister to cancelor bar former or current approved sponsors. Section140Nenables the regulations to establish a process for cancelling orbarring a person under section140M.
491. New subsection140N(4) provides that, if the regulationsprovide for notification by the Minister of the decision to takeaction under section140M of the MigrationAct to cancelthe approval of a person as a work sponsor or family sponsor,clauses267 and268 of the ARTBill do not apply tothe decision. The amendment has the effect that clauses267and268 do not apply to notices given under the MigrationRegulations for the purposes of taking actionunder section140M.
492. Clause 267 of the ARTBill requires that, in giving notice ofa decision, the decision-maker must have regard to mattersprescribed by the rules. Disapplying clause267 allows theDepartment of Home Affairs to develop notices that are appropriateand tailored to notifications under section140N of theMigrationAct. This allows the administration of the complexvisa framework the appropriate degree of transparency, certaintyand consistency. The intent is to ensure that the legislativearrangements in relation to rights of review of decisions operatefairly and efficiently.
493. Clause 268 of the ARTBill provides that a person affected bya reviewable decision may request reasons for that decision fromthe decision-maker. Clause268 is disapplied in relationto decisions under section140M of the MigrationActbecause regulation2.98 of the MigrationRegulationsrequires (among other things) the decision-maker to providethe grounds for making the decision.
Item50: Paragraph 178(2)(b)
Repealing provisions no longer necessary
494. This item removes a reference which is no longer required,consequential to the repeal of Part 7 by item228. Thisamendment is technical in nature and ensures that section178of the Migration Act continues to operate in substantively the sameway in relation to the Tribunal.
Item51: Paragraph 197D(4)(c)
Repealing provisions no longer necessary
495. This item removes a reference which is no longer required,consequential to the repeal of Part 7 by Item228, andreflects the harmonisation of Parts 5 and 7 into new Part 5, whichnow includes reviewable protection decisions. This amendment istechnical in nature and ensures that section197D of theMigration Act continues to operate in substantively the same way inrelation to the Tribunal.
Items 52, 53, 54 and 55: Paragraph 197D(6)(a), Paragraph197D(6)(b), and Paragraph197D(6)(c)
Updating legislative references
496. These items provide for updates consequential to the repeal of Part7 by item228, and reflect the harmonisation of Parts 5 and 7into new Part 5.
497. Paragraphs 197D(6)(a) and (b) also include amendments that aretechnical in nature to align with the language used in revisedsection348, inserted by item136, to refer to anapplication that is ‘properly made’, rather than avalid application. This ensures that section197D of theMigration Act operates in substantively the same way.
Item56: At the end of section197D
Notification of decision that protectionfinding would no longer be made
498. This item inserts new subsection197D(7) which provides thatclause268 of the ART Bill does not apply to a decision that aprotection finding would no longer be made. Clause268 of theART Bill provides that persons affected by a reviewable decisionmay request reasons for that decision from the decision-maker.Clause268 of the ART Bill will not apply if the Minister hasmade a decision that a ‘protection finding’ would nolonger be made in respect of that person undersubsection197D(2) of the Migration Act, asparagraph197D(4)(b) already requires written reasons to beprovided to the person.
499. The approach allows the administration of the complex and sensitiveprotection findings framework the appropriate degree oftransparency, certainty and consistency. Notification that iscompliant with the procedural requirements governs the commencementperiods for making an application for Tribunal review. The intentis to ensure that the legislative arrangements in relation torights of review operate fairly and efficiently.
Items 57 and 58: Paragraph202(2)(c) and Subsection202(3)
Deportation of non-citizens uponsecurity grounds
500. These items amend terminology. See explanation of generalterminology changes above.
501. In addition to general terminology changes, item57 amendsparagraph202(2)(c) to omit the reference to a 30-day timelimit for applying for review of an adverse security assessment.The effect of this amendment is that the time limits for applyingto the Tribunal for review in clause18 of the ART Bill willapply to these applications. Clause18 of the ART Bill allowsthe rules to specify the timeframes for applying for review, whichcannot be less than 28days from the date of the decision.
Item59: Subsection202(5)
Terminology changes and updating legislativereferences
502. This item replaces subsection202(5) to disapplyclause19 of the ART Bill such that the Tribunal cannot extendthe period during which a person may apply to the Tribunal for areview of an adverse security assessment. This amendment istechnical in nature, and ensures that section202 of theMigration Act continues to operate in substantively the same way inrelation to the Tribunal.
Item60: Paragraph261AKD(2)(c)
Terminology changes
503. This item amends terminology. See explanation of generalterminology changes above. Additionally, it removes reference tothe IAA, consequential to the repeal of Part 7AA byitem228.
Item61: Section268AA (definition of tribunalmember )
Terminology changes
504. This item repeals the definition of ‘Tribunal member’,which is replaced by ‘ART member’ as inserted byitem5 of this Schedule.
Items 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75,76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88 and 89: Variousprovisions in Division 14A of Part 2
Terminology changes
505. In Division 14A of Part 2, powers are conferred upon a Tribunalmember or a magistrate in relation to orders and warrants thatsupport the monitoring of compliance with student visa conditions.These items replace ‘Tribunal member’ with ‘ARTmember’ throughout this Division, consistent with terminologychanges provided by items 5 and 61.
Item90: Subsection271(4) (paragraphs(b) and(c) of the definition of migration proceedings )
Terminology changes and repealing provisionsno longer necessary
506. This item amends terminology. See explanation of generalterminology changes above.
507. Additionally, it removes reference to the IAA, consequential to therepeal of Part 7AA by item228. It clarifies that migrationproceedings includes proceedings in the Tribunal for review of areviewable under the Migration Act.
Item91: Section275 (definition of reviewauthority )
Repealing provisions no longer necessary
508. This item repeals the definition which is no longer necessaryconsequential to the amendments made by items 10 and 228, whichrespectively repeal the defined terms ‘Part 5-reviewabledecision’ and‘Part7-reviewabledecision’from subsection5(1) of the MigrationAct, and Part 7AA (which contains Immigration Assessment Authorityprovisions).
Items 92 and 93: Paragraphs 276(1)(c) and (d), and Paragraph276(2)(c)
Terminology changes
509. These items replace references to ‘review authority’consequential to the repeal by item91, and clarify that theparagraphs apply to proceedings before the Tribunal.
Item94: Paragraph 276(2A)(a)
Repealing provisions no longer necessary
510. This item removes a reference which is no longer necessaryconsequential to the repeal of Part 7 by item228. Thisamendment is technical in nature and ensures that section276of the Migration Act continues to operate in substantively the sameway in relation to the Tribunal.
Items 95 and 96: Subsection278A(10) (heading),Subsection278A(10)
Terminology changes
511. These items amend terminology. See explanation of generalterminology changes above.
Item 97: Subsection278A(10) (note)
Terminology changes
512. This item replaces the note at the end of the subsection to alertreaders that the ARTBill requires reasonable steps to betaken to notify persons affected by a reviewable decision abouttheir rights of review.
Item98: Paragraph 282(4)(e)
Repealing provisions no longer necessary
513. This item removes a reference which is no longer necessaryconsequential to the repeal of Part 7 by item228. Thisamendment is technical in nature and ensures that section282of the Migration Act continues to operate in substantively the sameway in relation to the Tribunal.
Item99: Paragraph288(6A)(c)
Terminology changes
514. This item amends terminology to refer to the ART Bill. Seeexplanation of general terminology changes above.
Item100: Section295 (note)
Terminology changes
515. This item replaces the note at the end of the sectionto alertreaders that an application for review of the decision can be madeto the Tribunal, and that the ART Bill requires reasonable steps tobe taken to notify person affected by a decision about their rightsof review. This amendment is technical in nature and ensures thatsection295 of the Migration Act continues to operate insubstantively the same way in relation to the Tribunal.
Item101: Paragraphs 300(2)(b), (3)(a) and (b)
Terminology changes
516. This item amends terminology. See explanation of generalterminology changes above. This item provides that an automaticcontinuation of a migration agent’s registration is subjectto certain decisions of the Tribunal.
Item102: Section306
Terminology changes
517. This item amends terminology. See explanation of generalterminology changes above. It provides that applications may bemade to the Tribunal for review of decisions by the MigrationAgents Registration Authority on registration of migration agents.This amendment is technical in nature and ensures thatsection306 of the Migration Act continues to operate insubstantively the same way in relation to the Tribunal.
Item103: Section306AA
Terminology changes
518. This item amends terminology. See explanation of generalterminology changes above. This amendment provides that during theperiod of a stay order by the Tribunal to cancel or suspend amigration agent’s registration, the agent is subject toprescribed supervisory requirements.
Item104: Section311F
Terminology changes
519. This item replaces the sectionwith terminology updates toprovide that applications may be made to the Tribunal for review ofdecisions by the Migration Agents Registration Authority, barringformer registered migration agents from being registered for upto5years. This amendment is technical in nature andensures that section311F of the Migration Act continues tooperate in substantively the same way in relation to theTribunal.
Items 105 and 106: Subsection312B(1),Subsection312B(3) (definition of reviewapplication )
Terminology changes
520. These items are consequential to the repeal of the term‘review authority’ by item91, to clarify that aregistered migration agent who gives assistance with an applicationto the Tribunal for review of a decision to refuse a persona visa ,is required to notify the Tribunal in accordance with the Migration Agents Regulations 1998 .
Items 107, 108, 109, 110, 111, 112, 113 and 114: Variousprovisions in Divisions 6, 6A and 7 of Part 3
Terminology changes
521. These items are consequential to the repeal of the term‘review authority’ by item91, and replace theterm to reference the Tribunal in relation to disclosure and use ofpersonal information about a registered migration agent, oraninactive migration agent.
522. The amendments to paragraph321A(1)(b) andsubsection332F(1) provide for the Migration AgentsRegistration Authority and the Secretary respectively, to disclosesaid information to the Tribunal in prescribed circ*mstances. TheMigration Agents Regulations 1998 may prescribe the circ*mstancesthe Tribunal may use or disclose the information received.
523. The amendments to section 332G provide for discretionary disclosureby the Tribunal to the Secretary or an authorised officer inprescribed circ*mstances. The Tribunal must disclose to theDepartment of Home Affairs when a registered migration agentnotifies it that that the agent has given immigration assistance toa review applicant.
Item115: Paragraph336E(2)(f)
Repealing provisions no longer necessary
524. This item amends terminology. See explanation of generalterminology changes above. Additionally, it removes reference tothe IAA, consequential to the repeal of Part 7A by item228.This item provides that a disclosure of identifying information forthe purposes of a proceeding before the Tribunal is a permitteddisclosure.
Item116: Subsection336F(5) (note)
Updating legislative references
525. This item reflects the updated definition of ‘finallydetermined’ located at section11A, inserted byitem15. This amendment is technical in nature and ensuresthat section336F of the Migration Act continues to operate insubstantively the same way in relation to the Tribunal.
Item117: Part 5 (heading)
Terminology changes
526. This item repeals and substitutes a new heading for Part 5 of theMigration Act. This amendment is necessary due to the repeal ofPart 7 by item228, and the insertion of new defined terms‘reviewable migration decision’ and ‘reviewableprotection decision’ by item11.
Item118: Division 1 of Part 5
Terminology changes
527. This item replaces the title of Division1 of Part5 to‘Preliminary’ to better reflect the purpose and notduplicate the title of section337.
Item119: Section336M
528. This item replaces the simplified outline of Part 5, consequentialto the repeal of Part7 by item228, and describes thedecisions that are in and out of scope of the revised Part 5.
Item 120:Section336N
Repealing provisions no longer necessary
529. This item replaces the section to set out in new section336Nthat revised Part5 covers the review of both reviewablemigration and protection decisions by the Tribunal. It includes anote referring readers to the definition of ‘ART’ insubsection5(1), inserted by item5.
530. This item also inserts new section336, which provides how theART Bill applies in relation to reviews of reviewable migration andprotection decisions.
531. Subclause (1) provides that the ART Bill applies in relation toreviews of reviewable migration and protection decisions, unlessthey are expressly disapplied in this Part. Where provisions of theART Bill apply, they apply subject to section357A of theMigrationAct (Exhaustive statement of natural justice hearingrule), as amended by this Schedule.
532. Subclause336P(2) lists provisions of the ARTBill whichdo not apply to Tribunal reviews of reviewable migration andprotection decisions.
533. Paragraphs 336P(2)(a), (b), (c) and (d) disapply theARTBill’s initial notification requirements anddocument production arrangements, because more tailoredarrangements exist in the MigrationAct. Section352 ofthe MigrationAct (which is retained with minor amendmentsmade by items144, 145 and 146) provides how the Secretary isto be notified of reviews (equivalent to paragraph21(2)(b) ofthe ARTBill), and what information must be provided to theTribunal in the first instance (equivalent to clause23 of theARTBill).
534. The Tribunal is not required to notify parties who become partiesby operation of law (per paragraph21(2)(c) of theARTBill), or any other persons who may be affected by thedecision (per subclause21(3) of the ARTBill). This isbecause the MigrationAct prescribes the relevant parties of areview (see proposed sections347A and 348A, inserted byitem136).
535. Paragraphs 336P(2)(e), (f) and (g) disapply the rules fordecision-makers to provide the Tribunal with documents andstatements in clauses24, 25 and 27 of the ARTBill.These provisions are switched off in recognition of the volume ofreviewable migration and protection decisions, which necessitate amore tailored approach to fact-finding and informationproduction to support reviews.
536. Clause24 of the ARTBill (decision-maker must giveTribunal additional statement if Tribunal requires—generalrule) is disapplied because it would require the Department of HomeAffairs to prepare new materials to support a review - asignificant resource impost. Similarly, clause25 of theARTBill (decision-maker must give Tribunal additionaldocuments within 28 days—general rule) is disapplied becauseit would place an ongoing obligation on the Department of HomeAffairs to monitor, identify and disseminate information that maybe relevant to a review. The requirement to give additionaldocuments to the Tribunal is not reasonably able to be compliedwith given the volume of materials provided to the Department aspart of administering the migration system. Clause26 of theARTBill (decision-maker must give Tribunal additionaldocuments on request - general rule) applies, which allowsthe Tribunal to make targeted requests for specific documents whereit considers they would assist in the review.
537. Clause27 of the ARTBill (decision-maker must givecopies of reasons and documents to other parties—generalrule) is disapplied, because new subsection362A(1) in item164 provides the applicant is entitled to request the Department ofHome Affairs provide access to any written material, or a copy ofany written material, given or produced to the Tribunal for thepurposes of the review.
539. Paragraph336P(2)(i) disapplies clause85 of theARTBill (Tribunal may remit decision to decision-makerfor reconsideration). Remittals are provided for under existingsection349 of the MigrationAct (as amended byitem136 to enable the Tribunal to exercise broader powers ofremittal, if prescribed). This preserves thefinallydetermined framework and provides for certainty abouta person’s visa status.
540. Paragraph336P(2)(j) disapplies clause103 of theARTBill (if parties reach agreement—review of decisionsonly). Negotiated agreements are not compatible with the binarynature of the decisions under review.
541. Paragraph336P(2)(k) disapplies clause107 of theARTBill (when Tribunal’s decision on review comes intooperation). This recognises that the integrity of Australia’smigration framework requires a high degree of certainty around whenthe Tribunal’s decision is made to protect applicants frombeing improperly placed in immigration detention. TheMigrationAct retains bespoke arrangements, provided for innew sections368 and 368B (see item171).
542. Paragraph336P(2)(l) partially disapplies clause294 ofthe ARTBill, such that aperson who applies to theTribunal for review of adecision under thisPart cannotmake an application to the Attorney-General for legal orfinancial assistance, unless the decision is one that has beenreferred to the guidance and appeals panel by the President of theTribunal under clause 122 of the ART Bill. Thisitemretains the effect of subsection69(3) of theAATAct in which an application for legal assistance to theAttorney-General is not currently available in the Migrationand Refugee Divisionof the AAT. However, it ensures that, ifa decision of the Tribunal is considered sufficiently significantto warrant consideration by the guidance and appeals panel,applicants can access additional support.
Item121: Section337 (definition of decision on areview )
543. This item replaces the definition of ‘decision on areview’ consequential to the changes made by item 10, torefer to the relevant provisions of the ART Bill of the MigrationAct (as amended by this Schedule).
544. This amendment is technical in nature and ensures the Migration Actcontinues to operate in substantively the same way in relation todecisions on a review by the Tribunal.
Item122: Section337
Repealing provisions no longer necessary
545. This item repeals the definition of ‘Part 5-reviewabledecision’ from this section, consequential to the repeal ofthat defined term by item10. This item also repealsdefinitions of ‘member’ (repealed by item61) and‘Registrar’ (repealed by item 122), consequential tothe new terms of ‘ART member’ and ‘ART PrincipalRegistrar’ inserted by item5.
546. It also repeals the definition of ‘officer of theTribunal’, which referred to a defined term in the AAT Act.This term does not exist in the ART Bill so the definition is nolonger necessary.
Item123: Section337 (note)
Repealing provisions no longer necessary
547. This item repeals the note to section337, consequential tothe repeal of the defined term ‘Tribunal’ byitem12. An alternative note is inserted in newsection336N by item120.
Item124: Division 2 of Part 5
Repealing provisions no longer necessary
548. This item repeals the heading consequential to the repeal of thedefined term ‘Part5-reviewable decision’ byitem10, and the harmonisation of Parts 5 and 7 of theMigration Act. Sections338 and339 (as amended) willbecome part of the renamed Division1—Preliminary, withno effect on the interpretation of those sections.
Item125: Section338 (heading)
Terminology changes
549. This item changes the heading of section338 to reflect thechange to the definition within the sectionto‘ reviewable migration decision ’, as amended by item126below, and consequential to the amendments effected by items 10 and11.
Item126: Subsection338(1)
Terminology changes
550. This item amends terminology, consequential to the amendments madeby items 10 and 11 which respectively repeal the definition of‘Part 5-reviewable decision’ and insert the new definedterm ‘reviewable migration decision’.
Item127: Paragraph 338(1)(b)
Terminology changes
551. This item amends terminology, consequential to the amendments madeby items 10 and 11 which respectively repeal the definition of‘Part 7-reviewable decision’ and insert the new definedterm ‘reviewable protection decision’.
Items 128 and 129: Paragraph 338(1)(c) and paragraph338(1)(d)
Repealing provisions no longer necessary
552. Item128 makes changes to the punctuation of paragraph (c) toreflect that it is the final paragraph in subsection338(1).Item129 repeals paragraph (d) referring to fast trackdecision, which is no longer necessary, consequential to the repealof Part 7AA by item228.
Items 130, 131 and 132: Subsections 338(2) to (3A),subsection338(4),subsections338(5)to(9)
Terminology changes
553. These items amend terminology, consequential to the amendments madeby items 10 and 11 which respectively repeal the definition of‘Part 5-reviewable decision’ and insert the new definedterm ‘reviewable migration decision’.
Item133: After section338
Meaning of reviewable protectiondecision
554. This item inserts new section338A in Division1 ofPart5 and defines ‘reviewable protectiondecision’. New section338A reflects the currentdefinition in section411 in Part 7 of the MigrationAct,repealed by item228.
555. Subsection(1) replicates current section411 of theMigrationAct. Subsection(2) omits the reference to fasttrack decisions, consequential to the repeal of Part 7AA byitem228.
556. The content of existing subsection411(3), which concerns theissuing of conclusive certificates, is not replicated insection338A as it is not necessary. Section339, whichis identical to subsection411(3), provides the requirementsfor issue of conclusive certificates for both reviewable migrationdecisions and reviewable protection decisions.
557. New section338A does not change the availability of Tribunalreview for decisions under the Migration Act.
Item134: Section339 (note)
Terminology changes
558. This item amends terminology and is consequential to the repeal ofthe defined term ‘Part 5-reviewable decision’ byitem10. It clarifies that if a conclusive certificate isissued, the decision is not a reviewable migration decision or areviewable protection decision, under the relevant provisions ofthe Migration Act.
Items 135, 147, 149, 173 and 189: Headings of Divisions 3, 4,5, 8 and 8A in Part 5
Replace headings
559. These items repeal and replace the headings of Divisions3, 4,5, 8 and 8A in Part 5. The new headings of the Divisions arerenumbered to reflect the repeal of Division2 of Part 5, byitem124. The new headings reflect that Part5 now coversreview of reviewable migration and protection decisions.
Item135: Division 3 of Part 5 (heading)
Updating heading
560. This item amends the heading of what is now Division 2 to reflectthe restructure of Part5 to incorporate provisions relatingto reviewable protection decisions, and the repeal of Part7by item228.
Item136: Sections347 to 349
561. This item repeals and substitutes existing sections347, 348and349, setting out how to make an application for Tribunalreview, who may apply and who the other parties to a review can be.It also deals with when the Tribunal can remit decisions to theDepartment of Home Affairs.
562. Item136 also restructures new Division 2, and insertssections347A and348A, to enhance readability andclarify the process for making an application for review by theTribunal, and to reflect modern drafting practices.
Section347 - Application for ARTreview
563. Subsection347(1) provides that applications may be made tothe Tribunal for review of reviewable migration and protectiondecisions.
564. Subsection347(2) provides that an application for review mustinclude any information, documents and fees that are prescribed inthe Migration Regulations. Certain information must be providedalongside an application to allow the Tribunal and the Departmentof Home Affairs to identify the applicant, and the specificdecision being reviewed. This is required because a person’svisa status, and therefore right to remain in Australia, may bedependent on whether they have lodged a valid application forreview.
565. Applications to the Tribunal are no longer required to be in an‘approved form’ (from existingparagraphs347(1)(a) and412(1)(a)), providing greaterflexibility for applicants and enabling substantial compliance withthe requirements outlined in subsection347(2).
566. Subsections347(3) and (4) set out standardised timeframes forapplications: seven days for those in immigration detention, and28days otherwise. These provisionssignificantlystandardise the timeframe to apply for review ofcertain decisions, in order to create a consistent timeframe acrosssimilar applications for review of decisions.
567. Existing subsection412(4), which provides for periods to bespecified in the MigrationRegulations, will no longer apply,consequential to the repeal of Part 7by item228. Thecurrent 70-day lodgement timeframe for people outside Australiawill also be standardised to 28 days, reflecting that electroniccommunication renders the longer timeframe unnecessary.
568. The seven-day lodgement timeframe for people in immigrationdetention is a significant increase in time from the currentrequirement (in some cases) to apply for review of a decisionwithin twodays from being notified of the decision. It isintended to allow sufficient time for a person to make anapplication for review, while avoiding delays that would prolong aperson’s stay in detention, or delay removal or departurefrom Australia when a person has no further right to remain.
569. Subsection(5) disapplies clause19 of the ARTBill,providing that the Tribunal is precluded from extending the periodduring which a person may apply to the Tribunal for review of areviewable migration or protection decision. This is consistentwith the current legislative framework. The provision is intendedto avoid interfering with provisions in the Migration Act relatingto when applications are being reviewed by the Tribunal, and whenthey are finally determined. A person’s immigration status inAustralia is managed by the Department of Home Affairs, and maydepend on whether they have made a properly made application forreview. A finite timeframe for lodgement of applications isessential to knowing when an application is ‘finallydetermined’ and ensures clarity in relation to aperson’s visa status.
570. Subsection(6) disapplies subclauses34(2) and (3) of theARTBill (information to include in applications andvalidity), so that the President may not specify information to beincluded with the application in practice directions. This reflectsnew subsection(2) which provides the information that mustaccompany a review application. Subclause34(1) of the ARTBill applies, providing that the application may be made in writingor in any other manner specified in the practice directions.
571. Subsection(7) clarifies that the requirement set out inparagraph(2)(c) overrides any rules made underclause296 of the ARTBill in relation to fees for anapplication for review of a reviewable migration or protectiondecision.
Section347A - Who can apply forART review etc.
572. New section347A replicates currentsubsections347(2),(3) and(3A) andsubsections412(2) and(3), with updated terminology forreviewable migration and protection decisions. The effect of thosesubsectionsis unchanged. They set out who is eligible toapply for review of a reviewable migration decision.
573. Subsection347A(6) clarifies that this sectiondisplacesclauses17 (who can apply) and35 (applications may bemade on behalf of a person) of the ART Bill. A person may stillreceive assistance with their application from another person.
Section348 - ART to review reviewablemigration decisions and reviewable protection decisions
574. Section348, which confers jurisdiction on the Tribunal toreview a reviewable migration or protection decision, isreplicated, with a slight revision to reflect modern draftingpractices and to reflect the repeal of Part7 andharmonisation of Parts 5 and 7 of the Migration Act. This iteminserts a new note clarifying the Tribunal has no jurisdiction toreview a decision if the application for review is not properlymade. This preserves the existing arrangements. A consequence ofsection348 is that clause 97 of the ART Bill (Tribunal mustdismiss application if decision not reviewable decision) has nooperational effect for applications made under Part 5 that are notproperly made.
Section348A - Parties to aproceeding for review
575. New subsection348A sets out how the arrangements under theART Bill for participation of decision-makers (provided inSubdivisionB of Division5 of Part4 of theARTBill) will operate in relation to reviewable migrationdecisions and reviewable protection decisions and provides who maybe a party to proceedings.
576. New subsection348A(1) provides that the Minister is regardedas a non-participating party in Tribunal reviewproceedings under clause61 of the ART Bill.Subsection348A(3) further prevents the Minister from giving aparticipation notice (anotice that they wish to participatein the proceeding) to the Tribunal under clause62 of theARTBill and written submissions under clause63 of theARTBill. Cumulatively, these provisions replicate the effectof the existing law, where the Minister is not a party to thereview, and does not participate or make submissions.
577. Subsection348A(4) applies to alter the effect ofsubclause63(2) of the ARTBill, enabling only a DeputyPresident or the President of the Tribunal to order anon-participating party (here, the Minister - inpractice, the Minister’s delegate) to either appear beforethe Tribunal, provide submissions or participate in theproceeding.
578. This approach balances the benefits of applicant-only reviews- which can occur more quickly and with less formality- with the benefits of enhanced powers for the Tribunal torequest or require participation where it would assist inprogressing the proceeding or in making the correct or preferabledecision.
579. Subsection348A(5) provides that any rules made underclause64 of the ARTBill in relation to theparticipation of decision-makers in proceedings do not applyto reviewable migration decisions or reviewable protectiondecisions. This is because subsection(1) deems the Ministerto be a non-participating party, so rules made in relation toelection notices would have no application.
580. Subsection348A(2) disapplies paragraph22(1)(c) ofthe ARTBill so that another person cannot apply to become aparty to a proceeding. This replicates existing settings, in whichonly the subject of a visa decision can be a party to a review.
Section349 - Remittal
581. New subsection349(1) disapplies subparagraph105(c)(ii)of the ARTBill, which allows the Tribunal to make a decisionon the review of a reviewable decision remitting the decision tothe original decision-maker for reconsideration. Newsubsection(2) allows the Tribunal to make a decision on thereview remitting a prescribed matter for reconsideration with suchorders or recommendations as are permitted by theMigrationRegulations. This reflects the existing legislativeframework (that is, existing paragraphs349(2)(c)and415(2)(c) of the MigrationAct).
582. Subsection349(3) clarifies that subclause31(1) of theARTBill (decision cannot be altered outside Tribunal process)does not affect the Tribunal’s ability to remit a matterunder this section.
Items 137 and 138: Subsection350(1),Subsection350(2)
Terminology changes
583. These items amend terminology to provide that the provisions applyin relation to the actions and decisions of the Tribunal.
Items 139, 140, 140A and 141: Subsection351(1), afterSubsection 351(1), Paragraph351(4)(a)
Terminology changes and updating legislativereferences
584. The Minister’s discretion under subsection351(1) tosubstitute a more favourable decision on grounds of public interestis updated to replace the reference to section349 of theMigration Act with a reference to ‘decisions referred to insubsection (1A)’.
585. New subsection 351(1A) identifies the relevant decisions of theTribunal in relation to which subsection 351(1) applies:
· a decision under section 349 of the Migration Act
· a decision under section 368C of the Migration Act, and
· a decision under clause 105 of the ART Bill.
586. This makes it clear that that the Minister's power in subsection351(1) of the Migration Act is to be available for remittaldecisions under section 349 of the Migration Act, final decisionsmade under clause 105 of the ART Bill, and decisions made undersection 368C of the Migration Act. In particular, it is to beavailable in circ*mstances where an application is dismissed (underclauses 99, 100 and 101 of the ART Bill) and the applicant fails toapply for reinstatement and the Tribunal confirms the decision todismiss the application (see subsection 368C(5) of the MigrationAct), or where an applicant applies for reinstatement and theTribunal confirms the decision to dismiss the application (seeparagraph 368C(3)(b) of the Migration Act).
587. The items also update terminology.
Item142: Subsection351(5)
Terminology changes
588. This item updates the subsectionto specify that the exclusionof identifying information in the Minister’s statementapplies to a reviewable migration decision. This reflects theaddition in item143 of a new subsection specific toreviewable protection decisions. This amendment is technical innature and ensures that reviews of reviewable migration decisionscontinue to operate in substantively the same way in relation tothe Tribunal.
Item143: After section351(5)
Identity information relation to areviewable protection decision
589. This item inserts new subsection(5A), which is based onexisting subsection417(5), and only applies to a reviewableprotection decision. This addition to section351 reflects theconsolidation of Parts 5 and 7.
590. New subsection (5A) retains the ability for the Minister tosubstitute a decision made by the Tribunal on a review of areviewable protection decision with a more favourable decision. Itprohibits the Minister from including in the statement of thedecision any information that would identify the applicant in casesinvolving a reviewable protection decision. This amendment istechnical in nature and ensures that reviews of reviewableprotection decisions continue to operate in substantively the sameway in the Tribunal.
Item144: Section352 (heading)
Updating heading
591. This item amends terminology and is consequential to the repeal ofthe defined term ‘Part5-reviewabledecision’ by item10, and reflects that Part5applies to reviews of reviewable migration decisionsandreviewable protection decisions by the Tribunal.
Item145: Subsection352(1)
Terminology changes
592. This item amends terminology and reflects that applications aremade to the Tribunal for reviews of reviewable migration andprotection decisions.
Item146: Subsections352(2) and (4)
Terminology changes
593. This item amends terminology, consequential to amendments made byitems122 and5 which respectively repeal the definitionof ‘Registrar’ and insert the new defined term‘ART’. This amendment is technical in nature andensures that the provision of documents continues to operate insubstantively the same way in the Tribunal.
Item147: Division 4 of Part 5 (heading)
Updating heading
594. This item amends the heading of what is now Division 4 to reflectthe restructure of Part 5 to incorporate provisions relating toreviewable protection decisions, and the repeal of Part7 byitem228.
Item148: Sections 353 and 353B
595. This item repeals section353 (Tribunal’s way ofworking) because it is no longer necessary. The contents of thissectionare reflected throughout the ART Bill, in particular,in clause50 - which now applies to reviewable migrationand protection decisions, subject to section357A (as amendedby item151 of this Schedule).
596. This item also repeals section353B (Guidance decisions)because the Tribunal will have a guidance and appeals panel (seePart 5 of the ART Bill) which can make guidance decisions(clause109 of the ARTBill). This sectionisremoved so as not to duplicate or interfere with thosearrangements.
ART may require Secretary to arrange forinvestigations etc.
597. Revised section353 is based on existingparagraph363(1)(d) (and the identical provision atparagraph427(1)(d), for Part7 reviewable decisions) toempower the Tribunal to require investigations or medicalexaminations that are necessary for a review to be conducted andreports to be provided.
598. Subsection353(2) makes clear that this power of the Tribunalprovided in the MigrationAct is in addition to other powersof the Tribunal contained in the ARTBill, subject to anycontrary provisions in the MigrationAct.
599. The Tribunal’s powers under this section to investigate anapplicant’s claims are discretionary. They do not impose uponthe Tribunal a general duty to make such enquiries.
Item149: Division 5 of Part 5 (heading)
Updating heading
600. This item amends the heading of what is now Division 4 to reflectthe restructure of Part 5 to incorporate provisions relating toreviewable protection decisions, and the repeal of Part7 byitem228.
Items149A, 149B, 150 and 151: Subsection 357A(1),Subsection 357A(2), after Subsection357A(2)
601. Existing Division5 of Part5, along withsections375, 375A and376, and Division8A (asapplicable to Division5) of the MigrationAct,constitute an exhaustive statement of the requirements of thenatural justice hearing rule in relation to the matters they dealwith. The MigrationAct will continue to contain an exhaustivestatement of the natural justice hearing rule (‘exhaustivestatement’). However, its scope will be adjusted. The reformas a whole is intended to enhance the Tribunal’s ability toefficiently and effectively manage the high volume of reviewablemigration and protection decisions while providing fairness togenuine applicants.
602. Key features of the exhaustive statement of the natural justicehearing rule include:
· providing certainty and clarity by requiring certain informationthat the Tribunal considers would be the reason, or part of thereason, for affirming the decision under the review to be put tothe applicant for comment (section359A)
· providing access to written material, or a copy of any writtenmaterial, to the applicant upon request (section362A)
· enabling applications for reviews of decisions made in relation tothe same person to be combined (section363)
· prohibiting examination and cross-examination of any personappearing before the Tribunal(section 366D)
· requiring reviews of certain bridging visa decisions to becompleted within a prescribed period (section367)
· requiring the Tribunal to draw a negative inference if theapplicant raises a new claim on review without a reasonableexplanation as to why the claim was not raised before the primarydecision was made (section367A)
· requiring reviews of reviewable protection decisions to be heard inprivate (section367B)
· limiting the disclosure of information and documents, where theMinister has certified their disclosure would be contrary to thepublic interest (sections375, 375A and 376), and
· providing clarity and certainty by codifying how documents must beprovided to persons other than the Secretary (Division 7).
603. The requirements provide a clear framework for when the Tribunalmust provide information to the applicant before proceeding to adecision, facilitating the effective and efficient management ofreviewable migration and protection decisions. They apply to theexclusion of the common law natural justice rule, so that theTribunal and parties have certainty that they comprise anexhaustive statement in relation to these requirements.
604. The exhaustive statement of the natural justice hearing rule doesnot apply to all aspects of a Tribunal review. This is to enablethe Tribunal to exercise a broader range of powers and proceduresto resolve matters efficiently and effectively. Powers in the ARTBill such as those relating to issuing directions, holdingdirections hearings, case conferencing, withdrawal and dismissal ofmatters will be available in these reviews.
605. Subsection 357A(1) is amended so that it provides that the‘relevant provisions’ (rather than ‘thisDivision’) are taken to be an exhaustive statement of therequirements of the natural justice hearing rule in relation to thematters ‘they deal’ with. New subsection 357A(2D)provides that the ‘relevant provisions’ for thispurpose are:
· Division 4, and
· sections 374, 375, 375A and 376 and Division 7, in so far as theyrelate to Division 4.
606. Subsection(2) is repealed, because 357A(1) as amended and newsubsection357A(2D) make it unnecessary.
607. New subsection(2A) clarifies that, if there is anyinconsistency between the relevant provisions and any of thefollowing provisions in the ARTBill, this relevant provisionsprevail to the extent of the inconsistency:
· clause49, which provides the Tribunal has discretion as tohow it conducts proceedings
· clause50, which provides the Tribunal must conductproceedings with as little formality and technicality as a properconsideration of the matters before it permits
· clause53, which provides the Tribunal may determine the scopeof the review, and
· clause55, which requires the Tribunal to ensure that eachparty is given reasonable opportunity to present their case.
608. New subsection 357A(2A) makes clear that these provisions in theART Bill only apply to the extent that they are able to operateconsistently with the specific approach outlined in the MigrationAct. The specific parts of the ART Bill that are disapplied reflectthe matters which may interact with the elements of the exhaustivestatement.
609. A note at the end of subsection357A(2A) refers readers to newsubsection336P(1), inserted by item120, on theinteraction between the MigrationAct and theARTBill.
610. New subsection357A(2B) disapplies paragraph55(1)(b) ofthe ARTBill for the purposes of the exhaustive statement. Theeffect of this is that the Tribunal is not required to provide theapplicant to a proceeding a reasonable opportunity to accessinformation or documents to which the Tribunal proposes to haveregard in reaching a decision in the proceeding. This is becausethose requirements are comprehensively set out in the MigrationAct, as amended by this schedule.
611. Subsection 357A(2C) provides that, as an exhaustive statement ofthe requirements of the natural justice hearing rule, the relevantprovisions do not require the Tribunal to observe any principle orrule of common law relating to the matters the relevant provisionsdeal with.
Item152: Subsection357A(3)
Terminology changes
612. This item amends terminology. See explanation of generalterminology changes above.
Item153: After subsection358 to 359AA
Repealing provisions no longer necessary
613. This item repeals sections358, 359 and359AA. Existingsection358 provides for documents that may be given to theTribunal by an applicant. Existing section359 permits theTribunal to obtain additional information. These sections have beenrepealed, and the Tribunal’s general powers and procedures(other than those the Migration Act provisions disapply, applyinstead of or apply contrary to), will apply in relation to thesematters. This includes clause79 (Tribunal may give directionsin relation to procedure for proceeding) of the ARTBill,which now apply during the review of migration and protectiondecisions.
614. Existing section359AA provides for the giving of theinformation in the manner the Tribunal considers most appropriatein the circ*mstances, whether it be in writing or orally. Therepeal of section359AA is intended to make the requirementsrelating to conduct of the review on the Tribunal lessprescriptive, facilitating the effective and efficient managementof migration reviews.
Item154: Section359A (heading)
Updating heading
615. This item replaces the reference to ‘Tribunal’ toclarify the sectionapplies in relation to the actions anddecisions of the ART. The reference to ‘in writing’ isomitted as new section359A applies to the giving ofinformation both in writing and orally by the ART.
Items 155 and 156:Subsection359A(1), Paragraph 359A(1)(a)
Updatinglegislative references
616. These items provide updates consequential to the repeal ofsubsection359A(3) by item159, and replace references to‘Tribunal’ to clarify section359A applies inrelation to the actions of the Tribunal.
Item157: Paragraph359A(1)(c)
Repealingprovisions no longer necessary
617. Section359A is an exhaustive statement of the requirements ofthe natural justice hearing rule in relation to how the Tribunalgives information to an applicant and allows them to comment on it.The section covers information that the Tribunal considers would bethe reason, or a part of the reason, for affirming the decisionunder review. As provided for by 357A(2C) (inserted byitem151 of this Schedule), the Tribunal is not required toobserve any principle or rule of common law relating to the matterscovered by this section.
618. The omission of ‘or respond to’ is intended to clarifythe operation of the section. This amendment makes clear thatcomments, including considered remarks or observations are invitedand required, not merely a non-engaging answer or reply to theinformation in the invitation.
619. Noting that section359C (which would have allowed the AAT toproceed to a decision once an applicant had had the opportunity to‘comment or respond’) will be repealed byitem163, once the Tribunal has provided the information tothe applicant with the opportunity to comment, the Tribunal’sordinary procedures for managing a proceeding would apply. Where aparty has received information in accordance with this section, theTribunal is not required to take any other steps to advise theapplicant of the case against them.
620. The amendment will clarify that the Tribunal may proceed with thereview if the applicant does not reply to the invitation, orreplies in a way that does not substantively engage with the issuescontained in the information put to them in the invitation.
Item158:Subsection359A(2)
Information and invitation given by ART
621. This item amends subsection359A(2) to provide that if theinformation and invitation is given in writing, it must be givenusing a method specified in the subsection. The intention is thatthe information and invitation required in subsection359A(1)may be given in writing or orally, and the subsection only appliesif it is given in writing.
Item159:Subsection359A(3)
Repealingprovisions no longer necessary
622. This item repeals subsection359A(3) and is consequential tothe repeal of section359AA.
Item160: At the end of subsection359A(4)
Insert paragraphs
623. This item inserts new paragraphs to provide that theTribunal’s obligations to provide information as set out inthis section do not apply to information set out inparagraph(d), or such further types as may be specified inthe regulations. New paragraph359A(4)(d) refers toinformation ‘that was included, or referred to, in thewritten statement of the decision that is under review’.
624. This paragraph provides that the Tribunal is not required to giveto the applicant information that was included or referred to inthe written statement of the decision that is under review, even ifthe information is information that the Tribunal considers would bethe reason, or part of the reason, for affirming the decision underreview. As applicants are provided with written statements ofdecisions under the MigrationAct, it is reasonable that theyare aware of its contents without requiring the Tribunal toproactively draw matters to their attention.
Item161: Aftersubsection359A(4)
Insertsubsection
625. This item inserts new subsection359A(4A) which provides thatthe Tribunal is not required to give particulars of informationmentioned in subsection359A(4) before making a decision underclause105 of the ART Bill (Tribunal decision on review ofreviewable decision) or section 349 (Remittal, inserted by item136). This clarifies that the Tribunal is not required to give theinformation covered by subsection(4) to the applicant andallow comment before it makes a final decision on the application(whether or not the decision is to affirm the decision underreview).This is intended to put it beyond doubt that the Tribunalis not required to put information covered insubsection359A(4) to the applicant, at all before making itsdecision. This provision is intended to exhaustively displace thecommon law rules of the natural justice hearing rule in relation tothis matter.
Item162: Subsection359A(5)
Updating legislative references
626. This item updates the reference to subsection 362B(1F), which isrepealed by item166, so that it refers tosubsection368C(6), which is inserted by item 171. Theamendment is technical in nature, and ensures thatsubsection359A(5) continues to operate in substantively thesame way in the Tribunal.
Item163: Sections359Bto 362
Repealingprovisions no longer necessary
627. This item repeals sections359B to 362. These existingsections contain substantive procedural requirements which formcomponents of the exhaustive statement of the natural justicehearing rule. These requirements are being repealed to enable theTribunal to undertake a flexible conduct of review, proportionateto the matters before it. Instead of requiring the Tribunal tocomply with the procedures set out in these provisions, thestandard powers and procedures set out in the ART Bill willapply.
Items164 and 164A: Subsection362A(1), afterSubsection 362A(1)
Repeal and substitute subsection
628. These items amend currentsection 362A, which provides that anapplicant is entitled to have access to any written material, or acopy of any written material, given or produced to the Tribunal forthe purposes of the review.
629. New subsection362A(1) provides the applicant is entitled torequest the Department provide access to any written material, or acopy of any written material, given or produced by the Departmentto the Tribunal for the purposes of the review.
630. Rather than requests being made to the Tribunal, applicants will beable to request the Department to provide a copy of the writtenmaterial it gave or produced to the Tribunal for the purposes ofthe review.
631. New subsection 362A(1A) provides that, if an applicant makes arequest under subsection 362A(1), the Department must provide theapplicant with access to the material.
632. Currently, there is no equivalent to section362A in Part 7.This amendment will enable applicants in proceedings relating to aprotection review decision to request the Department to provide acopy of the written material it gave or produced to the Tribunalfor the purposes of the review, because it is not limited toproceedings related to migration review decisions.
Item165:Subsection362A(3)
Terminologychanges
633. This item replaces the reference to ‘Tribunal’ toclarify the sectionapplies in relation to the actions anddecisions of the ART.
Item166: Sections362Band 362C
Repealingprovisions no longer necessary
634. This item repeals sections362B and 362C. Existingsection362B deals with the failure of an applicant to appearat a scheduled hearing. It provides a procedure for dismissal, andreinstatement, of matters in circ*mstances where an applicant failsto appear. Current section362C contains proceduralrequirements where the Tribunal makes a‘non-appearance’ decision.
635. These provisions are no longer required because the Tribunal maydismiss an application if the applicant fails to appear at a caseevent under clause99 of the ART Bill. This provision willapply to reviews of reviewable migration and protection decisions.Procedural requirements for certain dismissal decisions will be setout in new sections368B and 368C.
Item167:Section363
Repeal andsubstitute section
636. This item repeals section363 to reflect powers of theTribunal that are set out in the ART Bill:
· subparagraph 363(1)(a) and subsection363(3) are no longernecessary, as clauses74 and76 of the ART Bill providefor the Tribunal to summon a person to give information or producedocuments, and to take evidence on oath or affirmation
· subparagraph363(1)(b) is no longer necessary, asclause82 of the ART Bill enables the Tribunal to adjournproceedings from time to time
· subparagraph363(1)(c) is no longer necessary, asclauses290 and291 of the ART Bill set out thearrangements for the giving of documents by the Tribunal, asadjusted by Divisions 5 and 7 of the MigrationAct
· subparagraph363(1)(d) is relocated to section353, byitem148
· subsection363(4) is no longer necessary, as clause 75 of theART Bill permits the Tribunal to take evidence, including on oathor by affirmation, inside or outside Australia.
Reviews may be combined
637. Existing subsection363(2) is retained and combined with theidentical provision at sub section427(2) for Part 7reviewable decisions. This power allows the ART to combine multipleproperly made review applications in respect of the one individualin a single review.
Item168: Sections363Ato 366C
Repealingprovisions no longer necessary
638. This item repeals these sections.
639. Repeal of existing section363A reflects that the Tribunal mayprogress a review in accordance with the ART Bill, subject to anycontrary provisions in this schedule.
640. Section364 (Tribunal’s power to take evidence) isrepealed, with the Tribunal’s standard power underclause75 of the ART Bill to applying.
641. Section365 (Review to be in public) is repealed, with theTribunal’s standard provisions under clauses69 of theART Bill to applying, subject to item 170 which requires theTribunal to hold reviewable protection decision hearings inprivate.
642. Section366 (Oral evidence by telephone etc.) is repealed andis no longer necessary. The ART Bill supports in-person and virtualparticipation in Tribunal case events, hearings and otheractivities.
643. Section366A (Applicant may be assisted by another personwhile appearing before Tribunal) and Section366B (Otherpersons not to be assisted or represented while appearing beforeTribunal) is repealed, with the Tribunal’s ordinary powersfor managing the representation and assistance of parties (set outin Subdivision B of Division 5 of the ART Bill) applying.
644. Section366C (Interpreters) is repealed in the Migration Act,with the equivalent provision in clause68 of the ART Billapplying.
Item168A: Subsections 366D
Terminology changes
645. This item amends terminology. See explanation of generalterminology changes above.
Item169: Subsections 367(1) and (2)
Terminology changes
646. This item amends terminology. See explanation of generalterminology changes above.
Item170: At the end of Part 5 of Division 5
Insert sections
647. This item inserts new sections367A and 367B to replaceexisting sections423A and429 respectively. Theseamendments are consequential to the harmonisation of Parts 5 and7.
648. The new section367A replicates the effect of existing section423A of the Migration Act in relation to how the Tribunal is todeal with new claims or evidence in reviews of a reviewableprotection decision. This section is connected to the operation ofsection5AAA of the Migration Act, which requires non-citizensto provide and substantiate claims on which they are seekingprotection. New section367A complements this responsibility,and requires the Tribunal to draw an inference unfavourable to thecredibility of new claims or evidence provided to the Tribunal ifthe applicant does not have a reasonable explanation to justify whythe claims were not raised or the evidence was not presented beforethe primary decision was made on their protection visaapplication.
649. Section 367A is intended to ensure that applicants raise all claimsrelevant to their visa application, and present all evidence,upfront, to ensure that the decision made by the Department of HomeAffairs can be as efficient and effective as possible.
650. New section367B replicates the effect of existing section 429of the Migration Act, which requires hearings in reviewableprotection decision proceedings to be held in private (displacingclause69 of the ART Bill). A note follows to clarify thatclause69 of the ART Bill, which provides that hearings aregenerally to be in public, applies to reviewable migration decisionproceedings. It is appropriate, and necessary, given the nature ofprotection claims that they are heard in private to protect theidentity and safety of the review applicant and any family membersor friends who may have remained in the country from which thereview applicant has claimed fear of persecution or harm.
Item171: Division 6 of Part 5
Division 5 - ART decisions
651. This item repeals all of existing Division 6—Part5-reviewable decisions: Tribunal decisions, and substitutesit with the new Division 5—ART decisions. The new Division 5reflects the restructure of Part5 to incorporate provisionsrelating to reviewable protection decisions, and the repeal ofPart7 by item228.
652. Each sectionin this Division refers to the equivalent orrelevant provisions of the ART Bill to indicate where provisionsapply instead of, in addition to, or contrary to those provisions.The new Division 5 of Part 5 applies to a review of a reviewablemigration or protection decision by the ART.
Section 368 - ART’s decision andwritten statement etc.
653. New section368 specifies how the Tribunal’s decision isto be made, with certain requirements on what must be included. Itretains elements of existing sections368 and430,including: the requirement to make a written statement, the contentrequirements of the written statement, that a decision (once made)cannot be changed, when a decision is taken to be made andproviding that the validity of a decision on a review is notaffected by procedural irregularities. Requirements to include thedate and time of written statements, and make a record of the dateand time when oral decisions are made are also being retained. Theretention of those elements provides certainty about when theTribunal decision is final - in particular newsubsections368(5), (6) and (7). That certainty is necessaryto ensure it is clear when an application is ‘finallydetermined’ under the Migration Act.
654. New subsections368(3) and368(4) retain the effect ofexisting section368D which allows the Tribunal to give anoral decision before providing the written statement. The time ofthe decision is the time and day that the oral decision isgiven.
655. New subsection368(8) retains the effect ofsubsections368(4) and 430(4), preserving the validity ofTribunal decisions, notwithstanding deficiencies in recording thetime and day the decision was made.
656. New subsection368(9) provides that new section368applies despite clauses111 (notice of decision and statementof reasons—review of reviewable decision) and112(notice of decision and statement of reasons—otherproceedings) of the ART Bill. The Migration Act provisions prevailas they provide the heightened requirements around the time anddate of decisions, which are essential to meet the need forcertainty about when a decision on a review of these decisions isfinal for a migration review decision or a protection reviewdecision.
Section 368A - Notification ofART’s decision
657. New section368A specifies how parties are to be notified ofthe Tribunal’s decision. It replaces currentsections368A, paragraph 368D(2)(b) andsubsection368D(4) as well as current Part7 equivalentsections (sections430D(2)(b) and(4)).
658. The new sectionretains elements of the existing provisionsincluding that the review applicant and the Secretary must benotified of the Tribunal’s decision by giving them a copy ofthe written statement made under subsection368(1)within14days after the day on which the decision istaken to have been made and that the validity of the decision on areview will not be impacted by any failure to comply withsection368A.
659. Subsections 368D(4) and 430D(4) are not retained, as newsubsection368(1) requires a written statement to always beprovided for a decision on a review of a migration review decisionor a protection review decision. The applicant will not need torequest a written statement as currently provided under theseprovisions.
660. New subsection368A(5) provides that new section 368A appliesdespite subclause111(3) and clause112 of the ART Bill.The effect of this is to shorten the timeframe in whichnotification must be given (14days in the Migration Act, asopposed to 28days under the ART Bill).
Section 368B - Notice of dismissal andreinstatement decisions and when taken to have been made
661. New section368B of the Migration Act provides the requirementfor the Tribunal to notify parties of a decision to dismiss anapplication for review of a migration and protection reviewabledecision under the ART Bill or to reinstate, or not reinstate, anapplication for review of a migration and protection reviewabledecision under new section368C.
662. Subsection(2) provides that the Tribunal must make a writtenstatement of its decision setting out the day and time the decisionis made.
663. Subsection (3) provides that the decision is taken to have beenmade at the time and on the day the written statement was made.Subsection (4) provides that the Tribunal cannot vary or revoke thestatement once it has been made.
664. Subsections (5) and (6) require that the written statement must begiven to the applicant and Secretary within 14days after itis taken to have been made.
665. Subsection (7) provides that the validity of the decision is notaffected by any procedural irregularities in the written statementor provision of notice.
666. Subsection (8) provides that section368B applies despiteclause112 of the ART Act. The effect of this is to shortenthe timeframe in which notification must be given (14days inthe Migration Act, as opposed to 28days under the ARTBill).
Section 368C - Reinstatement ofapplication or confirmation of dismissal
667. New Section368C sets out the reinstatement powers andprocedures for dismissals of applications relating to reviewablemigration or protection decisions. The requirements are broadlyreplicated from existing sections362B and 426A, with updatedterminology and references to the relevant provisions in the ARTBill.
668. This section applies instead of clause102 of the ART Bill(subclause(1)). This is to ensure that the reinstatementpowers operate consistently with the relevant visa frameworks.
669. If the Tribunal dismisses an application for review, the applicantmay apply for reinstatement of the application within 28daysof being notified of the dismissal (subclause(2)).
670. The types of Tribunal dismissal decisions for which a reinstatementapplication may be made are those made under:
· clause 99 of the ART Bill for reason of the applicant’snon-appearance (based on existing section362B of theMigration Act)
· clause 100 of the ART Bill on the basis of the applicant failing toproceed with the application or comply with an order of theTribunal, and
· clause 101 of the ART Bill where the Tribunal is satisfied that theapplication is frivolous, vexatious, misconceived or lacking insubstances.
671. Subsection368C(2) reflects a policy change to adopt thestandard 28-day period after receiving the dismissal noticefor an applicant to seek a reinstatement. This is a stricttimeframe and cannot be extended. This is to ensure the proceduresfor reinstatement operate consistently with the ‘finallydetermined’ framework and support clarity in relation to aperson’s visa status.
672. Consistent with the note following existingsubsection362B(1B), the note under subsection(2) refersreaders to section379C setting out when a person is taken tohave received a document from the Tribunal for the purposes of thisPart.
673. Subsections368C(3) to (7) are based on existingsubsections362B(1C) to (1G), and they are replicated withsome minor simplification of language, updated terminology andcross-references, and to reflect the 28-day period for seekingreinstatement. The Tribunal, on application for reinstatement undersubsection(2), must decide whether to reinstate theapplication or confirm the dismissal (subclause (3)). If theTribunal reinstates the application, it is taken to never have beendismissed (subclause (4)). If no application for reinstatement hasbeen received within 28 days, the Tribunal must confirm thedismissal (subclause (5)). The decision under review is taken to beaffirmed if the Tribunal confirms the dismissal (subclause(6)).
Section 369 - Identity information not to bepublished
674. Section369 replicates existing section431 with updatedterminology and alters clause113 of the ART Bill, to clarifythat the Tribunal is not to publish information relating toreviewable protection decisions which may identify an applicant,their relatives or dependants. It is appropriate, and necessary,given the nature of protection claims to protect the identity andsafety of the review applicant and any family members or friendswho may have remained in the country from which the reviewapplicant has claimed fear of persecution or harm.
Item172: Division 7 of Part 5
Repealing provisions no longer necessary
675. This item repeals Division7, allowing the standardarrangements under clauses 115 and 116 of the ART Bill to apply foroffences and penalties relating to a failure to comply withsummons, and refusal to take an oath or affirmation or to answerquestions.
Item173: Division 8 of Part 5 (heading)
Updating heading
676. This item amends the heading of what is now Division 6 to reflectthe restructure of Part5 to incorporate provisions relatingto reviewable protection decisions, and the repeal of Part7by item228.
Item174: Before section375
Insert section
677. This item adds new section 374 to Division 6 of Part 5.
678. Section374 sets out notification requirements for Tribunalcase events and directions in a proceeding for review of reviewablemigration or protection decision.
679. Subsection374(1) provides that, where the Tribunal giveswritten notice to the applicant of a case eventundersubclause72(1) of the ART Bill, it must do so by amethod in section379A, or, if the applicant is in immigrationdetention, as prescribed in the regulations. Tribunal case eventsinclude hearings, directions hearings and dispute resolutionprocesses (as defined in clause4 of the ART Bill).
680. Subsection374(2) sets out the same requirements for giving tothe applicant Tribunal directions in relation to the procedure tobe followed for a review proceeding. That is, it must give thedirection in writing to the applicant by a method insection379A, or, if the applicant is in immigrationdetention, as prescribed in the regulations. The kinds ofdirections that the Tribunal can make are set out in subclauses79(2) to (4) of the ART Bill. For example, a direction order mayrequire the applicant to give information or documents, to give astatement of matters or contentions, or the direction may limit thegiving of evidence or the making of submissions.
681. This section ensures applicants are informed of upcoming Tribunalcase events and proceeding procedures. The specified notificationmethods give applicants consistent opportunity to attend the eventsand to meet direction orders for a proceeding. Under the ART Bill,an application for review may be dismissed if the applicant failsto attend a case event. The Tribunal must be satisfied beforedismissing an application for failure to appear that the applicantreceived appropriate notice of the case event. This section setsout what appropriate notice constitutes in the context ofproceedings for review of reviewable migration and protectiondecisions.
Item175: Section375
Restrictions on disclosure of certaininformation
682. The sectionis taken to be an exhaustive statement of therequirements of the natural justice hearing rule in relation to thematters that the sectiondeals with, in accordance withsubsection357A(2). The section prohibits the Secretary fromgiving a document or information, if the Minister has certifiedthat its disclosure would be contrary to the public interest.
683. This item amends the sectionto ensure that thissectionon disclosure restrictions takes precedence over theART Bill, as well as other provisions in the Migration Act. Thatis, it applies despite anything in the ART Bill or the MigrationAct.
Item176: Section375
Terminology changes
684. This item replaces the reference to the ‘Tribunal’ tothe ‘ART’ so that the provision continues to apply inthe same way in relation to the new Tribunal. See explanation ofgeneral terminology changes above.
Items 177 and 178: Section375A (heading),Paragraph375A(1)(a) and (b)
Terminology changes
685. Section375A sets out that certain information may bedisclosed to the Tribunal. The sectionis taken to be anexhaustive statement of the requirements of the natural justicehearing rule in relation to the matters that the section dealswith, in accordance with subsection357A(2).
686. These items amend terminology. See explanation of generalterminology changes above.
Items 179 and 180: Subsection375A(2)
Updating subsection
687. These items amend subsection375A(2) to recognise that theSecretary may be required under the ART Bill (as well as under aprovision in this Act) to provide a document or information to theTribunal. The Secretary is required to notify the Tribunal that thedocument or information is of the type specified insubsection375A(1), and the Tribunal must ensure thedisclosure of that document or information is limited to members ofthe Tribunal as constituted for the purposes of the review.
688. These items also amend terminology. See explanation ofgeneral terminology changes above.
Item181: Paragraph 375A(2)(a)
Terminology changes
689. This item amends terminology. See explanation of generalterminology changes above.
Item182: Paragraph 375A(2)(b)
Terminology changes
690. This item amends terminology. See explanation of generalterminology changes above.
Items 183 and 184: Section376 (heading),Subparagraph376(1)(a)(ii)
Terminology changes
691. This item amends terminology. See explanation of generalterminology changes above.
Item185: Subsection376(2)
Updating subsection
692. This item amends subsection(2) to recognise that theSecretary may be required under the ART Bill (as well as under aprovision in this Act) to provide a document or information to theTribunal, as some procedures in the ART Bill will apply in relationto reviews of reviewable migration and protection decisions. TheSecretary is required to notify the Tribunal that the document orinformation is of the type specified in subsection(1), andmay advise the Tribunal of its significance.
693. Section376 is taken to be an exhaustive statement of therequirements of the natural justice hearing rule in relation to thematters that the sectiondeals with, in accordance withsubsection357A(2).
Items 186 and 187: Subsection376(2),Subsection376(3)
Terminology changes
694. These items amend terminology. See explanation of generalterminology changes above.
Item188: Section378
Repeal and substitute section
695. This provision is replaced as the existing section378 is nolonger necessary. Clause70 of the ART Bill will apply toallow the Tribunal to restrict the publication or disclosure ofinformation after considering the relevant principles inclause71 of the ART Bill.
Section 378 - Protected information anddocuments
696. This item repeals and replaces section378. It applies despiteclause274 of the ART Bill (Protected information anddocuments), to extend the restrictions on the production ordisclosure of documents or information, to include production ordisclosure to a parliament. The sectionrelies on thedefinitions of entrusted person, protected document and protectedinformation in the ART Bill. The intent is to provide additionalprotection to the privacy and safety of persons involved inreviewable protection decisions.
Item189: Division 8A of Part 5 (heading)
Updating heading
697. This item amends the heading of what is now Division 7 to reflectthe restructure of Part5 to incorporate provisions relatingto reviewable protection decisions, and the repeal of Part7by item228.
698. This Division, in so far as it relates to new Division 4 of Part 5,is taken to be an exhaustive statement of the requirements of thenatural justice hearing rule in relation to the matters that itdeals with, in accordance with subsection357A(2).
Item190: Section379AA (heading)
Updated heading
699. This item changes the heading to clarify that it applies inrelation to the actions of the ART, and omits pinpoint referenceswithin the Act to reflect modern drafting practices.
Item191: Paragraph379AA(1)(a)
Requirements on the Tribunal givingdocuments
700. Section379AA applies to documents given to a person bythe Tribunal, as required or permitted by a provision in theMigration Act or Migration Regulations. This item amendsparagraph379AA(1)(a) to update the terminology, and torecognise that the Tribunal may also be required or permitted undera provision of the ART Bill, as altered by the Migration Act, togive a document to a person.
701. Where the method of giving the document is not specified, theTribunal may give that document to the person by any method that itconsiders appropriate, which may be one of the methods mentioned insubparagraphs 379AA(1)(b)(i) or (ii), being a method specified insection 379A or a method prescribed for the purposes of givingdocuments to a person in immigration detention.
702. If the Tribunal gives a document by a method prescribed in section379A, section379C is invoked to determine the time when thedocument is taken to have been received .
Item192: Paragraph379AA(1)(a)
Giving documents by the Tribunal
703. This item amends the paragraph to clarify thatsubsection379AA applies to the giving of documents by theTribunal to persons other than the Secretary. A similar change ismade to section379A by item200. These changes giveeffect to the intent for the Migration Act to set out how theTribunal gives documents to a person, while the standard proceduresin the ART Bill (including practice directions) will apply inrelation to the giving of documents by the ART to the Secretary(see items196, 215 and 219).
Item193: Subparagraph379AA(1)(b)(i)
Repealing provisions no longer necessary
704. This item is consequential to the repeal of section379B byitem215 and removes the reference to section379B.
Item194: Subsection379AA(1)
Terminology changes
705. This item amends terminology. See explanation of generalterminology changes above.
Item195: Subsection379AA(1) (note 2)
Terminology changes
706. This item amends terminology. See explanation of generalterminology changes above.
Item196: At the end of subsection379AA(1)
Insert note 3
707. This item inserts a new note to clarify that practice directionsapply to the requirements for giving documents to the Secretary.Clause36 of the ART Bill enables the President to makepractice directions on matters such as the operations andprocedures of the Tribunal.
Items197 and 198: Subsection379AA(2) andsubsection379AA(3)
Terminology changes
708. This item amends terminology. See explanation of generalterminology changes above.
Item199: At the end of section379AA
Insert subsection and note
709. This item inserts a new subsection extending the operation ofsubsection379AA(1) to provisions in the ART Bill which enablethe Tribunal to make an order. In effect, this means that if theTribunal makes an order under a provision in the ART Bill, theTribunal may give to a person a document that is a written recordof the order. The Tribunal may give that document to the person byany method that it considers appropriate, which may be one of themethods mentioned in subparagraphs 379AA(1)(b)(i) or (ii), andthereby ensuring the deemed receipt provisions in section 379C ofthe Migration Act and the Migration Regulations apply.
Item200: Section379A (heading)
Methods by which Tribunal gives documents toa person
710. This item changes the heading with a terminology update and removeswording that is no longer necessary.
711. These changes give effect to the intent for the Migration Act toset out how the Tribunal gives documents to a person, while thestandard procedures in the ART Bill (including practice directions)will apply in relation to the giving of documents by the Tribunalto the Secretary (see items196, 215 and 219).
Items 201, 202 and 203: Paragraph379A(1)(a),paragraph379A(1)(b), subsection379A(1A)
Terminology changes
712. This item amends terminology. See explanation of generalterminology changes above.
Item204: Paragraph379A(1A)(b)
Terminology changes
713. This provision updates terminology consequential to amendments madeby item122, which repeal the definitions of‘member’ and ‘officer of the Tribunal’, anditem4, which insert the new defined terms ART member and ARTPrincipal Registrar to reflect the organisation structure of theTribunal.
714. The subsectionclarifies that besides an ART member and ARTPrincipal Registrar, a member of the staff of the Tribunal may alsodecide that an individual can be given the documents in place of aminor.
715. This item introduces ‘ART official’ as a collectiveterm to simplify referencing.
Item205: Subsection379A(1A) (note)
Terminology changes
716. This item amends terminology. See explanation of generalterminology changes above.
Item206: Subsections379A(2) and (3)
Terminology changes
717. This item makes changes consequential to amendments made byitem122, which repeals the definitions of‘member’ and ‘officer of the Tribunal’. Theprovisions as amended reflect the organisational structure of theTribunal, and allow an ART official (as defined at item204)or a person authorised by the ART Principal Registrar to hand thedocument to the recipient or another person as specified.
718. Clause282 of the ART Bill sets out that an authorised personmust comply with any direction given by the President, inperforming or exercising a function or power of the Tribunal.
Item207: Paragraph379A(3)(a)
Terminology changes
719. This item amends terminology. See explanation of generalterminology changes above.
Item208: Subsection379A(4)
Terminology changes
720. This item makes changes consequential to amendments made byitem122 which repeal the definitions of ‘member’and ‘officer of the Tribunal’. The change allows an ARTofficial (as defined at item204) to date and dispatch thedocument to the recipient as specified.
Item209: Subparagraphs379A(4)(c)(i) and (ii)
Terminology changes
721. This item amends terminology. See explanation of generalterminology changes above.
Items 210 and 211: Subparagraph379A(4)(c)(iii) andsubsection379A(5)
Terminology changes
722. These items make changes consequential to amendments made byitem122 which repeals the definitions of ‘member’and ‘officer of the Tribunal’. The amended provisionsallow the document to be dispatched to the last address for a carerof theminor known by an ART official (as described atitem204), and allow an ART official to transmit the documentby fax, email or other electronic means as specified.
Item212: Paragraph379A(5)(d)
Terminology changes
723. This item amends terminology. See explanation of generalterminology changes above.
Item213: Paragraph379A(5)(e)
Terminology changes
724. This item makes changes consequential to amendments made byitem122 which repeal the definitions of ‘member’and ‘officer of the Tribunal’, and allows the documentto be transmitted to the last fax number, email address or otherelectronic address, as the case may be, for a carer oftheminor,that is known by an ART official (as describedat item204).
Item214: Subsection379A(6)
Terminology changes
725. This item amends terminology. See explanation of generalterminology changes above.
Item215: Section379B
Standard Tribunal procedures to apply
726. This item repeals the existing section379B which provides forhow the Tribunal is to give documents to the Secretary of HomeAffairs. The effect of repealing this provision is that thestandard procedures for giving documents to a decision-maker underthe ART Bill (that is, clause291 will apply instead).
Items 216, 217 and 218: Section379C (heading),subsections379C(1) to (5), and Subsection379C(7)
Terminology changes
727. These items amend terminology. See explanation of generalterminology changes above.
Item219: Section379D
Standard Tribunal procedures to apply
728. This item repeals the existing section 379D which provides for whenthe Secretary of Home Affairs is taken to have received a documentfrom the Tribunal when using a method specified in the currentsection 379B. This provision is no longer necessary consequentialto the repeal of section 379B (see item 215).
Items 220 and 221: Section379EA (heading),Section379EA (note 1)
Terminology changes
729. These items amend terminology. See explanation of generalterminology changes above.
Item222: Section379F
Standard Tribunal procedures to apply
730. This item repeals the existing section379F which sets outthat a person is to give a document or a thing to the Tribunal bygiving the document or thing to an officer of the Tribunal, or inaccordance with the President’s directions in the AAT Act orthe Migration Regulations. The effect of repealing this provisionis to provide for the standard procedures in clause290 of theART Bill for giving a document or thing to the Tribunal toapply.
Item223: Paragraph379G(1)(a)
Terminology change
731. This item amends terminology and is consequential to the repeal ofthe defined term ‘Part 5-reviewable decision’ by item10, and also reflects that Part 5 applies toreviews of areviewable migration decisions and reviewable protection decisionsby the Tribunal.
Items 224: Subsection379G(1)
Terminology changes
732. This item amends terminology. See explanation of generalterminology changes above.
Item225: Paragraph379G(1A)(a)
Updating legislative references
733. This item reflects the consolidation of Parts 5 and 7, and thatexisting section347 of the Migration Act has beenrestructured into 347 and 347A. The provision clarifies the intentthat subsection379G(1) of the Migration Act applies to anapplication for a review of a reviewable migration or protectiondecision that has not been properly made according to sections 347and 347A.
Item226: Paragraph 379G(1A)(b)
Updating legislative references
734. This item reflects that existing section347 of the MigrationAct has been restructured into 347 and 347A, and refers to a reviewapplication that has not been properly made according to either orboth of those sections. The effect of this section is that theTribunal is required to give documents to an authorised recipient,including notification that the review application was not properlymade.
Item227: Subsections379G(2) and (5)
Terminology changes
735. This item amends terminology. See explanation of generalterminology changes above.
Item228: Parts 7 and 7AA
Part 7 consolidated into revised Part 5, IAAabolished
736. This item repeals existing Parts 7 and 7AA of the Migration Act,which provided for the review of a Part 7-reviewable decision atthe AAT and fast track reviewable decisions at the IAA. Thesedecisions will now be reviewable in the Tribunal under Part5as a reviewable protection decision.
737. The harmonisation of the existing Parts 5 and 7 into the new Part 5reduces the duplication of provisions in the Migration Act tostreamline and simplify procedures for the Tribunal and itsusers.
Item229: Subsection474(2) (definition of privative clause decision )
Updating legislative references
738. This item inserts a reference to subsection474(4A) into thedefinition of ‘privative clause decision’ insubsection474(2) of the Migration Act. This amendment isrelated to item231, which inserts newsubsection474(4A).
739. Currently, under 474(2), a privative clause decision means adecision of an administrative character made, proposed to be made,or required to be made, as the case may be, under this Act or undera regulation or other instrument made under this Act (whether inthe exercise of a discretion or not), other than a decisionreferred to in subsection(4)or(5). Inserting thereference to subsection474(4A) into the definition means thatdecisions mentioned in subsection474(4A) are not‘privative clause decisions’.
Item230: Subsection474(4) (table items23 and28)
Repealing provisions no longer necessary
740. Subsection474(4) contains a table that sets out decisionsthat are not privative clause decisions. This item repeals existingtable items 23 (which refers to Division 7 ofPart5—Part 5-reviewable decisions: offences) and 28(which refers to Division 6 of Part7—Part-reviewabledecisions: offences) from the table. The repeal of these items isconsequential to the amendments made by items 172 and 228, whichrespectively repeal Division 7 of Part 5 and Part 7 (which containsDivision 6 of Part 7).
Item231: After subsection474(4)
Insert subsection
741. This item inserts new subsection474(4A) which provides that areferral to the Tribunal of a question of law is not a privativeclause decision. The addition of new subsections(4A) and (6)have the effect that referrals of questions of law by the Tribunalto the FCA (see, relevantly, paragraph 185(2)(b) of the ART Bill),are non-privative clause decisions. This is a technical amendmentrequired to enable the Tribunal to refer these questions to theFCA, without otherwise affecting the operation of provisionsgoverning the availability of judicial review of Tribunal decisionson review of reviewable migration and protection decisions. This,combined with clause185 of the ART Bill, will enable theTribunal to seek clarity from the FCA on questions of law inproceedings for review of reviewable migration and protectiondecisions.
Item232: Subsection474(5)
Non-privative clause decisions
742. This item inserts a reference to the ART Bill intosubsection474(5) of the MigrationAct. Inserting thereference will allow for the regulations to specify that adecision, or a decision included in a class of decisions, under theART Bill is not a privative clause decision. This allowsflexibility to specify ART Bill decisions to be a‘non-privative clause decisions’ for the purposesof Part 8 (see subsection474(6)).
Item233: Subsection474(6)
Updating legislative references
743. This item inserts a reference to new subsection474(4A) intosubsection474(6) of the MigrationAct. Inserting thereference to subsection474(4A) into subsection474(6)means that decisions mention in subsection474(4A) are‘non-privative clause decisions’ for the purposes ofPart 8. The intention is to differentiate decisions mentioned insubsection474(4A) from decisions mentioned insubsection474(4) in order to achieve the policy objective setout in item231. This item also removes the reference tosection 474 to reflect modern drafting practices and simplify thelanguage within sections.
Item234: Subsection474(6)
Update subsection
744. This item removes the reference to section474 of theMigration Act to reflect modern drafting practices and simplify thelanguage within sections.
Item235: Subsection474(7)
Update subsection
745. This item removes the reference to section474 of theMigration Act to reflect modern drafting practices and simplify thelanguage within sections.
Item236: Paragraph474(7)(a)
Repealing provisions no longer necessary
746. This item removes the reference to ‘417’ in paragraph474(7)(a) which is no longer required and consequential to therepeal of Part 7 (which contains section417) byitem228.
Item237: After Division 1 of Part 8
Division 1A - Interaction with the ARTAct
747. This item inserts a new Division 1A (Interaction with the ART Act),containing new section474AA.
748. New subsection474AA(1) replicates existing section43Cof the AATAct. It is intended to maintain current settings inrelation to appeals to the FCA (that is, that the only‘migration decisions’ in relation to which an appealunder clause172 of the ART Bill can be made to the FCA arenon-privative clause decisions (other than non-privative clausedecisions mentioned in new subsection474(4A)).
749. New subsection474AA(2) provides that despitesubsection(1), referrals under clause185 of the ARTBill (which is in Part 7 of the ART Bill) will be possible. Newparagraph 474AA(2)(b) provides that the Tribunal does not have aduty to consider a request to refer a question of law made by aparty to a proceeding. The intention is to enable the Tribunal torefer a question of law to the FCA on its own initiative or at therequest of a party to the proceeding. However, if a party requestsa referral, new subsection 474AA(2)(b) clarifies that, although theTribunal may consider the request, the Tribunal does not have aduty to consider the request. In other words, referrals underclause185 of the ARTBill will be possible at aparty’s request, but ultimately at the Tribunal’sdiscretion.
750. New subsection474AA(2A) provides that, if the Tribunal refersa question of law under clause185 of the ARTBill,whether at the request of a party or on its own initiative, theprovisions in the ARTBill in relation to sending anddisclosing documents (Division6 of Part7 of theARTBill) will apply.
Newsubsection474AA(3) provides that SubdivisionA ofDivision2 of Part7 of the ARTBill (appeals onquestions of law) does not apply to a decision of the Tribunalunder clause185 of the ARTBill (referring questions oflaw) in relation to proceedings for review of a reviewablemigration decision or a reviewable protection decision. Thisprevents referral decisions being appealed to the FCA. As anon-privative clause decision (see newsubsection474(4A)), referrals on questions of law wouldotherwise be captured by subsection474AA(1) of theMigrationAct. However, if the Tribunal refers a question oflaw to the FCA for decision under section 185 of the ARTBill,there is no need to appeal such a referral. Newsubsection474AA(3) ensures that SubdivisionA ofDivision2 of Part7 of the ARTBill (appeals onquestions of law) does not apply to non-privative clausedecisions as defined in new subsection474(4A) of theMigrationAct.
Item238: Section474A
Definition of ARTAct migration decision
751. This item repeals section 474A of the Migration Act, which sets outthe definition of AATAct migration decision, and substitutesnew section 474A which defines ARTAct migration decision ,incorporating updated terminology and reflecting the organisationalstructure of the Tribunal. These amendments are technical innature, and ensure that section474A continues to operate inthe same way in relation to the Tribunal decisions and the limitedjurisdiction of the FCA.
752. The existing AAT Act migration decisions table is replicated in newsubsection474A(2) and refers to the equivalent provisions ofthe ART Bill. The scope and substance of the section is otherwiseunchanged. That is, an appeal in relation to an ART Actmigration decision cannot be made to the Federal Court, asnoted in section476A of the Migration Act (as amended byitems 245 to 247).
Item239: Paragraph 476(2)(b)
Terminology changes
753. This item amends terminology. See explanation of generalterminology changes above.
Item240: Paragraph 476(2)(c)
754. This item provides that the FCFCOA (Division 2) will not havejurisdiction in relation to a non-privative clause decisionmentioned in subsection474(4A), inserted by item231,discussed above.
Item241: Subsection476(3)
Updating legislative references
755. This item updates legislative references, replacing a reference tothe AAT Act with a reference to the equivalent provision in the ARTBill, clause179. This amendment is technical in nature, andensures that the effect of section476 of the Migration Act onthe jurisdiction of the FCFCOA (Division2) in relation tonon-privative clause decisions upon transfer of appeals by the FCAcontinues to operate in substantively the same way.
Item242: Subsection476(4) (paragraph (a) of thedefinition of primary decision )
Updating legislative references
756. This item is consequential to the repeal of Part 7 byitem228, and clarifies that primary decision refers to theparticular decisions of the Tribunal on review by application underPart5 or section500. Review of a decision is sought byapplication under Part 5 or section500. New sections347and 347A in Part 5 of the Migration Act, inserted by item 136, setout the requirements for an application to the Tribunal for reviewof a reviewable migration decision or a reviewable protectiondecision. Once the application is made, the Tribunal conductsreview of decisions in accordance with provisions of the ART Bill,subject to any contrary provisions in the Migration Act.
757. This update does not affect the operation of the provision.
Items 243 and 244: Subsection476(4) (paragraph (b) of thedefinition of primary decision ), Paragraph 476(4)(c)
Repealing provisions no longer necessary
758. These items relate to the removal of paragraph (c) which is nolonger necessary consequential to the repeal of Part 7AA byitem228.
Item245: Paragraph 476A(1)(b)
Terminology changes
759. This item amends terminology. See explanation of generalterminology changes above.
Item246: Paragraph 476A(1)(d)
Updating legislative references
761. A migration decision is defined in the Migration Act tomean: a privative clause decision, a purported privative clausedecision, non-privative clause decision, or an AAT Actmigration decision. In relation to appeals , the FCA willhave jurisdiction in respect of non-privative clause decisions(other than non-privative clause decisions mentioned in subsection474(4A)) (see new subsections 474AA(1) and (3)). In relation to referrals , the FCA will have jurisdiction in relation to all decisions mentioned in the definition of migrationdecision (see newsubsection474AA(2)and474AA(4)).
Item247: Subsection476A(1) (note)
Terminology changes and updating legislativereferences
762. This item substitutes the note under subsection476A(1) of theMigrationAct. Paragraph476A(1)(d) (as amended byitem246) provides that the FCA has original jurisdiction inrelation to a migration decision if, and only if, the FCA hasjurisdiction in relation to the decision under clause176(Federal Court has jurisdiction) or subclause185(3)(referring questions of law) of the ARTBill.
763. The substituted note clarifies that the FCA’s jurisdictionreferred to in paragraph476A(1)(d) of the MigrationActis limited, for example, by section474AA.
Item248: Subsection477(3) (definition of date ofthe migration decision )
Updating definitions
764. Section477 sets out time limits on applications to the FCFCOA(Division 2), with reference to the date of the migrationdecision .
765. This item repeals and substitutes the definition, updatinglegislative references, replacing reference to the AAT Act withreference to the equivalent provision in the ART Bill,clause105.
766. Existing paragraph 477(3)(a) is retained with updates to covermigration decisions made under the ART Bill apart from those madein relation to an application under Part 5. Existing paragraphs477(3)(b) and (c) are combined in a new paragraph 477(3)(b) toreflect the consolidation of Part 5 and Part 7. Paragraph477(3)(ca) is no longer necessary consequential to the repeal ofPart 7AA by item228, while paragraph 477(3)(d) is replicatedunder new paragraph 477(3)(c).
Items 249, 250, 251, and 252: Paragraph 478(a), Paragraph478(aa) Paragraph 479(a), and Paragraph 479(aa)
Updating legislative references
767. These items are consequential to the repeal of Part 7 and Part 7AAby item228.
768. Paragraphs 478(a) and 479(a) are both replaced with updatedterminology. Review of a decision is sought by application underPart 5 or section500. New sections347 and 347A in Part5 of the Migration Act, inserted by item 136, set out therequirements for an application to the Tribunal for review of areviewable migration decision or a reviewable protection decision.Once the application is made, the Tribunal conducts review ofdecisions in accordance with provisions of the ART Bill, subject toany contrary provisions in the Migration Act.
769. Paragraphs 478(aa) and 479(aa) are no longer necessaryconsequential to the repeal of Part 7AA by item228, and aretherefore repealed.
770. These changes do not affect the operation of these provisions.
Item253: Subsection486D(5) (definition of tribunal decision )
Terminology changes and updating legislativereferences
772. The definition will continue to provide that tribunaldecision means a privative clause decision, or purportedprivative clause decision made on review by the Tribunal byapplication under Part 5 or section500.
Item 253A: Paragraph 494B(5)(d)
Method by which Minister gives documents toa person
773. This item amends paragraph494B(5)(d) of theMigrationAct to clarify that, where the Minister givesdocuments to a person by the last fax number, email address orother electronic address, as the case may be, provided to theMinister for the purposes of receiving documents, it needs to be afax number, email address or other electronic address provided tothe Minister by the recipient.
774. This item clarifies that transmitting a document to the lastcontact information provided to the Minister by a person other thanthe recipient is not a method by which the Minister can givedocuments to the recipient under paragraph494B(5)(d). This isconsistent with the other requirements in section494B (forexample, in subparagraphs494B(4)(c)(i) and(ii). Thisitem also clarifies that the Tribunal is not required to provideany updated contact information to the Department, following anyreview, and that the applicant is required to update the Departmentwith that information for the purpose of receiving documents. Itremoves doubt as to whether contact information (including a newemail address) provided to the Tribunal during a review would needto be used in future notifications by the Department, and ensuresthat the contact information relied upon by the Minister totransmit documents to a recipient is that identified by therecipient themselves to the Minister.
Item254: Subsection500(1)
Terminology changes
775. This item substitutes the wording in subsection 500(1) to reflectmodern drafting practices, and to update terminology by replacingthe reference to the AAT with a reference to the ART.
Item255: Subsection500(1) (note)
Repealing provisions no longer necessary
776. This item removes the note which is no longer necessaryconsequential to the repeal of existing Part 7AA (which containsthe fast track review provisions) by item228.
Item256: After Subsection500(1)
Altering Tribunal’s remittalpowers
777. This item inserts new subsection500(1A) which provides thatclause85 of the ART Bill does not apply in relation to areview by the Tribunal of a decision referred to insubsection500(1) of the Migration Act. Under clause85of the ART Bill the Tribunal may remit a decision to thedecision-maker for reconsideration and, after reconsideration bythe decision-maker, the proceedings in the Tribunal are resumed.Clause85 of the ART Bill does not apply because the intentionis that, in respect of decisions referred to insubsection500(1), only clause105 of the ART Bill is toapply (that is, the Tribunal must review and make the finaldecision under clause105 in respect of decisions referred toin subsection500(1)).
778. In light of the 84-day timeframe and the effect on a reviewapplication should that time expire, Clause85 of the ART Billhas been disapplied to ensure that a matter remains before and incontrol of the Tribunal for the entirety of this period. Thisensures that the review applicant cannot be disadvantaged throughany delays caused by the original decision-maker reconsidering amatter.
Item 258: Subsection500(3)
Altering ART provisions on who can apply
779. Item 258 amends subsection500(3) consequential to the repealof Part 7 by item228, to reflect that reviews are ‘byapplication under Part5’. New sections347 and347A in Part 5 of the Migration Act, inserted by item 136, set outthe requirements for an application to the Tribunal for review of areviewable migration decision or a reviewable protection decision.Once the application is made, the Tribunal conducts review ofdecisions in accordance with provisions of the ART Bill, subject toany contrary provisions in the Migration Act.
Item260: Subsections 500(4) and (4A)
Updating legislative references
781. These updates do not affect the operation of the provisions and thedecisions listed in subsection500(4) or 500(4A) are notreviewable by the Tribunal.
Item261: Subsection500(6)
Terminology changes
782. This item amends terminology. See explanation of generalterminology changes above.
Item262: Paragraph 500(6)(a)
Terminology changes and updating legislativereferences
783. This item replaces the paragraph to clarify that it applies inrelation to an order made by the Tribunal, such as a stay orderunder subclause32(2) of the ART Bill.
Item263: Paragraph500(6)(c)
Updating legislative references
784. This item updates legislative references, replacing a reference tothe AAT Act with reference to the equivalent provision in the ARTBill, subclause178(2). The amendment is technical in nature,and ensures that subsection500(6) of the MigrationActwhich refers to the power of the FCA or a Judge of that Court tomake an order affecting the Tribunal’s decision and thereviewable decision that is the subject of the Tribunal reviewcontinues to operate in substantively the same way.
Item264: Paragraph500(6)(d)
Updating legislative references
785. This item updates the AAT Act reference to the equivalentprovisions in the ARTBill, which refer to the power of theFCFCOA (Division2)or a Judge of that Court, upontransfers of appeals by the FCA, to make an order affecting theTribunal’s decision and the reviewable decision that is thesubject of the Tribunal review.
Item265: Subsection500(6A)
Updating legislative references
786. This item updates legislative references, replacing the AAT Actreference with the reference to the equivalent provision in the ARTBill, clause268. The amendment is technical in nature, andensures that subsection500(6A) of the Migration Act continuesto disapply the rule in the ART Bill that persons affected by areviewable decision may request reasons for that decision from thedecision-maker.
787. Clause268 of the ART Bill provides that persons affected by areviewable decision may request reasons for that decision from thedecision-maker. Clause268 of the ART Bill will not apply topersons who have had their visa applications refused, or visascancelled, on the basis that they did not pass the character testunder section501 of the Migration Act. This is becausesubsection501G(1) already requires written reasons to beprovided to the person in those circ*mstances.
Item266: Subsection500(6B)
Terminology changes
788. This item replaces the reference to ‘Tribunal’ toclarify that an application for review is made to the ART.
Item267: Subsection500(6B)
Updating legislative references
789. This item updates legislative references, replacing references tothe AAT Act with references to equivalent provision in the ARTBill, clauses 18 and 19. The amendments are technical in nature,and ensures that subsection500(6B) of the Migration Actcontinues to disapply the general rule in the ART Bill on timeperiod for lodgement of review applications, and that the Tribunalis precluded from extending the time limit. The time limit forapplying for review of decisions under section501 isninedays from when the person was notified of thedecision.
Item268: Subsection500(6C)
Terminology changes
790. This item amends terminology. See explanation of generalterminology changes above.
Item269: After subsection500(6C)
Information to include with applications tothe Tribunal
791. This item inserts new subsection500(6CA) to displacesubclause34(2) of the ARTBill and provide that a reviewapplication to the ART for a decision of the type listed mustinclude the documents specified in subsection500(6C) of theMigrationAct.
792. This item also inserts new subsection500(6CB), which providesthat a failure to comply with subsection500(6C) does notaffect the validity of an application to the Tribunal.Subsection500(6C) requires that, if a decision undersection501, or a decision under subsection501CA(4) notto revoke a decision to cancel a visa, relates to a person in themigration zone, an application to the Tribunal for a review of thedecision must be accompanied by, or by a copy of, specifieddocuments. This item has the effect that, if a person makes anapplication to the Tribunal but fails to comply with thisrequirement, this does not affect the validity of theapplication.
793. This item ensures that the Tribunal has jurisdiction to consider anapplication for review of a decision under section 501, or adecision under subsection501CA(4) not to revoke a decision tocancel a visa, related to a person in the migration zone, incirc*mstances where the applicant has failed to provide theinformation required by subsection500(6C).
Item270: Subsection500(6D)
Review applications relating to a person inthe migration zone
794. This item replaces the provision, updating the AAT Act referencesto the equivalent provisions in the ART Bill, clauses 21 and23.
795. Paragraph 500(6D)(a) requires the Tribunal to notify the applicantand the Secretary upon an application being made for a review ofthe specified decisions, consistent with the requirements underPart 5.
796. Paragraph 500(6D)(b) contains updates to AAT Act references andclarifies that the Tribunal’s notification obligations underclause21 of the ART Bill do not apply. Paragraph(b) alsodisapplies clause23 of the ART Bill and the decision-maker isnot obliged to give the Tribunal reasons and documents for thedecision that is the subject of the application.
Items 271 and 272: Paragraphs 500(6F)(a), (c) and (d),Subsection500(6FA)
Terminology changes
797. These items amend terminology. See explanation of generalterminology changes above.
Item273: After subsection500(6FA)
Giving additional reasons and documents tothe Tribunal
798. This item inserts new subsection500(6FB) to clarify thatprovisions of the ART Bill in relation to thedecision-maker’s obligations to give the Tribunal additionalstatements of reasons and additional documents on request, do notapply to a review of the specified decisions.
799. Paragraph 500(6F)(c) and subsection500(6FA) of the MigrationAct already provide the Tribunal with the authority to direct theMinister to provide copies of certain documents, and set out theperiod within which the Minister must comply.Subsection500(6FB) does not affect the operation or effect ofthese provisions.
Items 274 and 275: Paragraph 500(6G)(a),Subsection500(6G)
Terminology changes
800. These items amend terminology. See explanation of generalterminology changes above.
Item276: Subsection500(6G)(d)
Updating legislative references
801. This item updates legislative references, replacing a reference tothe AAT Act to the equivalent provision in the ART Bill,clause105. The amendment is technical in nature, and ensuresthat subsection500(6G) of the Migration Act continues tooperate in substantively the same way, that the Tribunal must notmake a review decision until the specified circ*mstances aremet.
Items 277 and 278: Subsections500(6H), (6J) and (6K),Paragraphs 500(6L)(a) and (c)
Terminology changes
802. These items amend terminology. See explanation of generalterminology changes above.
Item279: Paragraph500(6L)(c)
Updating legislative references
803. This item updates the AAT Act references and points tosubsection500(6M) (inserted by item282), which liststhe equivalent decision provisions in the ART Bill.
804. The paragraph sets out that if the Tribunal has not made a decisionunder the listed provisions within the 84-day period, one of thethree required conditions would be met to deem the decision underreview as affirmed.
805. This update does not change the effect of the provision.
Item280: Subsection500(6L)
Terminology changes
806. This item amends terminology. See explanation of generalterminology changes above.
Item281: Subsection500(6L)
Updating legislative references
807. This item updates legislative references, replacing reference tothe AAT Act with reference to the equivalent provision in the ARTBill, clause105. The amendment is technical in nature, andensures that subsection500(6L) of the Migration Act continuesto operate in substantively the same way. That is, thepre-conditions are met, the Tribunal is taken to have made a reviewdecision to affirm the decision under review.
Item282: After subsection500(6L)
Decisions under the ART Act for the purposesof subsection500(6L)
808. This item inserts new subsection500(6M) to list thoseprovisions in the ART Bill that are equivalent to the AAT Actreferences in existing paragraph 500(6L)(c). They include:
· a decision by the Tribunal to dismiss an application
- under clause95, upon the applicant’s withdrawal
- under clause96, upon the parties’ consent
- under clause97, as the subject is not a reviewabledecision;
- under clause98, as the fee was not paid
- under clause99, as the applicant failed to appear
- under clause100, as the applicant failed to comply with anorder
- under clause101, as the application was frivolous orvexatious
· a review decision by the Tribunal as agreed by the parties underclause103
· a decision by the Tribunal on review of the reviewable decisionunder clause105.
809. These amendments retain the requirement on the Tribunal to make adecision as provided in this item within the period of 84daysafter the day on which the person was notified of the decisionunder review as remains necessary in order to expedite review ofdecisions made by a delegate of the Minister under the characterprovisions. These provisions continue to balance theGovernment’s concern to expedite review of characterdecisions against the need to ensure that the Tribunal has theability to properly review these decisions.
810. The addition of subsection500(6M) is to support the operationof subsection500(6L), as amended by item279.
Item283: Paragraph 500(7)
Updating legislative references
811. This item replaces the references to the ‘AAT Act’ toclarify that the definition of ‘decision’ in the ARTBill applies to this section. This update does not affect theoperation or effect of the provisions, as the definition isidentical.
Item284: After section500
Applications generally cannot be made to theART guidance and appeals panel
812. This item inserts new section500AA to prevent parties frommaking applications under clause123 of the ARTBill toseek a review of a Tribunal decision on decisions made under thisAct.
813. Subsection500AA(2) of the Migration Act provides an exceptionfor matters relating to Part3 of this Act, which aredecisions about migration agents and the provision of immigrationassistance. The provision applies to all other applications forreview of a decision under this Act.
814. The establishment of the guidance and appeals panel is a newfeature of the Tribunal. The exclusion of decisions under theMigration Act (except for Part3 decisions) from being able tobe referred to the guidance and appeals panel for review supportsthe efficient and timely resolution of matters, preserves thefinality of Tribunal decisions (ensuring clear visa status forapplicants), and prevents applications being made to the guidanceand appeals panel to prolong an applicant’s stay inAustralia. It does not reduce the current ability to seek review ofthese decisions in the Tribunal and to seek further review in thefederal courts.
815. Clause122 of the ARTBill applies to all decisions madeunder the Migration Act. This allows the President of the Tribunalto refer an application for review of a decision that has been madeto the Tribunal to the guidance and appeals panel if satisfied thatthe application raises an issue of significance to administrativedecision-making and it is appropriate in the interests ofjustice that the Tribunal be constituted by the guidance andappeals panel (paragraph122(1)(b) of the ART Bill). This isintended to ensure that applications for review of a decision underthis Act can be reviewed by the guidance and appeal panel if theymight raise a systemic issue—for example, if the applicationinvolves an issue that may affect larger cohorts of decisions. Thismaintains the current setting allowing the Tribunal to issueguidance decisions in relation to migration and protectiondecisions.
Items 285 and 286: Paragraph501A(1)(b),Subsection501A(1)
Terminology changes
816. These items replace references to ‘Administrative AppealsTribunal’ and ‘Tribunal’ to clarify that thepre-conditions for the Minister to intervene undersection501A, relate to a non-adverse decision by a delegateor the ART that resulted in a visa being granted or remaining ineffect, whether or not the delegate or the ART were satisfied theperson passes a character test, or if they had reasonable suspicionthat the person would pass the test.
817. These amendments are technical in nature, and ensure paragraph501A(1)(b) and subsection501A(1) of the Migration Actcontinue to operate substantively in the same way in relation tothe Tribunal.
Items 287 and 288: Subsection501A(7) (heading),Subsections501A(7) and 501B(4)
Updating legislative references
818. These items are updates consequential to the repeal of Part 7 byitem228 and reflect that review of adecision is sought by application under Part 5. Newsections347 and 347A in Part 5 of the Migration Act, insertedby item 136, set out the requirements for an application to theTribunal for review of a reviewable migration decision or areviewable protection decision. Once the application is made, theTribunal conducts review of decisions in accordance with provisionsof the ART Bill, subject to any contrary provisions in theMigration Act.
819. These updates do not affect the operation of the provisions thatdecisions made under subsection501A(2) or (3) are notreviewable by the Tribunal, and the only option to challenge adecision made under this sectionis for the person to seekjudicial review in either the High Court or in the FederalCourt.
Item289: Subsection501B(5)
Terminology changes
820. This item replaces the reference to ‘Administrative AppealsTribunal’ to clarify that an application for review of adecision is made to the Tribunal. The update does not affect theoperation of the provision that the Minister may set aside adecision under section501B at any stage and substitute adecision which is also adverse, including where the delegate'sdecision is the subject of an application for review by theART.
Item290: Paragraph501BA(1)(b)
Terminology changes
821. This item replaces the reference to the ‘AdministrativeAppeals Tribunal’ to clarify that the Minister may set asidea decision of a delegate or the Tribunal that resulted in certainvisa cancellations being revoked. This update does not affect theoperation or effect of the provision.
Items 291 and 292: Subsection501B(5) (heading ), Subsections 501BA(5), 501C(11), 501CA(7) and501(F)(5)
Updating legislative references
822. These items are updates consequential to the repeal of Part 7 byitem228 and reflect that review of a decision is sought byapplication under Part 5. New sections347 and 347A in Part 5of the Migration Act set out the requirements for an application tothe Tribunal for review of a reviewable migration decision or areviewable protection decision to be properly made. The Tribunalconducts review of reviewable migration and protection decisions inaccordance with provisions of the ART Bill, as modified by theMigration Act.
823. These updates do not affect the operation of the provisions thatthe decisions listed in subsections501BA(5), 501C(11),501CA(7) and 501(F)(5) are not reviewable by the Tribunal.
Items 293, 294 and 295: Paragraph501G(1)(f),Subparagraph501G(1)(f)(i), Paragraph501G(2)(b)
Terminology changes
824. These items replace references to ‘Administrative AppealsTribunal’ and ‘Tribunal’ to clarify that certaindecisions are reviewable by the ART. These updates do not affectthe operation of provisions relating to notifications of thespecified decisions.
Item296: At the end of section501G
Notification of decision
825. This item inserts new subsection(5) to section501 ofthe Migration Act, which deals with notifications relating to arefusal or cancellation of a visa decision on charactergrounds.
826. New subsection501G(4) provides that clause267 of theART Bill does not apply to notifications under thissectionfor decisions to refuse or to cancel a visa.
827. Clause267 of the ART Bill requires that, in giving notice ofdecision, the decision-maker must have regard to mattersprescribed by rules. The rules will be used to set out bestpractice considerations for giving notice, including the content ofthose notices. It is anticipated that these rules will be based onthe Code of Practice for Notification of Reviewable Decisions andRights of Review made under subsection 27B(1) of the AAT Act.
828. Displacing clause267 of the ART Bill allows the Department ofHome Affairs to develop notices that are appropriate and tailoredto a refusal or cancellation decision under section501 of theMigration Act. Given the sensitivities of national interest, theapproach allows the administration of the character test theappropriate degree of transparency, certainty and consistency.
829. For decisions with a right of review to the Tribunal, notificationthat is compliant with the procedural requirements governs thecommencement periods for making an application for Tribunal review.The intent is to ensure that the legislative arrangements inrelation to rights of review of decisions operate fairly andefficiently.
Items 297, 298, 299, 300 and 301: Subsection501J(1),Subsection501J(2), Paragraph501J(5)(a)
Terminology changes
830. These items replace references to ‘AAT’ and‘Administrative Appeals Tribunal’ to clarify thatsection501J applies to certain review decisions made by theART. Subsection501J(2) is updated to clarify that an ART protection visa decision is a decision of the ARTin relation to an application for, or the cancellation of, aprotection visa.
831. These updates do not change the operation of the provision, thatthe Minister has the power to substitute a more favourable decisionfor an ART protection visa decision if the Ministerconsiders it is in the public interest to do so.
Items 302 and 303: Section501K (heading),Subsections501K(1) and (2)
Terminology changes
832. These items replace references to ‘Administrative AppealsTribunal’ to clarify that section501K applies toTribunal reviews of a person’s capacity to apply for aprotection visa, a protection-bridging visa, or where such visashave been cancelled.
833. These updates do not change the operation of the provision, that inrelation to these reviews, the Tribunal is not to publishinformation which may identify the person, their relatives ordependants.
Item304: Subsection503B(14) (tableitem4)
Terminology changes
834. This item replaces references to ‘Administrative AppealsTribunal’ to clarify that the person who applied to theTribunal for a review of the decision that is the subject of theproceedings as listed at table item4, is the applicant forthe purposes of subsection503B, which deals with theprotection of confidential information disclosed to Federal Courtor Federal Circuit Court.
835. The update does not change the operation of the provision, that theFederal Court or Federal Circuit Court may make orders to ensurethe non-disclosure of confidential information to anapplicant, a legal representative of the applicant or to any otherperson.
PART 2—BULK AMENDMENTS
Items 305 and 306: Amendments of listed provisions
836. These items include tables which make bulk amendments to thefollowing Home Affairs portfolio acts:
· Immigration (Guardianship of Children) Act 1946
· Maritime Transport and Offshore Facilities Security Act2003.
Terminology changes
837. The amendments make terminology changes, updating outdatedreferences to the ‘Administrative Appeals Tribunal’ toinstead refer to the ‘Administrative Review Tribunal’.These amendments ensure that the new Tribunal has jurisdiction toreview decisions that are reviewable by the AAT and that variousprovisions continue to operate in the same way as the current lawfor the new Tribunal.
SCHEDULE3 — DEPARTMENTOF SOCIAL SERVICES
OUTLINE
839. The amendments retain special provisions that are fundamental tothe operation of Tribunal review for social security and childsupport matters, including provisions that disapply - orapply instead of - provisions of the ARTBill. Theseprovisions will be retained to, among other things, protect theright to social security and to uphold longstanding principles andpractices of administrative review in the social security context.The Scheduleincludes provisions:
· maintaining timeframes longer than the standard 28-day timeframe bywhich a person may apply for ART review
· ensuring ART review proceedings are held in private
· enabling the decision-maker to vary or substitute a decisionthat is before the Tribunal for review, in certain circ*mstances,and
· applying a date of effect to certain decisions when an applicationfor review is made outside of a specified timeframe.
840. Some amendments remove special procedures for social security andchild support reviews. In these cases, the standard provisions inthe ARTBill will apply. Other amendments provide greaterharmonisation of provisions that apply instead of the ARTBillprovisions to matters in the social security portfolio.
841. This Schedulealso makes a range of minor amendments. Theseinclude amendments to update terminology, such as replacingreferences to the AAT or the AATAct with references to theTribunal or the ARTBill. These amendments ensure that theTribunal has jurisdiction to review decisions that were reviewableby the AAT, and that various provisions continue to operate insubstantively the same way in the Tribunal.
842. Other minor amendments include relocating certain specialprovisions from the AATAct to a DSS portfolioAct,replacing references to provisions of the AATAct withreferences to the equivalent provision under the ARTBill andrepealing provisions which contain terminology that is no longernecessary as a result of the repeal of the AATAct. In somecases, provisions are amended to cover both the AAT and Tribunal,to ensure these provisions operate as intended or to managetransitional issues.
843. This Schedulecontains consequential amendments covering thefollowingActs in the DSS portfolio:
· A New Tax System (FamilyAssistance)Act1999
· A New Tax System (Family Assistance)(Administration)Act1999
· Australian HearingServicesAct1991
· Child Support(Assessment)Act1989
· Child Support (Registration andCollection)Act 1988
· Disability ServicesAct1986
· MarriageAct1961
· National Disability InsuranceSchemeAct2013
· Paid ParentalLeaveAct2010
· SocialSecurityAct1991
· Social Security(Administration)Act1999
· StudentAssistanceAct1973
844. Amendments to a particularAct may be contained in bothPart1 (Main amendments) and Part2 (Bulk amendments) ofthe Schedule.
Part 5A - second review of social securitydecisions
845. Importantly, the proposed ART Bill amendments would establishPart5A in the ART Bill, providing a pathway for parties toreviews of social services decisions (which include socialsecurity, family assistance, child support, paid parental leave andstudent assistance reviews) to seek second review of AdministrativeReview Tribunal (Tribunal) decisions. These amendments to the Billwould ensure that the Tribunal operates as intended when providingsecond review for social services applicants.
846. The second review pathway would replace access to the appealsfunction of the guidance and appeals panel under Part 5 of theBill, in which a party can apply to the President to have aTribunal decision referred to the panel. The President may stillrefer an application for review of a decision to the guidance andappeals panel on the basis it raises an issue of significance toadministrative decision-making, on either first or secondreview.
847. Amendments to Social Services portfolio legislation are required tofacilitate reviews under new Part5A. In summary, theamendments:
· omit references to 'guidance and appeals panel applications' inrelevant provisions, noting that where second review of decisionsis available, applicants are not able to also seek referral of aTribunal decision to the guidance and appeals panel,
· insert references to second review in relevant legislativeprovisions, including those which provide simplified outlines anddefinitions relating to Tribunal reviews,
· ensure that decisions cannot be varied or substituted bydecision-makers without the agreement of the Tribunal if they havebeen referred to the guidance and appeals panel on the basis theymay raise an issue of significance to administrativedecision-making (to ensure the Tribunal has visibility of how thesematters are resolved),
· ensure that second reviews of ‘ART social servicesdecisions’ (as defined by the amendments to the ART Bill)work as intended, including in relation to care percentagedecisions,
· require relevant notices of decision and review rights to includeinformation about a person's right to apply to the Tribunal forsecond review of the decision, and
· clarify how Administrative Appeals Tribunal (AAT) second reviewsthat have been commenced or completed at the time of transition tothe Tribunal are treated after the decision has occurred.
Part1—Main amendments
General terminology changes
848. A range of itemsin this Schedulemake simple terminologychanges, such as repealing outdated references to the‘Administrative Appeals Tribunal’, the‘AAT’ and the ‘ Administrative AppealsTribunalAct1975’ and replacing withreferences to the ‘Administrative Review Tribunal’,‘ART’ and ‘ Administrative ReviewTribunalAct2024’. These amendments ensurethat the Tribunal has jurisdiction to review decisions that arereviewable by the AAT, and that the provisions under those lawscontinue to operate in substantively the same way in theTribunal.
849. Similarly, a range of itemsrepeal terminology and referencesto ‘AAT review’ and replace this terminology with‘ART review’, 'ART social services decision', 'eligiblesocial services decision' and 'second review'. This Schedule refersto 'ART review' to mean initial review of an ART social servicesdecision and 'ART second review' to refer to second review of asocial services decision by the Tribunal.
A New Tax System (FamilyAssistance)Act1999
Item1: Subsection85CE(4)
Notice of reviewabledecision and review rights
850. This itemrepeals subsection85CE(4) of this Act. Underthis subsection, the Secretary is not required to give notice of arefusal to make a child wellbeing determination for the purposes ofadditional child care subsidy, where the refusal is taken to havebeen made because the timeframe for making the decision hasexpired. The effect of repealing subsection85CE(4), is thatthese specific deeming provisions and requirements to providenotice of decisions and review rights are removed andclause266 of the ARTBill will apply . Subclause266(4) of the ARTBill provides that noticerequirements do not apply to decisions taken to have been madebecause the decision has not been made within the timeframe.
851. Subsection85CE(4) is being repealed to support a policy ofstandardising provisions relating to administrative review acrossCommonwealth legislation where there is no need for differentprovisions to apply. This ensures provisions in the ARTBillare not duplicated or disapplied unnecessarily in other pieces oflegislation. Ultimately, this policy streamlines Tribunal processesand simplifies and improves administrative practices.
852. Repealing subsection85CE(4) does not change the effect ofnotification arrangements for the deemed refusal decisions underthe subsection, as these are equivalent to the arrangements underclause 266 of the ARTBill.
Item2: Subsection85CH(5)
Notice of reviewable decision and reviewrights
853. This itemrepeals subsection85CH(5) of this Act. Underthis subsection, the Secretary is not required to give notice of adeemed refusal to an application for a determination of temporaryfinancial hardship. The effect of repealingsubsection85CH(5), is that these specific deeming provisionsand requirements to provide notice of decisions and review rightsare removed and clause266 of the ARTBill will apply.Subclause266(4) of the ARTBill provides that noticerequirements do not apply to decisions taken to have been madebecause the decision has not been made within the timeframe.
854. Subsection85CH(5) is being repealed to support a policy ofstandardising provisions relating to administrative review acrossCommonwealth legislation where there is no need for differentprovisions to apply. This ensures provisions in the ARTBillare not duplicated or disapplied unnecessarily in other pieces oflegislation. Ultimately, this policy streamlines Tribunal processesand improves administrative practices.
855. Repealing subsection85CH(5) does not change the effect ofnotification arrangements for certain deemed refusal decisions thatthe subsectioncurrently creates, as these are equivalent tothe arrangements under clause 266 of the ARTBill.
A New Tax System (Family Assistance)(Administration)Act1999
Items 3 and 4: Subsection3(1)
Terminology changes
857. Item3 also repeals the term ‘AAT single review’and replaces it with the term ‘ART child care providerreview’ which is defined under item4 of this Schedule.This change in terminology makes no substantive change to theoperation of reviews under this Act.
Item5: Subsection3(1) (definition of decision )
Item6: Subsection3(1) (definition of guidance andappeals panel and guidance and appeals panel proceeding)
New definitions
859. This iteminserts a definition of ‘guidance and appealspanel’ and ‘guidance and appeals panelproceeding’, and provides that these terms have the samemeaning as in the ARTBill. This amendment ensures the newguidance and appeals panel framework operates consistently withsocial security legislation.
Item7: Paragraphs 73(a), (b) and(c)
Terminology changes
860. This itemreplaces paragraphs 73(a), (b), and (c) in order toupdate their terminology. See explanation of general terminologychanges above.
Items 8, 9, 10, 11 and 12: Subparagraph105D(2)(b)(ii),Paragraph109D(1)(a), Subparagraphs109D(4)(b)(ii) and(c)(ii), Subsection109D(5A),Subparagraphs109E(3)(b)(ii) and (c)(ii)
Timeframe for application for review
861. These itemsomit ‘13weeks’ and substitute‘90days’ in the following provisions intheAct:
· paragraph109D(1)(a)
· subparagraphs109D(4)(b)(ii) and(c)(ii)
· subsection109D(5A)
· subparagraphs109E(3)(b)(ii) and(c)(ii).
862. These itemsstandardise the timeframe to apply for review ofcertain decisions, in order to create a consistent timeframe acrosssimilar applications for review of decisions that exist under the A New Tax System (Family Assistance)(Administration)Act1999, the Child Support(Registration and Collection)Act1988 and the Student AssistanceAct1973 . This new 90-daytimeframe helps to streamline applications for review to theTribunal. It also provides administrative efficiencies for theTribunal when processing applications with a common timeframe, withminimal impact on a person’s timeframe to seek review ofthese decisions (as 90 days is broadly equivalent to 13 weeks).
Items 13, 14, 15 and 16: Section 110
Simplified outline of this Division
863. Item 13 updates terminology in section110 of this Act toreplace, wherever occurring:
· ‘AAT for review of thedecision (an “AAT first review”)’ replaced to‘ART for review of the decision (an “ARTreview”)’.
864. Items 14 and 15 repeal the paragraphs explaining AAT single reviewand AATsecond review, and replaces them with a new paragraphwhich provides that in some circ*mstances prescribed by theARTBill, a person can apply to refer a decision to theguidance and appeals panel, or in other circ*mstances, applicationcan be made for a second review of the decision by theTribunal.
865. Item 16 replaces ‘AAT’ with ‘ART’. Seeexplanation of general terminology changes above.
Item17: Section 110
Simplified outline of this Division
866. This itemrepeals the paragraph beginning with ‘TheAATAct’ and substitutes a new paragraph to clarify thatthe ARTBill allows a person to appeal to the FCA on aquestion of law from a decision of the Tribunal. Other appealpathways to the courts from a decision of the Tribunal, ifavailable, are located elsewhere in this Schedule. For example, seeitems89 and90 below. These itemsare technicalamendments and are needed to ensure these provisions continue tooperate in substantively the same way in the Tribunal.
Items 18 and 19: Subsections 111(1)and 111(1A)
Application for ART review
867. These itemsupdate terminology in subsections111(1) and111(1A) from ‘AAT first review’ to ‘ARTreview’. See explanation of general terminology changesabove.
Items 22 and 23: Subsections 111A(1) to (2A)
Timeframe for application for review
868. These itemsreplace references in these subsections to‘13weeks’ with references to‘90days’. These itemsstandardise thetimeframe to apply for review of certain decisions, in order tocreate a consistent timeframe across similar applications forreview of decisions.
Item24: After subsection111(1B)
Decision-makertaken to have elected not to participate in ARTreviewproceeding
869. This iteminserts section111C which operates byproviding that the Secretary is automatically taken to haveprovided an election notice to the Tribunal not to participate inany kind of proceeding for ARTreview of adecision underthis Act. The effect of this sectionis that thedecision-maker is deemed to have provided an election noticefor ARTreview for the review of decisions underthisAct, and therefore does not need to appear at ART firstreview. (unless the proceeding is a second review proceeding, hasbeen referred to the guidance and appeals panel or the Tribunal hasordered or agreed that the decision-maker participate in theproceedings in accordance with subclauses 62(1) or63(2) ofthe ARTBill).
870. The effect of this sectionis that the decision-maker isnot an active participant in the proceedings but remainsaparty to that matter (anon-participating party).This section preserves existing arrangements for parties inrelation to the conduct of AAT first review matters in whichdecision-makers do not currently participate. It aims to promoteefficiency and a more informal, less-adversarial Tribunalenvironment. The Tribunal may still directanon-participating party to do athing (such astake partin adispute resolution process).
871. In order to participate in a proceeding, a decision-makerwould need to give written notice and obtain permission of theTribunal to participate, under clause 62 of the ARTBill. Thiscould be, for example, where an application for review raises anissue of particular interest for the agency, or where the agencyidentifies an opportunity to arrive at a negotiated outcome that isfavourable to the applicant. In these circ*mstances, enabling thedecision-maker to participate in the proceeding promotes theobjective of efficient review. Allowing the Tribunal to determinewhether the decision-maker should participate ensures that theTribunal can consider any concerns other parties may have inrelation to the decision-maker participating. Together withclause64 of the ART Bill, it also helps to promote certaintyand predictability about the participation of the decision-maker inparticular kinds of proceedings.
872. Section111C does not apply to reviews of child care providerdecisions because they are not defined as ARTreviews.These are classified as ART child care provider reviews, and aresubject to different rules as set out in SubdivisionG,Division2, Part5 of thisAct.
Item 25: Section112
Operation and implementation of decisionunder ARTreview
873. This itemrepeals and substitutes section112 so that theTribunal is unable to make an order staying or otherwise affectingthe operation and implementation of the decision before theTribunal makes its final decision. Substituted section112 isequivalent to section112 which operates instead ofsubsection41(2) of the AATAct in relation to reviewapplications at the Social Services and Child Support Division.However, substituted section112 does not apply if theproceeding is a guidance and appeals panels application. In thosecirc*mstances, the Tribunal may make an order staying or otherwiseaffecting the operation of the decision.
874. This preserves existing arrangements that prohibit Tribunal stayorders for AAT first review, but allows Tribunal stay orders to bemade at AAT second review.
Remitting decisions for reconsideration
875. This iteminserts section112A, to make it clear that theTribunal’s power to remit adecision to thedecision-maker for reconsideration at any time duringaproceeding for review (as allowed for in the ARTBillat clause 85) does not apply in relation to ARTreview mattersunder thisAct.
876. Tribunal remittal powers during the course of proceedings have beendisapplied in thisAct for ARTreview other than insecond review proceedings)consistent with existing arrangementsconcerning remittal powers at theAAT. Section 112A isintended to support timely resolution of matters and avoid remittalwhere it might prolong resolution. In social security matters, itis more appropriate for the Tribunal to only remit adecisionto the decision-maker for reconsideration when that remittalis adecision on review to finalise the matter in theTribunal.
Requesting reasons for decision
877. This itemalso inserts subsection112B.Subsection112B operates instead of clause268 of theARTBill which allows persons whose interests are affected bya reviewable decision to request astatement of reasons fromthe decision-maker within astandard timeframe. Theeffect of subsection112Bretains the effect ofsubsection28(1AAA) of the AATAct which preventsaperson from applying to receive astatement of reasonsfor adecision made at the social security and child supportDivisionof the AAT under subsection28(1) of theAATAct. This is existing policy and reflects the sensitivenature of information that may form the basis of such decisions.This policy protects the privacy of parties to an initial socialsecurity review at the Tribunal and ensures that information aboutdecisions cannot be obtained by persons who were notarelevant party to that review.
878. This itemdoes not affect aperson’s automaticentitlement under the ARTBill to receive awrittenstatement of reasons where they are aparty to that relevantARTreview matter and decision.
Legal or financial assistance
879. This itemcreates section112C, which provides thataperson who applies to the Tribunal for review ofadecision under thisAct cannot make an application tothe Attorney-General for legal or financial assistance underclause294 of the ARTBill.Section112Cclarifies that aperson may apply forlegal or financial assistance if the application is in relation toamatter that is before the guidance and appeals panel forreview.
880. This itemretains the effect of subsection69(3) of theAATAct in which an application for legal assistance to theAttorney-General is not currently available in the SocialServices and Child Support Divisionof the AAT (but isotherwise allowed for AAT second review matters).
Item26: Subsection115(2)
Variation oforiginal decision after application is made forARTreview
881. A decision-maker can vary or substitute a decision under this Actafter an application for review of a decision is made to theTribunal. Where this occurs, current subsection115(1)provides that the ART review, if it continues, relates to thedecision as varied or substituted.
882. Current subsection115(2) provides that the applicant maydiscontinue or withdraw their application if they do not wish theTribunal to continue reviewing the varied or substituted decision.This itemrepeals that subsectionbecause it is no longernecessary. The ARTBill provides aperson with theability to withdraw their application by awritten notice orany other manner specified in the practice directions.
883. This item substitutes a subsection115(2) of the A New Tax System (Family Assistance)(Administration) Act 1999 which provides that if
884.
885. the President of the Tribunal refers the application to theguidance and appeals panel under clause122 of the ART Bill,clause31 of the ARTBill applies. That is, once areferral has been made to the guidance and appeals panel becausethe President considers it raises an issue of significance toadministrative decision-making, the decision cannot be alteredexcept by the Tribunal unless the parties to the review proceedingand the Tribunal agree. This ensures that the Tribunal hasvisibility of how matters raising issues of significance toadministrative decision-making are resolved.
886. The decision-maker also cannot vary or substitute a decision afteran application for second review has been made: see proposed clause131M of the ART Bill, inserted in new Part 5A, which provides thatdespite a contrary intention, clause31 of the ARTBillapplies to second reviews.
Item27: Subsection116(1)
Procedure on receipt of application forARTreview
887. This itemrepeals and replaces subsection116(1) toupdate terminology but otherwise retains the effect ofsubsection116(1) so that the Tribunal may, in relation to anapplication for Tribunalreview request the Secretary to lodgecertain documents with the Tribunal.
Item28: Subsection119(1)
Power to obtain information forARTreview
888. This itemupdates terminology in subsection119(1) sothat the application of the subsectionremains the same inrelation to the Tribunal’s summons powers. Theseitemsare technical amendments needed to ensure that variousprovisions continue to operate in the same way in the Tribunal.
Item29: Subsection119(2) (penalty)
Penalties
889. This itemrepeals the existing penalty for failing to complywith a summons notice. The penalty has been reduced to imprisonmentfor sixmonths or 30penalty units, or both, to alignwith penalties for failing to comply with a summons underclause116 of the ARTBill. This penalty level isconsistent with the approach to penalties for failure to complywith a summons that are set out in Part9.4 of the Guide toOffences.
Items30 and31: Section120 (heading) andsubsection120(1)
Tribunal may require Secretary to obtaininformation for ARTreview
890. This itemupdates terminology from ‘AAT firstreview’ to ‘ART review’. The power to requirefurther information from the Secretary may also extend to guidanceand appeals panel reviews. These itemsare technicalamendments needed to ensure that section120 continues tooperate in the same way in the Tribunal.
Item32: Section121
Hearing of certain ARTreviews inprivate
891. This itemrepeals and substitutes section121 so thataproceeding for ARTreview must be heard in private.This maintains arrangements under section121 of the Act forAAT review matters to be heard in private.
Item 32A: Subsection 122(1)
Costs of proceedings to be borne by eachparty except where legal or financial assistance is granted
892. Item 32A inserts ‘and the outcome of any application undersection 294 of the ART Act’ after the reference tosubsection122(4) in subsection122(1).
893. This item clarifies that a party must bear their own costs inrelation to an ARTreview, except where the circ*mstances insubsection122(4) apply, or depending on the outcome of anapplication under clause294 of the ARTBill for legal orfinancial assistance. This item is consequential to proposednew Clause131U of the ART Bill, which provides that a personmay apply to the Attorney-General for legal or financialassistance in a proceeding for second review of an ART socialservices decision.
Item33: Section122(3)
Costs of ARTreview
894. This itemupdates terminology from ‘AAT firstreview’ to ‘ART review’. The power for theTribunal to determine whether the Commonwealth is to pay for theprovision of amedical service in relation to a party atARTreview may also extend to guidance and appeals panelreviews.
Item33A: Paragraph 123(a)
Decision on ART review of care percentagedecision
895. Item 33A repeals and substitutes paragraph123(a). Newparagraph 123(a) states that if the Tribunal has reviewed a childsupport decision (as referred to in section 89 of the ChildSupport (Registration and Collection) Act 1988 ) (first review)or a decision on application referred to in proposed clause 131D ofthe ART Bill (second review) in relation to a child supportdecision, then the Tribunal must not vary or substitute thedecision in a way that has the effect of varying or substitutingthe care percentage determination.
896. This item is consistent with current settings that the Tribunalcannot, on ARTreview (that is not a second review), vary orsubstitute review decisions of care percentage decisions. This isto provide certainty for applicants involved in child support caredecisions and ensure that payments are continued to be consistentlypaid during the time the Tribunal is reviewing the decision.
Item34: Subsection124(1)
Certain other decisions onARTreview
897. This itemupdates terminology from ‘AAT firstreview’ to ‘ART review’, and updates thereference to clause 105 of the ARTBill. See explanation ofgeneral terminology changes above.
Items36 and37: Subsections125(1)and125(2)
Date of effect of certain ARTreviewdecisions relating to payment of family tax benefit
898. These itemsamend paragraph125(1)(b) andsubsection125(2), so that date of effect provisions relatingto payments for family tax benefits omits‘13weeks’ (wherever occurring) and substitutes‘90days’. Theseitemsstandardise the timeframe in relation to date of effectin order to create consistent timeframes across similarapplications for review of decisions.
Item 38: Section126
Notification of decision and statement ofreasons for Tribunal review
Items39 and40: Section127
Secretary or Tribunal may treat event ashaving occurred if decision set aside on ARTreview
900. These itemsupdate terminology from ‘AAT firstreview’ to ‘ART review’, and update the referenceto clause105 of the ARTBill. See explanation of generalterminology changes above.
Item41: SubdivisionsD andE of Division2of Part5
Item42: SubdivisionF of Division2 ofPart5 (heading)
Removal of AAT second review
902. This itemrepeals the subheading at SubdivisionF ofDivision2 of Part5 of thisAct, as it is no longernecessary as a result of the removal of AAT second review fromsocial services legislation.
Item43: Subparagraph137B(2)(b)(ii)
ARTreview of entitlement to be paidCCS or ACCS-time limit on increase
903. This itemamends subparagraph137B(2)(b)(ii) to omit‘13weeks’ and substitute‘90days’. These itemsstandardise thetimeframe to make an application for review for certain decisionsas specified in section137B, in order to create consistenttimeframes across similar applications for review of decisions.
Items44 and45: Subsection138(1) andSubsection138(3)
Applications for AAT single review
904. These itemsamend subsections138(1) and138(3) tomake relevant terminology updates by omitting ‘AAT singlereview’ and substituting it for ‘ART child careprovider review’.
905. This terminology change is required to ensure the term‘ART child care provider review’ maintains the samemeaning and effect of ‘AAT single review’ as given bysection138 of this Act.
Item46: After subsection138(3)
ART child care provider reviews
906. This iteminserts subsection138(3A) to clarify that anyARTreview undertaken, including by the guidance and appealspanel, of child care provider reviews are taken to be ‘ARTchild care provider reviews’. This itemensures that ARTchild care provider reviews are not subject to special arrangementsmade by this Schedulefor other social security mattersreviewed by the Tribunal.
Item 47: Aftersection138
Remitting decisions for reconsideration
907. This iteminserts section138A, to make it clear that theTribunal’s power to remit adecision to thedecision-maker for reconsideration at any time duringaproceeding for review (as allowed for in the ARTBillat clause 85) does not apply in relation to ARTreview mattersunder thisAct. Section 138A does not apply to guidance andappeals panel reviews where remittal to the originaldecision-maker is permitted at any time duringaproceeding for review.
908. Tribunal remittal powers during the course of proceedings have beendisapplied in thisAct for ARTreview (other than forsecond review proceedings) to retain the existing arrangementsconcerning remittal powers at the AAT. This section is intended tosupport timely resolution of matters and avoid remittal where itmight prolong resolution. In social security matters, it is moreappropriate for the Tribunal to only remit adecision to thedecision-maker for reconsideration when that remittal isadecision on review to finalise the matter.
Legal or financial assistance
909. This itemalso creates section138B which provides thataperson who applies to the Tribunal for review ofadecision under thisAct cannot make an application tothe Attorney-General for legal or financial assistance underclause294 of the ARTBill. Section138B clarifiesthat aperson may apply for legal or financial assistance ifthe application is in relation to amatter that is before theguidance and appeals panel for review.
910. This itemretains the effect of subsection69(3) of theAATAct in which an application for legal assistance to theAttorney-General is not available in the Social Services andChild Support Divisionof the AAT (but is otherwise allowedfor AAT second review matters).
Item48: Subsection139(2)
Variation of decision after application ismade for child care provider review
911. A decision-maker can vary or substitute a decision under this Actafter an application for review of a decision is made to theTribunal. Where this occurs, current subsection139(1)provides that the Tribunal review, if it continues, relates to thedecision as varied or substituted.
912. Current subsection139(2) provides that the applicant maydiscontinue or withdraw their application if they do not wish theTribunal to continue reviewing the varied or substituted decision.This itemrepeals that subsection because it is no longernecessary. The ARTBill provides aperson with theability to withdraw their application by awritten notice orany other manner specified in the practice directions
913. This item substitutes a new subsection139(2) which providesthat subsection139(1) does not apply if the application isaguidance and appeals panel application. Decisions underreview by the guidance and appeals panel cannot be varied andsubstituted by the decision-maker without the agreement of theTribunal, as these proceedings concern matters of systemicsignificance or possible errors by the Tribunal and the Tribunalmust have visibility of how they are resolved (see clause31of the ARTBill).
914. New subsection139(3) clarifies that where a decision has beenvaried or substituted (after the application for referral to theguidance and appeals panel is made but before the guidance andappeals panel is constituted), the application to the guidance andappeals panel is to be taken to be an application for the review ofthat decision as varied or substituted. After the guidance andappeals panel has been constituted, the decision can only be variedor substituted under subclause31(2) of the ARTBill.
915. This itemretains the effect of section139 underthisAct, which applies to AAT single review.
Item49: Paragraph140(a)
Secretary may treat event as having occurredif decision to set aside on ARTreview
916. This itemmakes relevant terminology updates by repealing theparagraph and substituting it so that ‘AAT singlereview’ is substituted for ‘ART child care providerreview’. This itemensures that ART child care providerreviews are not subject to special arrangements made by thisSchedulefor other social security matters reviewed by theTribunal.
Item50: After paragraph152D(1)(a)
Date of effect of ARTreviews under thechild support law that apply for family assistance purposes
917. This iteminserts paragraph152D(1)(aa) to specify thatthese date of effect provisions do not apply to guidance andappeals panel applications.
Items51 and52: Paragraph152D(1)(c) andsubsection152D(3)
Date of effect of ARTreviews under thechild support law that apply for family assistance purposes
918. These itemsamend paragraph152D(1)(c) andsubsection152D(3) to omit ‘13weeks’ andsubstitute ‘90days’. These itemsstandardisethe timeframe to apply for review of certain decisions, in order tocreate a consistent timeframe across similar applications forreview of decisions.
Items52A: After Subsection 161(1A)
Publishing reasons for Tribunaldecisions
919. This item inserts new subsections 161(1B) and 161(1C) to the ANew Tax System (Family Assistance) (Administration) Act1999 .
920. The ART Bill implements recommendations of the Robodebt RoyalCommission Report in relation to the publication of Tribunaldecisions. Under the Bill, the Tribunal can publish any of itsdecisions and would be required to publish decisions involving asignificant conclusion of law, or with significant implication forCommonwealth policy or administration.
921. Secrecy provisions are contained in the social security law thatprohibit disclosure of protected information and would likelyprevent publication of Tribunal decisions to which that informationrelates. Exceptions to secrecy provisions as set out in subsection16(2AB) of the Child Support (Registration and Collection) Act1988 currently allow the Tribunal to publish reasons forde-identified child support tribunal decisions. Similar amendmentsto the A New Tax System (Family Assistance) (Administration) Act1999 are required to ensure that de-identified familyassistance decisions of the Tribunal can also be published.
922. New Subsection 161(1B) provides that, despite secrecy provisions,the Tribunal may publish reasons for a Tribunal decision on reviewso long as the publication does not identify (other than theSecretary or the Child Support Registrar):
· Any party to the review; or
· Any person related to, associated with a party to which the matterrelates; or
· Any witness in the review concerned.
923. New subsection 161(1C) sets out types of information that are takento be information that identifies a person, where it is sufficientto identify that person to a member of the public to which thepublication is disseminated. This includes information on theparticulars of a person’s:
· name, title, pseudonym or alias; or
· address or the locality in which they reside or work; or
· physical description; or
· profession, occupation or calling; or
· relationships or acquaintances; or
· interests or beliefs; or
· real or personal property in which they have an interest orotherwise associated
924. These amendments are necessary as the ability for the Tribunal topublish its decisions is important to promoting public trust andconfidence in administrative decision-making and its operations andpromote transparency in decision-making. Requirements that anypublication of a Tribunal decision in a family assistance mattermust be de-identified will protect the identity of individuals andparties.
Australian HearingServicesAct1991
Items53 and54: Paragraph65(1)(e) andsubsection65(3)
Terminology Changes
925. These itemsmake minor terminology changes. See explanation ofgeneral terminology changes above.
Child Support(Assessment)Act1989
Items55 and56: Subsection5(1)
Updating definitions
Child Support (Registration andCollection)Act1988
Items57, 58 and59: Subsection4(1)
Updating definitions
927. These itemsupdate definitions under subsection4(1) toreflect terminology changes. See explanation of general terminologychanges above.
Item60: Subsection4(1)
New definitions
928. This item inserts a definition of second review insubsection 4(1), and provides that it has the same meaning as inthe ART Bill.
Item61: Subsection72T(2) (definition of decision )
Terminology changes
929. This itemmakes a minor terminology change. See explanation ofgeneral terminology changes above.
Item62:Section79D
Simplified outline of this Part
930. This itemis a technical amendment and updates terminology atsection79D to omit ‘the AAT for review of the decision(an “AAT first review”)’ and replace it with‘the ART for review of the decision (an “ARTreview”)’.
Item63: Section87A
Application for ARTreview
931. This itemis a technical amendment and repeals and substitutes‘AAT’ with ‘ART’ and ‘AAT firstreview’ with ‘ART review’ (wherever occurring).See explanation of general terminology changes above.
Item64: Section87A (paragraph beginning “Theperson may”)
Simplified outline of this Part
932. This itemrepeals the paragraph explaining AAT first reviewand AATsecond review, and replaces it with a new paragraphwhich provides that in some circ*mstances prescribed by theARTBill, a person can apply to refer a decision to theguidance and appeals panel, or in other circ*mstances, applicationcan be made for a second review of the decision by theTribunal.
Item65: Sections87A (paragraph beginning “Therules”)
Terminology changes
933. This itemmakes a minor terminology change. See explanation ofgeneral terminology changes above.
Item66: Section87A (paragraph beginning ‘TheAATAct’)
Simplified outline of this Part
934. This itemrepeals the paragraph beginning with‘TheAATAct’ and substitutes the paragraphto clarify that, subject to this Part, the ARTBill allowsaperson to appeal to a court on aquestion of law fromadecision of the Tribunal. The relevant provisions in thisPartare in items89 and90.
Item67: Section89
Technical amendment
935. This itemis atechnical amendment and is needed tocreate subsection89(1) as a consequence ofsubsection89(2) as inserted by item69. Thisitemis needed to ensure that various provisions continue tooperate in the same way in the Tribunal.
Item68: Section89
Application for ARTreview
936. This itemis atechnical amendment and updatesterminology in section89 from ‘AAT’ to‘ART’ and ‘AAT first review’ to ‘ARTreview’. See explanation of general terminology changesabove.
Item69: At the end of section89
Application for ART review
937. This iteminserts subsection89(2) to clarify thataguidance and appeals panel review is also to be consideredan ARTreview. This replaces the concept of ‘AAT firstreview’ and ‘AAT second review’ with the conceptof ‘ARTreview’, to encompass all reviews at theTribunal. Note that clarifications have been made throughout thisSchedulewhen aprovision concerning ARTreview istaken not to apply to the guidance and appeals panel.
Item70: Subsection(90)(1) (note)
Time limit on application forARTreview
938. This itemupdates the note at subsection90(1) to updateterminology and the reference to clause 18 of the ARTBill.See explanation of general terminology changes above.
939. This itemotherwise preserves the effect of section90where there is no time limit to apply for ARTreview of a carepercentage decision.
Item71: At the end of section90
Time limit on application forARTreview
940. This itemis aclarifying amendment which insertssubsection90(3). Subsection90(3) makes it clear thatsubsection90(2) concerning atime limit for Tribunalreview does not apply in relation to aguidance and appealspanel application.
Item72: At the end of section91
Application for extension of time to applyfor ARTreview
941. This iteminserts subsection91(4) to make it clear thatan application for an extension of time to apply forARTreview made under section91 does not apply toguidance and appeals panel applications.
Item73: Subsections92(4) and(5)
Consideration of application for extensionof time to apply for ARTreview
942. This itemrepeals and substitutes subsections92(4).
943. New subsection 92(4) provides that if the Tribunal refuses anextension application under section 91 of the Child Support (Registration and Collection) Act1988 , the notice of decision under subsection 92(3) mustinclude a statement that the person may apply to the Tribunal forsecond review of the decision to refuse the extension and that theperson may, under clause 268 of the ART Bill, request astatement of reasons for the decision to refuse the extensionapplication.
944.
945. This a technical amendment that reflects proposed clauses in theARTBill which make an application for second review availablefor social services matters, including Tribunal decisions on childsupport extension applications.
946.
Item74: Before section95A
Decision-maker taken to have given anelection notice
947. This iteminserts section94 which operates by providingthat the Secretary is automatically taken to have provided anelection notice to the Tribunal not to participate in any kind ofproceeding for ARTreview of adecision under this Act.The effect of this sectionis that the decision-maker isdeemed to have provided an election notice for proceedings forARTreview for the review of decisions under thisAct,and therefore does not need to appear at Tribunal proceedings(unless the proceeding is a second review proceeding,guidance and appeals panel proceeding or the Tribunal hasordered or agreed that the decision-maker participate in theproceedings in accordance with subclauses 62(1) or63(2) ofthe ARTBill).
948. The effect of this sectionis that the decision-maker isnot an active participant in the proceedings but remainsaparty to that matter (anon-participating party).This section preserves existing arrangements for parties inrelation to the conduct of AAT first review matters in whichdecision-makers do not currently participate. It aims to promoteefficiency and a more informal, less-adversarial Tribunalenvironment. The Tribunal may still directanon-participating party to do athing (such astake partin adispute resolution process).
949. In order to participate in a proceeding, a decision-makerwould need to give written notice and obtain permission of theTribunal to participate, under clause 62 of the ARTBill. Thiscould be, for example, where an application for review raises anissue of particular interest for the agency, or where the agencyidentifies an opportunity to arrive at a negotiated outcome that isfavourable to the applicant. In these circ*mstances, enabling thedecision-maker to participate in the proceeding promotes theobjective of efficient review. Allowing the Tribunal to determinewhether the decision-maker should participate ensures that theTribunal can consider any concerns other parties may have inrelation to the decision-maker participating. Together withclause64 of the ART Bill, it also helps to promote certaintyand predictability about the participation of the decision-maker inparticular kinds of proceedings.
Item 75: Section95A
Operation and implementation of decisionunder ARTreview
950. This itemrepeals and substitutes section95A so that theTribunal is unable to make an order staying or otherwise affectingthe operation and implementation of the decision before theTribunal makes its final decision. Substituted section95A isequivalent to section95A which operates instead ofsubsection41(2) of the AATAct in relation to reviewapplications at the Social Services and Child Support Division.However, substituted section95A does not apply if theproceeding is a guidance and appeals panels application. In thosecirc*mstances, the Tribunal may make an order staying or otherwiseaffecting the operation of the decision. This preserves existingarrangements that prohibit Tribunal stay orders for AAT firstreview, but allows Tribunal stay orders to be made at AAT secondreview.
Remitting decisions for reconsideration
951. This itemalso inserts section95AA, to make it clearthat the Tribunal’s power to remit adecision to thedecision-maker for reconsideration at any time duringaproceeding for review (as allowed for in the ARTBillat clause 85) does not apply in relation to ARTreview mattersunder thisAct. Section 95AA does not apply to guidance andappeals panel reviews where remittal to the originaldecision-maker is permitted at any time duringaproceeding for review.
952. Tribunal remittal powers during the course of proceedings have beendisapplied in thisAct for ARTreview (other thanguidance and appeals panel reviews) to retain the existingarrangements concerning remittal powers at the AAT. This section isintended to support timely resolution of matters and avoid Tribunalremittal decisions that could prolong resolution. In socialsecurity matters, it is more appropriate for the Tribunal to onlyremit adecision to the decision-maker forreconsideration when that remittal is adecision on review tofinalise the matter.
Requesting reasons for decision
953. This itemalso inserts subsection95AB.Subsection95AB operates instead of clause268 of theARTBill which allows persons whose interests are affected bya reviewable decision to request astatement of reasons fromthe decision-maker within astandard timeframe. Theeffect of subsection95ABretains the effect ofsubsection28(1AAA) of the AATAct which preventsaperson from applying to receive astatement of reasonsfor adecision made at the Social Security and Child SupportDivisionof the AAT under subsection28(1) of theAATAct. This policy reflects the sensitive nature ofinformation that may form the basis of such decisions. This policyprotects the privacy of parties to social security review at theTribunal and ensures that information about decisions cannot beobtained by persons who were not arelevant party to thatreview.
954. To clarify, this itemdoes not affect aperson’sautomatic entitlement under the ARTBill to receiveawritten statement of reasons where they are aparty tothat relevant ART review matter and decision.
Legal or financial assistance
955. This itemalso creates section95AC, which provides thataperson who applies to the Tribunal for review ofadecision under thisAct cannot make an application tothe Attorney-General for legal or financial assistance (underclause294 of the ARTBill).Section95ACclarifies that aperson may apply forlegal or financial assistance if the application is in relation toamatter that is being considered by the guidance and appealspanel for review.
956. This itemretains the effect of subsection69(3) of theAATAct in which an application for legal assistance to theAttorney-General is not currently available in the SocialServices and Child Support Divisionof the AAT (but isotherwise allowed for AAT second review matters).
Item76: After subsection95B(1)
Variation of original decision afterapplication is referred to the guidance and appeals panel
957. This item inserts new subsection 95B(1AA) into the Act, whichprovides that, if the President refers an application to theguidance and appeals panel under clause122 of theARTBill, clause31 of the ARTBill applies afterthat referral is made. Clause 31 of the ARTBill provides thatonce an application to the Tribunal has been made, only theTribunal may alter the decision under review, unless the parties tothe proceeding and the Tribunal consent, or the decision has beenremitted to the decision-maker under clause85.
958. A decision-maker can vary or substitute certain decisions under theAct after an application for review of a decision is made to theTribunal. Where this occurs, subsection95B(1) provides thatthe Tribunal review relates to the decision as varied orsubstituted.
959. Once a referral has been made to the guidance and appeals panelbecause the President considers it raises an issue of significanceto administrative decision-making, the decision cannot be alteredexcept by the Tribunal unless the parties to the review proceedingand the Tribunal agree. This ensures that the Tribunal hasvisibility of how matters raising issues of significance toadministrative decision-making are resolved.
960. The decision-maker also cannot vary or substitute a decision afteran application for second review has been made: see proposedclause131M of the ARTBill, which provides that despitea contrary intention, clause31 of the ARTBill appliesto second reviews.
Item77: Subsection95B(3)
Variation of original decision afterapplication is made for ARTreview
961. This itemrepeals subsection95B(3).Subsection95B(3) provided an applicant with the ability towithdraw an application for AAT review if the person did not wantthe AAT to review adecision which has been varied orsubstituted. Clause 95 of the ARTBill provides apersonwith the ability to withdraw their application by awrittennotice or any other manner specified in the practice directions.Subsection 95B(3) is being repealed to support a policy ofstandardising provisions relating to administrative review acrossCommonwealth legislation where there is no need for differentprovisions to apply. This ensures provisions in the ARTBillare not duplicated or disapplied unnecessarily in other pieces oflegislation. Ultimately, this policy streamlines Tribunal processesand simplifies and improves administrative practices.
Item78: Subsection95C(1)
Procedure on receipt of application forARTreview
Item79: Subsection95H(1)
Power to obtaininformation for ARTreview
963. This itemrepeals and substitutes subsection95H(1). Itupdates terminology in the subsectionto clarify that theTribunal can require any person it believes has informationrelevant to an ARTreview to produce that information. Theeffect of substituted subsection95H(1) is broadly applicableacross all ARTreviews (including guidance and appeals panelreviews).
964. Substituted subsection95H(1) also substitutes the note torefer to clause74 of the ARTBill, concerning theTribunal’s power to summon aperson to give evidence orproduce documents.
Item80: Subsection95H(2) (penalty)
Penalties
Items81 and82: section95J (heading) andsubsection96J(1)
Terminology changes
966. These itemsmake minor terminology changes. They are technicalamendments and do not affect the operation of the law. Seeexplanation of general terminology changes above.
Item83: Section95K
Hearing of certain ART reviews inprivate
967. This itemrepeals and substitutes section95K so that aproceeding for ARTreview must be heard in private, unless theproceeding is aguidance and appeals panel proceeding. Thismaintains existing arrangements under section95K for AATfirst review matters to be heard in private.
Item 83A: Paragraph 95M(a)
Family assistance decisions
968. This item substitutes paragraph95M(a) of the Child Support (Registration andCollection) Act 1998 with newparagraph95M(a).
969. New paragraph 95M(a) provides that the Tribunal must not, on theirfirst review of the care percentage decision, vary or substitutethe decision in a way that would have the effect of varying orsubstituting the determination made in relation to care percentagedecisions if it is a family assistance decision on applicationreferred to in section 111 of this Act or proposed clause131Dof the ART Bill (second review) in relation to a family assistancedecision that the Tribunal has reviewed. This item retains currentarrangements by preserving second review for child supportdecisions.
Items84 and85: Subsection95N(1)and95N(3) (note)
Date of effect of ARTreview decisionrelating to care percentage decision
970. Item84 repeals and substitutes subsection95N(1) to makegeneral terminology changes. Paragraph95N(1)(c) excludes theoperation of subsection95N(1) from applying to guidance andappeals panel applications.
971. Item84 maintains the effect of section95N whichprovides that, if an application for review is made outside thespecified timeframes, then any AAT first review decision can onlybe taken to have effect from the day the application forARTreview was made. The date of effect set out insection95N applies unless aspecial circ*mstancesdetermination is made by the Tribunal undersubsection95N(2).
972. Item85 repeals the note under subsection95N(3). This isa consequential amendment which reflects the removal of AAT secondreview in the Tribunal and the repeal of Divisions4and5 of thisAct (see item87 below).
Item86: Sections95P and95Q
Notification of decisions and reasonsfor Tribunalreview
973. This itemrepeals section95P which provides requirementsfor the Tribunal to provide notice of and reasons for its decisionsfor certain decisions under the Act. The provision is not necessaryas clause266 of the ARTBill provides generalrequirements for the Tribunal to provide notice of and reasons forits decision on a review of a decision. The effect of repealingsection 95P is that clause 266 of the ART Bill will apply.
Repeal of Presidentd irections by legislative instrument
974. This itemalso repeals section95Q because the Presidentno longer requires a power to make directions by legislativeinstrument in relation to the conduct of ART reviews. The Presidenthas the general and broad power to make practice directions underPart4 Division3 of the ARTBill.
Items87 and88: Divisions4 and5 ofPartVIIA and Division6 of PartVIIA (heading)
Removal of AAT second review
976. Item88 is atechnical structural change to theActthat repeals the heading of Division6 of PartVIIA whichis no longer necessary once Divisions4 and5 of thisPartare repealed and the concept of AAT second review isremoved.
Items89 and90: Division4 - Appeals andreferences of questions of law
Divisionconcerning appeals to FCFCOA(Division2)
977. Item89 inserts a heading - ‘Division4 -Appeals and references of questions of law’ beforesection98D of thisAct.
978. Item90 adds section99 at the end of PartVIIA.Section99 is equivalent to section44AAA of theAATAct which provides for child support decisions at the AATto be appealed directly to the FCFCOA (Division2). It enablesa party to a Tribunal proceeding to appeal a decision of theTribunal on a question of law to the FCFCOA (Division2). Thesubsectionscreated by section99 provide:
· a party to a proceeding for ARTreview may appeal the Tribunaldecision to the FCFCOA (Division2) on aquestion oflaw.
· a party may not appeal a Tribunal decision to the FCFCOA if thedecision was made by the Tribunal constituted by aJudge orDeputy President.
· that certain provisions of the ARTBill operate in the sameway as they would if the appeal were under clause172 of theARTBill to appeal on aquestion of law to the FCA.
979. A party may still appeal adecision of the Tribunal on aquestion of law to the FCA under clause 172 of theARTBill.
980. These amendments have been made because section44AAA of theAATAct is repealed and not replicated in the ARTBill.This reflects the policy to relocate necessary special proceduresor provisions for particular cohorts of applicants from theAATAct to relevant portfolio legislation.
Item91: Paragraph110P(2)(b) and(c),
Terminology changesand updating legislative references
981. Item 91 replaces references to sections in the AATActwith the equivalent ARTBill provision references, and makesrelevant terminology changes. These are technical amendmentsand are needed to ensure the provision continues to operate insubstantively the same way in the Tribunal.
Item 92: Paragraphs110Q(b)
Meaning of reconsideration
982. This item repeals and substitutes paragraph 110Q(b) to amend thedefinition of ‘reconsideration’ for the purposes ofthat Act.
983. New paragraph 110Q(b) provides that for the purposes of the Child Support (Registration andCollection) Act 1988 , reconsideration of a decision includesan application to the Tribunal for ART review of an objection to adecision under PartVII of the Child Support (Registration and Collection) Act1988 , or a second review of a decision on that ARTreview.
984. This item reflects the current by right second review arrangementsfor decisions for social services matters.
Item 93: Paragraph 110W(1)(b)
Technical amendment
985. This item repeals and substitutes paragraph 110W(1)(b) to theAct.
986. Subsection 110W(1) of the Child Support(Registration and Collection) Act 1988 sets out when aTribunal decision for which there is no further Tribunal reviewavailable is final for the purposes of that Act orthe Child Support(Assessment) Act 1989. New paragraph 110W(1)(b) provides that if noapplication may be made under the ART Bill for second review or to refer thedecision to the guidance and appeals panel and the other criteriain subsection 110W(1) are met, the decision is final at the end ofthe period for making an appeal to a court (assumingno appeal is made) .
987. This item sets out the interaction of the provision with secondreview and the guidance and appeals panel established in Part 5 ofthe ART Bill.
Item 94: Paragraph 110W(1A)(b)
Terminology changes and updating legislativereferences
988. Item 94 repeals and substitutes paragraph 110W(1A)(b) of the Child Support (Registration andCollection) Act 1988.
989. Subsection 110W(1A) of the Child Support(Registration and Collection) Act 1988 sets out when aTribunal decision for which there is further Tribunal reviewavailable is final for the purposes of that Act or the ChildSupport (Assessment) Act 1989 . Newparagraph110W(1A)(b) provides that if an application may bemade under the ARTBill for second review or to refer thedecision to the guidance and appeals panel and the other criteriain subsection 110W(1A) are met, the decision is final at the end ofthe period during which an application can be made for secondreview (assuming no application is made) .
Item95: After subparagraph110W(4)(b)(ii)
Determiningwhen decisions become final
990. This iteminserts subparagraph110W(4)(b)(iia) to providethat a Tribunal decision becomes final at the end of the prescribedtime period for lodging an application to refer a Tribunal decisionto the guidance and appeals panel if no application is lodgedwithin that prescribed time period.
Item96: Subsection110X(7) (definition of designated review proceedings )
Terminologychanges
991. This itemmakes relevant terminology changes to the definitionof ‘designated review proceedings’ in subsection110X(7). This is atechnical amendment. It does not affect theoperation of the law. See explanation of general terminologychanges above
Item98: Section111A
992. This item.makes general terminology changes tosection111A. Additionally, it inserts a reference to theguidance and appeals panel to clarify that a court cannot make anorder under the Child Support(Registration and Collection) Act 1988 staying or otherwiseaffecting the operation of this Act or the Child Support (Assessment) Act 1989 inrelation to decisions subject to either ART second review, orreview by the guidance and appeals panel.
Item99: Paragraph111C(1)(c)
Stay orders
993. This itemrepeals and substitutes a newparagraph111C(1)(c) to clarify that stay orders are onlyavailable to the Tribunal in relation to a guidance and appealspanel application. Parties who wish to apply for astay orderpertaining to adecision that is being considered by theTribunal (but not the guidance and appeals panel) must do so inaccordance with section111C.
DisabilityServicesAct1986
Item100: Subsection26(5) (note)
Terminology changes and updating legislativereferences
994. This note has been updated to reflect terminology and provisions inrelation to the ARTBill.
995. The legislative reference to section27A of the AATActin the note is replaced with a reference to clause 266 of theARTBill .
996. Consistent with section27A of the AATAct,clause266 of the ARTBill requires adecision-maker to notify persons who are affected by thedecision of the making of the decision and their right to have thedecision reviewed.
997. The note also states that when giving such notice, thedecision-maker is required to have regard to the mattersprescribed by the rules (if such rules have been prescribed underthe ARTBill). Section27B of the AATAct allows theAttorney-General to make a legislative instrument determininga Code of Practice for facilitating notices of decisions and aperson’s review rights. It is anticipated that any prescribedrules or their equivalent under the ARTBill will be based onthe Code of Practice for Notification of Reviewable Decisions andRights of Review made under subsection27B(1) of theAATAct.
MarriageAct 1961
Item101: Subsection34(1)
Terminology changes
998. This itemis a technical amendment. It does not change when anapplication can be made to the Tribunal under thisAct. Seeexplanation of general terminology changes above.
National Disability InsuranceSchemeAct2013
Item102: Subsection103(1) (note)
Applications to the Tribunal
999. This itemrepeals the note to subsection103(1). Thisnote is not required as existing subsection100(1) of the Actspecifies the decision-maker must give written notice of thereviewable decisions and reasons to each person directly affectedby the reviewable decision.
Item103: After subsection103(1)
Applicationsto the Tribunal
1000. This iteminserts new subsection103(1A) which providesthat an application for ART review under subsection103(1) ofthisAct may only be made by, or on behalf of, a persondirectly affected by a decision made under subsection100(6)of thisAct.
1001. This itemalso insertssubsection103(1B) so thatrequirements to give a person notice of a decision and their reviewrights, and a person’s right to request reasons for adecision, only apply to a person directly affected by a decisionmade under subsection100(6) of thisAct.
1002. This itemis a necessary amendment to bringsubsection100(6) of this Act into alignment with theinterpretation of subsections100(1) and 100(2) ofthisAct. In Deacon and National Disability InsuranceAgency [2022] AATA 3209 the AAT interpretedsubsection100(2) of the NDIS Act to require that aperson’s interests to be directly affected by a decision inorder to have standing under subsection27(1) of theAATAct.
1003. This itemdoes not prevent a participant’s plan nomineefrom making an ART review application under the NDIS Act, wherethey have the power to act on behalf of the NDIS participant( Allan and National Disability Insurance Agency [2023] AATA1270 at [18]). Clause35 of the ARTBill allows anotherperson to make an application to the Tribunal on theapplicant’s behalf.
Item104: Paragraph103(2)(c)
Updating legislative references
1004. This item updates a legislative reference to a provision of the AATAct to instead refer to the equivalent provision of the ART Bill,subclause 31(1). This item is a technical amendment and is neededto ensure these provisions continue to operate in substantively thesame way.
Paid Parental LeaveAct 2010
Items105 and106: Section4
1005. Item 105 amends terminology. See explanation of general terminologychanges above.
1006. Item 106 repeals the paragraph beginning ‘Part 5-3’ andsubstitutes a new paragraph which provides that that in somecirc*mstances prescribed by the ART Bill, a person can apply torefer a decision to the guidance and appeals panel. In othercirc*mstances, an application may be made for second review.
Items107 and108: Section6
Definitionchanges
1007. Item107 repeals definitions that reference the AAT undersection6. Item 108 updates the definitions to reflect thename and features of the Tribunal.
Item109: Section6 (definition of decision )
Terminology change
1008. This itemmakes general terminology changes. This itemisa technical amendment needed to ensure that various provisionscontinue to operate in the same way in the Tribunal. Seeexplanation of general terminology changes above.
Item110: Section6
New definitions
1009. This iteminserts adefinition for ‘guidance andappeals panel’, ‘guidance and appeals panelapplication’ and ‘guidance and appeals panelproceeding’. These terms have the same meaning as under theARTBill. This has been done to ensure the new guidance andappeals panel framework operates consistently with social securitylegislation.
Item110A: After subsection 126(1)
1010. This item inserts new subsections 126(1A) and 126(1B) to this Act.
1011. The ART Bill implements recommendations of the Robodebt RoyalCommission Report in relation to the publication of Tribunaldecisions. Under the Bill, the Tribunal can publish any of itsdecisions and would be required to publish decisions involving asignificant conclusion of law, or with significant implications forCommonwealth policy or administration.
1012. Secrecy provisions are contained in the social security law thatprohibit disclosure of protected information and would likelyprevent publication of Tribunal decisions to which that informationrelates. Exceptions to secrecy provisions as set out in subsection16(2AB) of this Act currently allow the Tribunal to publishreasons for de-identified child support tribunal decisions. Similaramendments to the Paid Parental Leave Act 2010 are requiredto ensure that de-identified paid parental leave decisions of theTribunal can also be published.
1013. New subsection 126(1A) provides that despite secrecy provisions,the Tribunal may publish reasons for a Tribunal decision on reviewso long as the publication does not identify (other than theSecretary):
· Any party to the review; or
· Any person related to, associated with a party to which the matterrelates; or
· Any witness in the review concerned.
1014. New subsection 126(1B) sets out types of information that are takento be information that identifies a person, where it is sufficientto identify that person to a member of the public to which thepublic is disseminated. This includes information on theparticulars of a person’s:
· Name, title, pseudonym or alias; or
· Address or the locality in which they reside or work; or
· Physical description; or
· Profession, occupation or calling; or
· Relationships or acquaintances;
· Interests or beliefs; or
· Real or personal property in which they have an interest orotherwise associated.
1015. These amendments are necessary as the ability for the Tribunal topublish its decisions is important to promoting public trust andconfidence in administrative decision-making and its operations andpromote transparency in decision-making. Requirements that anypublication of a Tribunal decision must be de-identified for paidparental leave matters will protect the identity of individuals andparties
Items111, 112, 113, 114 and115:Section213
Guide to this Part
1016. These itemsupdate the Guide to this Partinsection213 to align with general terminology changes. Theseitemsare technical amendments and are needed to ensure thatvarious provisions continue to operate in the same way in theTribunal.
1017. Item 113 also includes references to second review in section 213.The new paragraph provides that a person may apply to the Tribunalfor second review if the person is dissatisfied with the decisionof the Tribunal on review of an ART claimant decision.
Item117: Subsection224(1)
Terminology changes
1018. This itemmakes minor terminology changes tosubsection224(1). This itemis a technical amendmentneeded to ensure that various provisions continue to operate in thesame way in the Tribunal. See explanation of general terminologychanges above.
Item118: Aftersubsection224(1)
ARTreview of employer decision—application forreview
1019. This iteminserts subsection224(1A) to clarify thataguidance and appeals panel review is also to be consideredan ‘ARTreview’. This replaces the concept of‘AAT first review’ and ‘AAT second review’with ‘ART review’, to encompass all reviews at theTribunal. Note that clarifications have been made throughout thisSchedulewhen aprovision concerning ARTreview istaken not to apply to the guidance and appeals panel.
Item119: Paragraphs224(5)(a) and(b)
Updating legislative references
1020. This itemupdates the references to sections in theAATAct with the equivalent ARTBill provision referencesand makes relevant terminology changes. This has been done toensure the Tribunal has jurisdiction to review decisions that arereviewable by the AAT, and that various provisions continue tooperate in the same way in the Tribunal.
Item120: After section224A
Decision-maker taken to have electednot to participate in ARTreview proceeding
1021. This iteminserts section224B which operates byproviding that the Secretary is automatically taken to haveprovided an election notice to the Tribunal not to participate inany kind of proceeding for ARTreview of adecision underthis Act. The effect of this sectionis that thedecision-maker is deemed to have provided an election noticefor all proceedings for ARTreview for the review of decisionsunder thisAct, and therefore does not need to appear at anyTribunal proceeding (unless the proceeding is aguidance andappeals panel proceeding or the Tribunal has ordered or agreed thatthe decision-maker participate in the proceedings inaccordance with subclauses 62(1) or63(2) of theARTBill).
1022. The effect of this sectionis that the decision-maker isnot an active participant in the proceedings but remainsaparty to that matter (anon-participating party).This section preserves existing arrangements for parties inrelation to the conduct of AAT first review matters in whichdecision-makers do not currently participate. It aims to promoteefficiency and a more informal, less-adversarial Tribunalenvironment. The Tribunal may still directanon-participating party to do athing (such astake partin adispute resolution process).
1023. In order to participate in a proceeding, a decision-makerwould need to give written notice and obtain permission of theTribunal to participate, under clause 62 of the ARTBill. Thiscould be, for example, where an application for review raises anissue of particular interest for the agency, or where the agencyidentifies an opportunity to arrive at a negotiated outcome that isfavourable to the applicant. In these circ*mstances, enabling thedecision-maker to participate in the proceeding promotes theobjective of efficient review. Allowing the Tribunal to determinewhether the decision-maker should participate ensures that theTribunal can consider any concerns other parties may have inrelation to the decision-maker participating. Together withclause64 of the ART Bill, it also helps to promote certaintyand predictability about the participation of the decision-maker inparticular kinds of proceedings.
Item121: Section225, 225A, 225B and225C
Operation and implementation of decisionunder ARTreview
1024. This itemrepeals and substitutes section225 so that theTribunal is unable to make an order staying or otherwise affectingthe operation and implementation of the decision before theTribunal makes its final decision. Substituted section225 isequivalent to section225 which operates instead ofsubsection41(2) of the AATAct in relation to reviewapplications at the Social Services and Child Support Division.However, substituted section225 does not apply if theproceeding is a guidance and appeals panels application. In thosecirc*mstances, the Tribunal may make an order staying or otherwiseaffecting the operation of the decision. This preserves existingarrangements that prohibit Tribunal stay order for AAT firstreview, but allows Tribunal stay orders to be made at AAT secondreview.
Remitting decisions for reconsideration
1025. This iteminserts section225A, to make it clear that theTribunal’s power to remit adecision to thedecision-maker for reconsideration at any time duringaproceeding for review (as allowed for in the ARTBillat clause 85) does not apply in relation to ARTreview mattersunder thisAct. Section 225A does not apply to guidance andappeals panel reviews where remittal to the originaldecision-maker is permitted at any time duringaproceeding for review.
1026. Tribunal remittal powers during the course of proceedings have beendisapplied in thisAct for ARTreview (other thanguidance and appeals panel reviews) to retain the existingarrangements concerning remittal powers at the AAT. This section isintended to support timely resolution and avoid Tribunal remittaldecisions where it could prolong resolution. In socialsecurity matters, it is more appropriate for the Tribunal to onlyremit adecision to the decision-maker forreconsideration when that remittal is adecision on review tofinalise the matter.
Requesting reasons for decision
1027. This itemalso inserts subsection225B.Subsection225B operates instead of clause268 of theARTBill which allows persons whose interests are affected byareviewable decision to request astatement of reasonsfrom the decision-maker within astandard timeframe. Theeffect of subsection225Bretains the effect ofsubsection28(1AAA) of the AATAct which preventsaperson from applying to receive astatement of reasonsfor adecision made at the social security and child supportDivisionof the AAT under subsection28(1) of theAATAct. This reflects the sensitive nature of informationthat may form the basis of such decisions. This policy protects theprivacy of parties to social security review at the Tribunal andensures that information about decisions cannot be obtained bypersons who were not aparty to that review.
1028. To clarify, this itemdoes not affect aperson’sautomatic entitlement under the ARTBill to receiveawritten statement of reasons where they are aparty tothat relevant ART review matter and decision.
Legal or financial assistance
1029. This itemcreates section225C which provides thataperson who applies to the Tribunal for review ofadecision under thisAct cannot make an application tothe Attorney-General for legal or financial assistance underclause 294 of the ARTBill. Section225Cclarifiesthat aperson may apply for legal or financial assistance ifthe application is in relation to amatter that is beingconsidered by the guidance and appeals panel.
1030. This itemretains the effect of subsection69(3) of theAATAct in which an application for legal assistance to theAttorney-General is not currently available in the SocialServices and Child Support Divisionof the AAT (but isotherwise allowed for AAT second review matters).
Item122: Subsection226(2)
Variation of original decision afterapplication is referred to the guidance and appeals panel
1031. This item inserts new subsection 226(1A) which provides that, ifthe President refers an application to the guidance and appealspanel under clause 122 of the ART Bill, clause 31 of the ART Billapplies after that referral is made. Clause 31 of the ARTBill provides that once an application to the Tribunal has beenmade, only the Tribunal may alter the decision under review, unlessthe parties to the proceeding and the Tribunal consent, or thedecision has been remitted to the decision-maker under clause85.
1032. A decision-maker can vary or substitute certain decisions underthis Act after an application for review of a decision is made tothe Tribunal. Where this occurs, subsection 226(1) provides thatthe Tribunal review relates to the decision as varied orsubstituted. This amendment also disapplies subsection 226(1) ofthe Act in circ*mstances where new subsection 226(1A) applies.
1033. Once a referral has been made to the guidance and appeals panelbecause the President considers it raises an issue of significanceto administrative decision-making, the decision cannot be alteredwithout the agreement of the Tribunal. This ensures that theTribunal has visibility of how matters raising issues ofsignificance to administrative decision-making are resolved.
1034. The decision-maker also cannot vary or substitute a decision afteran application for second review has been made: see proposed clause131M of the ART Bill, which provides that despite a contraryintention, clause 31 of the ART Bill applies to secondreviews.
Items123 and124: Subsections227(1)and227(3)
Terminology changes and updating legislativereferences
1035. These itemsupdate terminology. They replace references tosections in the AATAct with the equivalent provision of theARTBill. This is atechnical amendment and does notaffect the operation of the law. See explanation of generalterminology changes above.
Items125, 126, 127 and128: Section230
Terminology changes and penalties
1036. These itemsmake general terminology changes tosection230. This is atechnical amendment. It does notaffect the operation of the law. See explanation of generalterminology changes above.
1037. Item 128 repeals the existing penalty for failing to comply with asummons notice. The penalty has been reduced to imprisonment forsixmonths or 30penalty units, or both, to align withpenalties for failing to comply with a summons underclause116 of the ARTBill. This penalty level isconsistent with the approach to penalties for failure to complywith a summons that are set out in Part9.4 of the Guide toOffences.
Items129 and130: Section231
Terminology changes
1038. These itemsupdate terminology in section231. These aretechnical amendments and do not affect the operation of the law.See explanation of general terminology changes above.
Item131: Section232
Hearing of ARTreview in private
1039. This itemrepeals and substitutes section232 so thataproceeding for ARTreview must be heard in private,unless the proceeding is aguidance and appeals panelproceeding. This maintains existing arrangements for AAT firstreview matters to be heard in private.
Item132: Subsection233(3)
Terminology changes
1040. This itemmakes general terminology changes tosubsection233(3). This is atechnical amendment. It doesnot affect the operation of the law.
Item133: Subsection234(3)
Updating legislative references
1041. This itemupdates references to sections in the AATActwith the equivalent ARTBill provision references. This isatechnical amendment and does not affect the operation of thelaw. See explanation of general terminology changes above.
Item134: Section235
Notificationof decisions and reasons for Tribunal review
1042. This itemrepeals section235 which provides requirementsfor the Tribunal to provide notice of and reasons for its decisionsfor certain decisions under the Act. The provision is not necessaryas clause266 of the ARTBill provides generalrequirements for the Tribunal to provide notice of and reasons forits decisions on a review of a decision. The effect of repealingsection235 is that clause266 of the ARTBill willapply.
Item135: Part5-3
Removal of AAT second review
1043.
1044. These items repeal Part 5-3 of this Act. This is required as theconcept of ‘AAT second review’ has been removed fromsocial services legislation and placed within proposed Part 5A ofthe ART Bill.
SocialSecurityAct1991
Items136, 137 and138: Subsection23(1)
Updating definitions and legislativereference
1045. These itemsreplace references to the AAT in the definitionsin subsection23(1) to reflect terminology changes. Seeexplanation of general terminology changes above.
1046. Item138 also inserts anew note which refers the readerto the definition of ‘decision’ in theARTBill.
Item139: Subsection1061ZZFL(2)
Terminology changes and updating legislativereferences
1047. This itemupdates terminology and replaces reference tosections in the AATAct with the equivalent provision of theARTBill. See explanation of general terminology changesabove.
Item140: Paragraphs1223AB(a) and(b)
Terminology changes and updating legislativereferences
1048. This itemupdates terminology and replaces reference tosections in the AATAct with the equivalent provision of theARTBill. See explanation of general terminology changesabove.
Social Security(Administration)Act1999
Items141 and142: Subsection138D(6) (note) andsubsection138F(7) (note)
Updating legislative references
1049. These itemsreplace references to sections of the AATActin the notes to subsections138D(6) and138F(7) withreferences to the equivalent provisions of the ARTBill. Seeexplanation of general terminology changes above.
Items143, 144, 145, 146: Section139
Terminology changes and updating legislativereferences
1050. These itemsupdate terminology in the simplified outline ofthis Part. Minor language amendments have been made to reflectmodern drafting practices. See explanation of general terminologychanges above.
1051. Item 144 inserts references to second review in section 139. Thenew paragraph provides that a person may apply to the Tribunal forsecond review if the person is dissatisfied with the decision ofthe Tribunal on review.
Item 147 : Subsection142(1)
Terminology change
1052. Item147 updates terminology. See explanation of generalterminology changes above.
Item149: After section142A
Decision-maker taken to have electednot to participate in ARTreview proceeding.
1053. This iteminserts section142B, which operates byproviding that the decision-maker is automatically taken to haveprovided an election notice to the Tribunal not to participate inany kind of proceeding for ARTreview of adecision underthis Act. The effect of this sectionis that thedecision-maker is deemed to have provided an election noticefor all proceedings for ARTreview for the review of decisionsunder thisAct, and therefore does not need to appear at anyTribunal proceeding (unless the proceeding is aguidance andappeals panel proceeding or the Tribunal has ordered or agreed thatthe decision-maker participate in the proceedings inaccordance with subclauses 62(1) or63(2) of theARTBill).
1054. The effect of this sectionis that the decision-maker isnot an active participant in the proceedings but remainsaparty to that matter (anon-participating party).This section preserves existing arrangements for parties inrelation to the conduct of AAT first review matters in whichdecision-makers do not currently participate. It aims to promoteefficiency and a more informal, less-adversarial Tribunalenvironment. The Tribunal may still directanon-participating party to do athing (such astake partin adispute resolution process).
1055. In order to participate in a proceeding, a decision-makerwould need to give written notice and obtain permission of theTribunal to participate, under clause 62 of the ARTBill. Thiscould be, for example, where an application for review raises anissue of particular interest for the agency, or where the agencyidentifies an opportunity to arrive at a negotiated outcome that isfavourable to the applicant. In these circ*mstances, enabling thedecision-maker to participate in the proceeding promotes theobjective of efficient review. Allowing the Tribunal to determinewhether the decision-maker should participate ensures that theTribunal can consider any concerns other parties may have inrelation to the decision-maker participating. Together withclause64 of the ART Bill, it also helps to promote certaintyand predictability about the participation of the decision-maker inparticular kinds of proceedings.
Item150: SubdivisionC of Division2 ofPart4A (heading)
Terminology changes
1056. This itemmakes terminology changes to the heading atSubdivisionC, Division2, Part4A of thisAct.See explanation of general terminology changes above.
Items151, 152, 153, 154, 155, 156, 157, 158, 159, 160,161, 162, 163, 164, 165, 166, 167, 168: Table atSection147
Application and modification ofARTBill
1057. These itemsmake amendments to itemsin the table atsection147 to ensure that various provisions continue tooperate in the same way in the Tribunal .
Terminology changes and technicalamendments
1058. Items151, 152, 153, 154, 155, 156, 158, 159, 160, 161, 164and165 are all terminology and legislative reference updates.See explanation of general terminology changes above.
Hearing of ARTreview in private andstay orders
1059. Item157 repeals item2 in the table which currentlydisapplies the existing public and private hearings requirementunder the AATAct. This is anecessary amendment to allowpublic hearings for guidance and appeals panel proceedings. Theexisting effect of requiring private hearings for AAT first reviewmatters under thisAct is replicated in item174 below.Item174 ensures an ARTreview must be heard in private,unless the proceeding is aguidance and appeals panelproceeding.
1060. Item157 also repeals item4 in the table which currentlydisapplies Tribunal powers to issue stay orders under theAATAct. This is anecessary amendment to allow stayorders to be made in relation to aguidance and appeals panelapplication.
Employment pathway decisions
1061. Item162 inserts table item6A concerning employmentpathway plan decisions. This is anecessary amendment due tostructural changes to provisions in the ARTBill. Thisamendment has the effect of retaining the effect of existing tableitem6, so that the Tribunal cannot make adecision tovary or substitute an employment pathway plan decision.
Reasons for decisions
1062. Item163 repeals item7 in the table which providesrequirements for the Tribunal to provide notice of and reasons forits decisions for certain decisions under the Act. The provision isnot necessary as clause266 of the ARTBill providesgeneral requirements for the Tribunal to provide notice of andreasons for its decision on review of a decision. The effect ofrepealing item7 in this table is that clause266 of theARTBill will apply. This is aconsequential amendmentdue to the repeal of section178 by item175 below.
Date of effect provisions
1063. Item 165 substitutes the cell at table item 8, column headed"Provision of AAT Act" to update a legislative reference fromsubsection 43(6) of the AATAct to a reference to subclauses108(4) and 108(5) of the ART Bill. This amendment istechnical in nature and ensures that this provision continues tooperate in substantively the same way in the Tribunal.
1064. Item166 repeals and substitutes the cell at tableitem8, column headed “Application or modification ofprovision of AAT Act”. This is asubstantive amendmentto clarify that date of effect provisions under thisAct applyconsistently and appropriately to Tribunal decisions. Thisamendment also makes terminology changes. See explanation ofgeneral terminology changes above.
1065. The effect of the amendment is to provide that a decision of theTribunal to vary or set aside a decision takes effect from the daythe person made the first review application, including incirc*mstances where second review is conducted, if the applicationwas made more than 13 weeks after they were given written notice ofthe decision under social security law. This ensures that a personwho makes an application for review at the Tribunal, and does sowithin the 13-week timeframe, is not unfairly impacted by the dateof effect rules should they make a second review application inrelation to the decision at a later time and the Tribunal varies orsubstitutes the decision under review.
1066. If the person applies to the Tribunal less than 13 weeks from whenthey were notified of the decision, the varied or substitutedTribunal decision will take effect from when the decision underreview was made.
1067. Item8 only applies where the decision to vary or set asideadecision has the effect of granting, making adirectpayment of, or increasing the rate of aperson’s socialsecurity payment or issue of aconcession card.
1068. Item168 is aclarifying provision in relation toitem8, and uses the term ‘first reviewapplication’ to refer to the application for ART review ofareviewable decision.
Reasons for decisions
1069. Item167 adds table item9 operate instead of clause 268of the ARTBill. The effect of table item9 retains theeffect of subsection28(1AAA) of the AATAct whichprevents aperson from applying to receive astatement ofreasons for adecision made at the social security and childsupport Divisionof the AAT under subsection28(1) of theAATAct. This reflects the sensitive nature of informationthat may form the basis of such decisions. This policy protects theprivacy of parties to social security review at the Tribunal andensures that information about decisions cannot be obtained bypersons who were not arelevant party to that review.
1070. To clarify, item167 of this Scheduledoes not affectaperson’s automatic entitlement under the ARTBillto receive awritten statement of reasons where they areaparty to that relevant ART review matter and decision.
Item169: At the end of SubdivisionC ofDivision2 of Part4A
Operation and implementation of decisionunder ART review
1071. This itemcreates section147A so that the Tribunal isunable to make an order staying or otherwise affecting theoperation and implementation of the decision before the Tribunalmakes its final decision. Section147A replicates the effectof existing table item4 in section147, which operatesinstead of subsection41(2) of the AATAct. ]
Remitting decisions for reconsideration
1072. This iteminserts section147B, to make it clear that theTribunal’s power to remit adecision to thedecision-maker for reconsideration at any time duringaproceeding for review (as allowed for in the ARTBillat clause 85) does not apply in relation to ARTreview mattersunder thisAct.
1073. Tribunal remittal powers during the course of proceedings have beendisapplied in thisAct for ARTreview (other thanguidance and appeals panel reviews) to retain the existingarrangements concerning remittal powers at the AAT. This section isintended to support timely resolution of matters and avoid remittalwhere it might prolong resolution. In social securitymatters, it is more appropriate for the Tribunal to only remitadecision to the decision-maker for reconsiderationwhen that remittal is adecision on review to finalise thematter.
Legal or financial assistance
1074. This itemcreates section147C which provides thataperson who applies to the Tribunal for review ofadecision under thisAct cannot make an application tothe Attorney-General for legal or financial assistance underclause 294 of the ARTBill. Section147Cclarifiesthat aperson may apply for legal or financial assistance ifthe application is in relation to amatter that is beingconsidered by the guidance and appeals panel.
1075. This itemretains the effect of subsection69(3) of theAATAct in which an application for legal assistance to theAttorney-General is not currently available in the SocialServices and Child Support Divisionof the AAT (but isotherwise allowed for AAT second review matters).
Item170: Subsection148(1)
Procedure on receipt of application for ARTreview
1076. This itemrepeals and substitutes subsection148(1) toupdate terminology but otherwise retains the effect ofsubsection148(1) so that the Tribunal may, in relation to anapplication for ART review, request the Secretary to lodge certaindocuments with the Tribunal.
Item171: Section 165A (heading)
Terminology changes
1077. This itemupdates terminology to the heading ofsection165A. See explanation of general terminology changesabove.
Item172: Subsection165A(1)
Tribunal power to obtain information onreview
1078. This itemrepeals and substitutes subsection165A(1) sothat the Tribunal can require any person who it believes hasinformation relevant to an ART review to produce that information.While previously this was only applicable to AAT first review, thisis now broadly applicable across all ART reviews (includingguidance and appeals panel reviews).
1079. This itemincludes a note which directs the reader toclause74 of the ARTBill which deals with theTribunal’s power to summon a person to give evidence orproduce documents.
Item173: Subsection165A(2) (penalty)
Penalties
1080. This itemrepeals the existing penalty for failing to complywith a summons notice. The penalty has been reduced to imprisonmentfor sixmonths or 30penalty units, or both, to alignwith the penalty for failing to comply with a summons underclause116 of the ARTBill. This penalty level isconsistent with the approach to penalties for failure to complywith a summons that are set out in Part9.4 of the Guide toOffences.
Item174: Section168
Hearing of certain ART reviews inprivate
1081. This itemrepeals and substitutes section168 so aproceeding for ART review must be heard in private, unless theproceeding is a guidance and appeals panel proceeding. Thismaintains existing arrangements under section168 for AATfirst review matters to be heard in private.
Item175: Section178
Notification of decision and statement ofreason
1082. This itemrepeals section178 which provides requirementsfor the Tribunal to provide notice of and reasons for its decisionsfor certain decisions under the Act. The provision is not necessaryas clause266 of the ARTBill provides generalrequirements for the Tribunal to provide notice of and reasons forits decisions on a review of a decision. The effect of repealingsection178 is that clause266 of the ARTBill willapply.
Items176 and177: Division3 of Part4Aand Division4 of Part4A (heading)
Removal of AAT second review
1083. Item176 repeals Division3 of Part4A ofthisAct in its entirety to reflect the removal of the conceptof ‘AAT second review’. The ability to seek furthertribunal review of matters will occur through the guidance andappeals panel framework that is established in theARTBill.
1084. Item177 is atechnical structural change to theActthat repeals the subheading at Division4 of Part4A ofthisAct. The subheading is no longer necessary due to therepeal of Division3 of Part4A by item176 and theremoval of AAT second review.
Item178: Subsections182(2) and(3)
Variation oforiginal decision after application is made for AAT firstreview
1085. This item repeals subsections 182(2) and (3) and substitutes a newsubsection 182(2).
1086. A decision-maker can vary or substitute a decision under this Actafter an application for review of a decision is made to theTribunal. Where this occurs, subsection 182(1) provides that theTribunal review relates to the decision as varied orsubstituted.
1087. New subsection (2) provides that if the President of the Tribunalrefers the application to the guidance and appeals panel underclause 122 of the ART Bill, clause 31 of the ART Bill applies. Thatis, once a referral has been made to the guidance and appeals panelbecause the President considers it raises an issue of significanceto administrative decision-making, the decision cannot be alteredexcept by the Tribunal unless the parties to the review proceedingand the Tribunal agree. This ensures that the Tribunal hasvisibility of how matters raising issues of significance toadministrative decision-making are resolved.
1088. The decision-maker also cannot vary or substitute a decision afteran application for second review has been made (see clause 131M ofthe ART Bill, which provides that despite a contrary intention,clause 31 of the ART Bill applies to second reviews).
Items179 and180: Subsections183(1)and183(2)
Removal of AAT second review
1089. These itemsreflect the removal of AAT second review and thetechnical structural change to section183 by the repeal ofsubsection183(2).
Items180A: After subsection 201(1)
Publishing reasons for a Tribunaldecision
1090. This item inserts new subsections 201(1A) and (1B) to the Social Security (Administration) Act1999 .
1091. The ART Bill implements recommendations of the Robodebt RoyalCommission Report in relation to the publication of Tribunaldecisions. Under the ART Bill, the Tribunal can publish any of itsdecisions and would be required to publish decisions involving asignificant conclusion of law, or with significant implications forCommonwealth policy or administration.
1092. Secrecy provisions are contained in the social security law thatprohibit disclosure of protected information and would likelyprevent publication of Tribunal decisions to which that informationrelates. Exceptions to secrecy provisions as set out in subsection16(2AB) of the Child Support(Registration and Collection) Act 1988 currently allow theTribunal to publish reasons for de-identified child supporttribunal decisions. These amendments to the Social Security (Administration) Act 1999 ensure that de-identified social security decisions of the Tribunalcan also be published.
1093. New subsection 201(1A) provides that despite secrecy provisions,the Tribunal may publish reasons for a Tribunal decision on reviewso long as the publication does not identify (other than theSecretary):
· Any party to the review; or
· Any person related to, associated with a party to which the matterrelates; or
· Any witness in the review concerned.
1094. New subsection 201(1B) sets out types of information that are takento be information that identifies a person, where it is sufficientto identify that person to a member of the public to which thepublication is disseminated. This includes information on theparticulars of a person’s:
· name, title, pseudonym or alias; or
· address or the locality in which they reside or work; or
· physical description; or
· profession, occupation or calling; or
· relationships or acquaintances; or
· interests or beliefs; or
· real or personal property in which they have an interest orotherwise associated.
Items181 and182: Subclause1(1) ofSchedule1
Updatingdefinitions
1095. This itemupdates definitions under subclause1(1) ofSchedule1 to reflect terminology changes. See explanation ofgeneral terminology changes above.
Student AssistanceAct 1973
Items183 and184: Subsection3(1)
Updatingdefinitions
1096. These itemsupdate definitions under subsection5(1) toreflect terminology changes. See explanation of general terminologychanges above.
Item185: Subsection12ZQ(2)
Reviewof decision of Commissioner
1097. This itemrepeals and substitutes subsection12ZQ(2).This itemmakes general terminology changes and updatesreferences to sections in the AATAct with references to theequivalent provisions in the ARTBill. This retainsarrangements under thisAct and allows applicants makingstudent assistance applications to seek astatement of reasonsfrom the original decision-maker.
Item186: Subsection43X(3) (definition of decision )
Updating Definition
1098. This itemsubstitutes the definition of ‘decision’in the AATAct with its meaning under the ARTBill. Thisis a technical amendment and does not affect the operation of thelaw.
Item187: Paragraph304(2)(a)
Timeframe for application for review
1099. This itemomits ‘13weeks’ and substitutes‘90days’ at paragraph304(2)(a). Theseitemsstandardise the timeframe to apply for review of certaindecisions, in order to create a consistent timeframe across similarapplications for review of decisions.
Items188 and189: Subsection308D(6) (note) andSubsection308F(7) (note)
Updating legislative references
1100. These itemsupdate the notes so references to sections in theAATAct are replaced with the equivalent clause under the ARTBill .These are technical amendments and do not affect the operation ofthe law. See explanation of general terminology changes above.
Items192, 193, 194 and195: Section309
Terminology changes
1101. These itemsmake terminology updates to the simplified outlinein section309. These are technical amendments and do notaffect the operation of the law. See general terminology changesabove.
1102. Item193 repeals the paragraph beginning with ‘If aperson is dissatisfied with adecision of the AAT’ andsubstitutes it with ‘If a person is dissatisfied with adecision of the ART on ART review, the person may apply to the ARTfor second review’.
Item196: Subsection311(1)
Terminology changes
1103. This itemmakes terminology changes to subsection311(1).This is a technical amendment and does not affect the operation ofthe law. See general terminology changes above.
Item198: After section311A
Decision-maker taken to have electednote to participate in ART review proceeding
1104. This iteminserts section311B which operates byproviding that the Secretary is automatically taken to haveprovided an election notice to the Tribunal not to participate inany kind of proceeding for ARTreview of adecision underthis Act. The effect of this sectionis that thedecision-maker is deemed to have provided an election noticefor all proceedings for ARTreview for the review of decisionsunder thisAct, and therefore does not need to appear at anyTribunal proceeding (unless the proceeding is aguidance andappeals panel proceeding or the Tribunal has ordered or agreed thatthe decision-maker participate in the proceedings inaccordance with subclauses 62(1) or63(2) of theARTBill).
1105. The effect of this sectionis that the decision-maker isnot an active participant in the proceedings but remainsaparty to that matter (anon-participating party).This section preserves existing arrangements for parties inrelation to the conduct of AAT first review matters in whichdecision-makers do not currently participate. It aims to promoteefficiency and a more informal, less-adversarial Tribunalenvironment. The Tribunal may still directanon-participating party to do athing (such astake partin adispute resolution process).
1106. In order to participate in a proceeding, a decision-makerwould need to give written notice and obtain permission of theTribunal to participate, under clause 62 of the ARTBill. Thiscould be, for example, where an application for review raises anissue of particular interest for the agency, or where the agencyidentifies an opportunity to arrive at a negotiated outcome that isfavourable to the applicant. In these circ*mstances, enabling thedecision-maker to participate in the proceeding promotes theobjective of efficient review. Allowing the Tribunal to determinewhether the decision-maker should participate ensures that theTribunal can consider any concerns other parties may have inrelation to the decision-maker participating. Together withclause64 of the ART Bill, it also helps to promote certaintyand predictability about the participation of the decision-maker inparticular kinds of proceedings.
Items199 and200: Paragraph312(1)(a) andsubsection312(2)
Timeframe for application for review
1107. Item199 omits ‘13weeks’ and substitutes‘90days’ at paragraph312(1)(a). Theseitemsstandardise the timeframe to apply for review of certaindecisions, in order to create a consistent timeframe across similarapplications for review of decisions.
1108. Item200 makes technical amendments at subsection312(2)to update references to sections in the AATAct withequivalent references in the ARTBill.
Item201: Section313
Operation and implementation of decisionunder ART review
1109. This itemrepeals and substitutes section313 so that theTribunal is unable to make an order staying or otherwise affectingthe operation and implementation of the decision before theTribunal makes its final decision. Substituted section313 isequivalent to section313 which operates instead ofsubsection41(2) of the AATAct in relation to reviewapplications at the Social Services and Child Support Division.
Remitting decisions for reconsideration
1110. This iteminserts section313A, to make it clear that theTribunal’s power to remit adecision to thedecision-maker for reconsideration at any time duringaproceeding for review (as allowed for in the ARTBillat clause 85) does not apply in relation to ARTreview mattersunder thisAct. Section 313A does not apply to guidance andappeals panel reviews where remittal to the originaldecision-maker is permitted at any time duringaproceeding for review.
1111. Tribunal remittal powers during the course of proceedings have beendisapplied in thisAct for ARTreview to retain theexisting arrangements concerning remittal powers at the AAT. Thissection is intended to support timely resolution and avoid remittalwhere it might prolong resolution. In social security matters, itis more appropriate for the Tribunal to only remit adecisionto the decision-maker for reconsideration when that remittalis adecision on review to finalise the matter.=
Requesting reasons for decision
1112. This itemalso inserts subsection313B.Subsection313B retains the effect of subsection28(1AAA)of the AATAct which prevents aperson from applying toreceive astatement of reasons for adecision made at theSocial Security and Child Support Divisionof the AAT undersubsection28(1) of the AATAct. This reflects thesensitive nature of information that may form the basis of suchdecisions. This policy protects the privacy of parties to socialsecurity review at the Tribunal and ensures that information aboutdecisions cannot be obtained by persons who were notarelevant party to that review.
1113. To clarify, this itemdoes not affect aperson’sautomatic entitlement under the ARTBill to receive a writtenstatement of reasons where they are aparty to that relevantART review matter and decision.
Legal or financial assistance
1114. This itemcreates section313C which provides thataperson who applies to the Tribunal for review ofadecision under thisAct cannot make an application tothe Attorney-General for legal or financial assistance underclause294 of the ARTBill.Section313Cclarifies that aperson may apply forlegal or financial assistance if the application is in relation toamatter that is being considered by the guidance and appealspanel.
1115. This itemretains the effect of subsection69(3) of theAATAct in which an application for legal assistance to theAttorney-General is not currently available in the SocialServices and Child Support Divisionof the AAT (but isotherwise allowed for AAT second review matters).
Item202: Subsection315(2)
Variation oforiginal decision after application is made for ARTreview
1116. A decision-maker can vary or substitute a decision under this Actafter an application for review of a decision is made to the AAT.Where this occurs, current subsection315(1) provides that theapplication relates to the decision as varied or substituted.
1117. Current subsection315(2) provides that the applicant maydiscontinue or withdraw their application if they do not wish theAAT to continue reviewing the varied or substituted decision.
1118. New subsection 315(2), as substituted by this item, provides thatif the President of the Tribunal refers the application to theguidance and appeals panel under clause 122 of the ART Bill, clause31 of the ART Bill applies. That is, once a referral has been madeto the guidance and appeals panel because the President considersit raises an issue of significance to administrativedecision-making, the decision cannot be altered except by theTribunal unless the parties to the review proceeding and theTribunal agree. This ensures that the Tribunal has visibility ofhow matters raising issues of significance to administrativedecision-making are resolved.
1119. The decision-maker also cannot vary or substitute a decision afteran application for second review has been made (see clause 131M ofthe ART Bill, which provides that despite a contrary intention,clause 31 of the ART Bill applies to second reviews).
Item202A: Section 315A
Hearing of certain Tribunal hearings inprivate
1120. This item inserts new section 315A to the Student Assistance Act 1973 so that Tribunalreviews of decision made under that Act must be heard in private,unless the proceeding is a guidance and appeals panel proceeding.This ensures that the right to privacy is afforded to studentassistance matters, making private hearings the default positionfor Tribunal reviews across the social security portfolio. Thisamendment also standardises procedural requirements for similartypes of reviews, ensuring efficiency for the Tribunal.
Item203: Section317
Terminology changes and updating legislativereferences
1121. This itemupdates terminology and replaces references tosections in the AATAct with the equivalent clause of theARTBill. It is atechnical amendment and does not affectthe operation of the law. See explanation of general terminologychanges above.
Item204: Section318
Notification of decisions and statement of reasons for Tribunalreview
1122. This itemrepeals section318 which provides requirementsfor the Tribunal to provide notice of decisions and reasons for itsdecisions for certain decisions under the Act. The provision is notnecessary as clause266 of the ARTBill provides generalrequirements for the Tribunal to provide notice of and reasons forits decisions on a review of a decision. The effect of repealingsection318 is that clause266 of the ARTBill willapply.
Items205 and206: Section319
Terminology changes and updating legislativereferences
1123. These itemsupdate terminology and replace references tosections in the AATAct with the equivalent clauses of theARTBill. They are technical amendments and do not affect theoperation of the law. See explanation of general terminologychanges above.
Item207: SubdivisionC of Division2 ofPart9
Removal of AAT second review
968. Item 207 repealsSubdivisionC of Division2 of Part9 of this Act.This is required as the concept of ‘AAT second review’has been removed from social services legislation and placed withinproposed Part 5A of the ART Bill.
Item207A: Section 350
Technical amendment
1124. This item amends section 350 of the Student Assistance Act 1973 . The item makesminor technical amendments by inserting "(1)" before "Nothing in".This item also inserts new subsections 350(2) and 350(3).
Item 207B: Section 350
Publishing reasons for Tribunaldecisions
1125. The ART Bill implements recommendations of the Robodebt RoyalCommission Report in relation to the publication of Tribunaldecisions. Under the ART Bill, the Tribunal can publish any of itsdecisions and would be required to publish decisions involving asignificant conclusion of law, or with significant implications forCommonwealth policy or administration
1126. Secrecy provisions are contained in the social security law thatprohibit disclosure of protected information and may preventpublication of Tribunal decisions to which that informationrelates. Exceptions to secrecy provisions as set out in subsection16(2AB) of the Child Support(Registration and Collection) Act 1988 currently allow theTribunal to publish reasons for de-identified child supportTribunal decisions. These amendments to the Student Assistance Act 1973 are required toensure that de-identified student assistance decisions of theTribunal can also be published.
1127. New subsection 350(2) provides that despite secrecy provisions, theTribunal may publish reasons for a Tribunal decision on review solong as the publication does not identify (other than theSecretary):
· any party to the review; or
· any person related to, associated with a party to which the matterrelates; or
· any witness in the review concerned.
1128. New subsection 350(3) sets out types of information that are takento be information that identifies a person, where it is sufficientto identify that person to a member of the public to which thepublication is disseminated. This includes information on theparticulars of a person’s:
· name, title, pseudonym or alias; or
· address or the locality in which they reside or work; or
· physical description; or
· profession, occupation or calling; or
· relationships or acquaintances; or
· interests or beliefs; or
· real or personal property in which they have an interest orotherwise associated
1129. These amendments are necessary as the ability for the Tribunal topublish its decisions is important to promoting public trust andconfidence in administrative decision-making and its operations andto promote transparency in decision-making. Requirements that anypublication of a Tribunal decision must be de-identified forstudent assistance matters will protect the identity of individualsand parties.
Part2 — Bulkamendments
Items208, 209, 210, 211, 212, 213, 214, 215, 216, 217,218 and219: Various provisions in DSSportfolioActs
1130. These itemsinclude tables which make bulk amendments to thefollowing DSS portfolioActs:
· A New Tax System (Family Assistance)Act1999
· A New Tax System (Family Assistance)(Administration)Act1999
· Australian Hearing ServicesAct1991
· Child Support (Assessment)Act1989
· Child Support (Registration andCollection)Act1988
· Disability ServicesAct1986
· MarriageAct1961
· National Disability Insurance SchemeAct2013
· Paid Parental LeaveAct2010
· Social SecurityAct1991
· Social Security (Administration)Act1999
· Student AssistanceAct1973
Terminology changes and updating legislativereferences
1131. The amendments make terminology changes, such as updating outdatedreferences to the ‘Administrative Appeals Tribunal’,‘AAT’ or ‘ Administrative AppealsTribunalAct1975’, so the provisions insteadrefer to the ‘Administrative Review Tribunal’,‘ART’ or the ‘ Administrative ReviewTribunalAct 2024’. These amendments ensure that theTribunal has jurisdiction to review decisions that are reviewableby the AAT, and that various provisions continue to operate in thesame way in the Tribunal.
SCHEDULE4 — AMENDMENTS RELATING TO THESECURITY DIVISION
OUTLINE
1132. Schedule4 of the Consequential Bill contains amendments to anumber of Acts, including (but not only) amendments that arerelevant to security matters (noting that some of the amendments inSchedule 4, including a number of amendments to the FOI Act, do notrelate to security matters).
1133. Rules related to the conduct of proceedings relating to securitymatters are set out across various Acts. The ARTBillharmonises and consolidates these rules. Existing protections whichapply to matters heard in the Security Divisionwill continueto apply but will be consolidated in the ARTBill, rather thanbeing set out in other Acts. As such, this Schedulerepeals anumber of provisions that will now be covered by theARTBill.
1134. This Scheduleensures that other Acts will continue to providea pathway for review of certain decisions to the Intelligence andSecurity jurisdictional area and will provide for who can make suchan application.
1135. It also makes a range of minor amendments, replacing references tothe AAT and the AATAct with updated terminology, replacinglegislative references to provisions of the AATAct withreferences to the equivalent provision under the proposed Administrative Review Tribunal Act2024 , and repealingprovisions which are no longer necessary as required. Theseamendments ensure the ART has jurisdiction to review decisions thatare reviewable by the AAT, and that various provisions willcontinue to operate in the same way as the current law for theTribunal.
1136. This Schedulecontains consequential amendments covering thefollowing Acts:
· Australian Crime Commission Act 2002
· Australian Security Intelligence Organisation Act 1979
· Foreign Acquisitions and Takeovers Act 1975
· Freedom of Information Act 1982
MAIN AMENDMENTS
General terminology changes
1137. A range of itemsin this Schedulemake simple terminologychanges, such as repealing references to the ‘AdministrativeAppeals Tribunal’, the ‘AAT’ and the‘ Administrative Appeals Tribunal Act1975 ’,and replacing them with references to the ‘AdministrativeReview Tribunal’, the ‘ART’ and the‘ Administrative Review Tribunal Act2024 ’.These amendments ensure that the Tribunal has jurisdiction toreview decisions that were reviewable by the AAT, and that theprovisions under those laws continue to operate in substantivelythe same way in relation to the Tribunal.
ArchivesAct 1983
Item 1: Subsection43(4)
Updating legislative references
1138. This itemupdates a legislative reference to the AATActwith the equivalent provision of the ARTBill. Section29of the AATAct deals with the manner of applying for review tothe Tribunal, including the time in which an application for reviewmust be made. This matter is dealt with in clause18 of theARTBill. This item is a technical amendment and is needed toensure subsection43(4) of the ArchivesAct continues tooperate in substantively the same way in relation to theTribunal.
Item 2: Subsection43(6)
Updating legislative references
1139. This itemupdates a legislative reference to the AATActwith the equivalent provision of the ARTBill. Section28of the AATAct deals with when a person may obtain reasons fora decision in respect of which an application may be made to theTribunal for review. These matters are dealt with inclause268 of the ARTBill. This item is a technicalamendment and is needed to ensure subsection43(6)of theArchivesAct continues to operate in substantively the sameway in relation to the Tribunal.
Item 3: Subsection52(1)
Updating legislative references
1140. This itemupdates legislative references to the AATActwith the equivalent provisions of the ARTBill.Subsections35(2), (3) and(4) of the AATAct dealwith the power of the Tribunal to make orders for private hearings,or the non-publication and non-disclosure ofinformation relating to a proceeding. These matters are dealt within subclauses69(3), and 70(1) and (2) of the ARTBill.This item is a technical amendment and is needed to ensuresubsection52(1) of the ArchivesAct continues to operatein substantively the same way in relation to the Tribunal.
Item 4: Subsection52(1)
Non-disclosure of certain matters
1141. This itemrepeals paragraph52(1)(b) and makes subsequentamendments to the numbering of subsection52(1).Paragraph52(1)(b) specifies that the Tribunal must giveparticular weight to a submission made by the National Archives ofAustralia in determining whether to make orders for a privatehearing, or non-publication or non-disclosure ofinformation where the proceedings relate to a record that isclaimed to be an exempt record pursuant to paragraph33(1)(a)or (b) of the Archives Act. These matters are dealt with inparagraph157(2)(b) of the ARTBill. Paragraph 52(1)(b)is being repealed to support a policy of standardising provisionsrelating to administrative review across Commonwealth legislationwhere there is no need for different provisions to apply. Thisensures provisions in the ARTBill are not duplicated ordisapplied unnecessarily in other pieces of legislation.Ultimately, this policy streamlines Tribunal processes andsimplifies and improves administrative practices.
Item 5: Paragraphs 52(2)(a) and (b)
Updating legislative references
1142. This itemupdates subsequent references to provisions ofsubsection52(1) as a result of amendments to the structure ofsubsection52(1).
Item 6: Subsection53(1)
Updating legislative references
1143. This itemupdates legislative references to the AATActwith the equivalent provisions of the ARTBill.Sections37 and38AA of the AATAct deal with thelodging of material documents with the Tribunal. These matters aredealt with in clauses23, 25 and 26 of the ARTBill. Thisitem is a technical amendment and is needed to ensuresubsection53(1) of the ArchivesAct continues to operatein substantively the same way in relation to the Tribunal.
Item 7: After subsection53(1A)
Giving documents to other parties
1144. This iteminserts a new provision after subsection53(1A)to clarify that, if the Tribunal is satisfied that a record is anexempt record, clause27 of the ARTBill does not applyin relation to the document. Clause27 would generally requirea decision-maker to give copies of reasons and documents toother parties if the decision-maker was required to givethose documents to the Tribunal. This ensures the appropriatecontinued protection of documents that the Tribunal is satisfiedare exempt records.
Item 8: Subsection53(5)
Updating legislative references
1145. This itemupdates a legislative reference to the AATActwith the equivalent provision of the ARTBill,clause187. This item is a technical amendment and is neededto ensure subsection53(5) of the ArchivesAct continuesto operate in substantively the same way in relation to theTribunal.
Items 9 and 10: Subsections53(6) and (7)
Updating legislative references
1146. These itemsupdate legislative references to the AATActwith the equivalent provisions of the ARTBill.Subparagraph46(1)(c)(i) of the AATAct deals with thesending of documents from the FCA to the FCFCOA if an appeal istransferred between the two courts. These matters are dealt with insubclause187(2) of the ARTBill. These items aretechnical amendments and are needed to ensuresubsections53(6) and (7)ofthe ArchivesActcontinue to operate in substantively the same way in relation tothe Tribunal.
Item 11: Subsection55A(5)
Updating legislative references
1147. This itemrepeals subsection55A(5) and replaces it witha new provision . This itemalso updates references toprovisions of the ARTBill.
1148. Paragraph55A(5)(a) provides that nothing in section55Aprevents a person from making an application under clause123of the ARTBill for the decision of the Tribunal to bereferred to the guidance and appeals panel. This is required as theguidance and appeals panel is a new function of the ART and was notcontemplated by current subsection55A(5).
1149. Existing subsection55A(5) clarifies that nothing insection55A affects the power of the FCA or the FCFCOA to makeorders under section44A of the AATAct in relation tomatters other than staying the decision of the Tribunal. Thesematters are dealt with in paragraph55A(5)(b). The referenceto section44A is also updated to refer to the equivalentprovision of the ARTBill, being clause178.
Item 12: Amendments of listed provisions
Terminology changes
1150. This itemamends terminology. See explanation of generalterminology changes above.
Australian Crime CommissionAct2002
Item 13: Paragraph19A(6)(a)
Terminology changes
1151. This itemrepeals and substitutes paragraph19A(6)(a).This is necessary to remove the reference to the ‘SecurityAppeals Tribunal’, which no longer exists, and update thereference to the ‘Administrative Review Tribunal’.
Item 14: Subsection19A(8)
Updating definitions
1152. This iteminserts the definition of officer of theTribunal , which means the Principal Registrar or a staffmember within the meaning of the ARTBill. This reflects theamendment to paragraph19A(6)(a).
Item 15: Subsection19A(8) (paragraphs (c), (d) and (e) ofthe definition of prescribed officer )
Updating definitions
1153. This itemremoves references to the ‘Security AppealsTribunal’, which no longer exists, and updates the referencesto the ‘Administrative Review Tribunal’.
Item 16: Subsection19A(8) (paragraph(e) of thedefinition of prescribed officer )
Updating definitions
1154. This itemupdates the reference from ‘thatTribunal’ to ‘the Administrative ReviewTribunal’.
Items 17 and 18: Section36A (definition of AATAct )
Updating definitions
1155. These itemsrepeal the definition of AATAct and insert a definition of ARTAct to mean the Administrative ReviewTribunalAct 2024.
Item 19: Section36A (definition of authorised member )
Updating definitions
1156. This itemrepeals the definition of authorisedmember as the term will no longer be used in theACCAct due to other amendments .
Item 20: Section36A (definition of officer of theTribunal )
Updating definitions
1157. This itemrepeals the definition of officer of theTribunal and replaces it with a definition of PrincipalRegistrar or staff member within the meaning of theARTBill.
Item 21: Section36A (definition of President)
Updating definitions
1158. This itemrepeals the definition of President asthe term will no longer be used in the ACCAct due to otheramendments .
Item 22: Section36A (definition of presidentialmember )
Updating definitions
1159. This itemrepeals the definition of presidentialmember as the term will no longer be used in theACCAct due to other amendments .
Item 23: Section36A (definition of Registrar)
Updating definitions
1160. This itemrepeals the definition of Registrar asthe term will no longer be used in the ACCAct due to otheramendments .
Item 24: Section36A (definition of Tribunal)
Updating definitions
1161. This itemrepeals the definition of Tribunal andreplaces it with a definition of ‘Administrative ReviewTribunal’.
Item 25: Subsection36F(1) (note)
Updating legislative references
1162. This itemupdates legislative references to the AATActwith the equivalent provision of the ARTBill, clause18.This item is a technical amendment and is needed to ensure the notein subsection36F(1) of the ACC Act remains accurate.
Item 26: Subsections36F(3) to (5)
Repealing provisions no longer required
1163. This itemrepeals subsections36F(3)to(5),which deal with applications for review of a Tribunal decision onthe basis of fresh evidence. This matter is dealt with insubclauses140(2)and(3) of the ARTBill.Subsections 36F (3), (4) and (5) are being repealed to support apolicy of standardising provisions relating to administrativereview across Commonwealth legislation where there is no need fordifferent provisions to apply. This ensures provisions in theARTBill are not duplicated or disapplied unnecessarily inother pieces of legislation. Ultimately, this policy streamlinesTribunal processes and simplifies and improves administrativepractices.
Item 27: Subsection36F(6)
Updating legislative references
1164. This itemupdates a legislative reference to the AATActwith the equivalent provision of the ARTBill, subclause17(1). Subsection27(1) of the AATAct sets out who canmake an application to the Tribunal for review of a decision. Thisitem is a technical amendment and is needed to ensure thatsubsection36F(6) of theACCAct continues tooperate in substantively the same way in relation to theTribunal.
Item 28: Sections36G to 36N
Repealing provisions no longer required
1165. This itemrepeals sections36Gto36N. Thematters set out in these sections are dealt with in theARTBill, as explained below, and no longer need to bespecified in the ACCAct.
1166. Section36G sets out the requirements for an application madeto the Tribunal for a review of an adverse criminal intelligenceassessment. Requirements as to the content of applications aredealt with in clause34 of the ARTBill.
1167. Section36H sets out the procedures that must be followed whenan application is made to the Tribunal for review of an adversecriminal intelligence assessment. Requirements as to thenotification of receipt of an application would be dealt with inclause139 of the ARTBill. The obligation imposed on theChief Executive Officer of the ACIC to lodge certain informationwith the Tribunal are dealt with in clause141 of theARTBill.
1168. Section36J sets out that reviews in respect of adversecriminal intelligence assessments must be heard in the SecurityDivisionof the AAT and outlines the constitution requirementsfor related proceedings. These matters are dealt with inclauses134and145 of the ARTBillrespectively.
1169. Section36K sets out the procedure for review of adversecriminal intelligence assessment decisions in the AAT. Theseprocedures would be covered by the ARTBill, as outlinedbelow.
· Subsection36K(2) specifies the parties to the proceeding.This is dealt with in clause147 of the ARTBill.Subsection36K(2) also sets out the ability of theCommonwealth agency to which the assessment was given to makesubmissions and adduce evidence. This is dealt with inclause150 of the ARTBill.
· Subsection36K(3) outlines the information the Chief ExecutiveOfficer of the ACIC must provide to the Tribunal. This is dealtwith in clause141 of the ARTBill.
· Subsection36K(4) sets out the ability of the Tribunal torequire party attendance at hearings. This is dealt with inclause80 of the ARTBill.
· Subsection36K(5) sets out that proceedings for review ofadverse criminal intelligence assessments are to be heard inprivate. This is dealt with in clause148 of theARTBill.
· Subsections36K(6)and(7) set out a right of theparties to be present at hearings. This is dealt with inclause149 of the ARTBill.
· Subsections36K(8),(9),(10)and (11) set out theprocess for and effect of issuing a ‘securitycertificate’ by the Minister. These procedures are dealt within clause158 of the ARTBill.
· Subsection36K(12) requires the Tribunal to do all thingsnecessary to ensure the identity of a person giving evidence isprotected, where requested by the ChiefExecutiveOfficerof the ACIC. This is dealt with in clause160 of theARTBill.
· Subsections36K(13),(14),(15),(16),(17)and(18)set out the order of proceedings for review of an adverse criminalintelligence assessment. These processes are dealt with inclauses151,152and153of theARTBill.
· Subsection36K(19) sets out the circ*mstances that can giverise to dismissal of an application. This is dealt with inclauses99and100 of the ARTBill.
1170. Section36L outlines the procedures and circ*mstances for theissue of a public interest certificate by the Minister in relationto information or contents of a document. This is dealt with inclause161 of the ARTBill.
· Subsection36L(11) sets out that a certificate issued by theChief Executive Officer of the ACIC under subsection36C(5)has the same effect as a public interest certificate. This is dealtwith in clause162 of the ARTBill.
· Subsection36L(12) imposes a duty on the Tribunal to ensurethat information is not communicated contrary to law enforcementinterests or the requirements of security. This is dealt with inclause156 of the ARTBill.
1171. Section36MAct provides the Tribunal with a directionspower to prohibit or restrict the publication or other disclosureof particular information. This is dealt with inclauses70and157 of the ARTBill.Section36M also provides that it is an offence to contravenesuch an order. This is dealt with in clause119 of theARTBill.
1172. Section36NAct sets out the powers of the Tribunal indetermining a review of a criminal intelligence assessment. This isdealt with in SubdivisionB of Division5 of Part6of the ARTBill.
1173. This item ensures provisions in the ARTBill are notduplicated or disapplied unnecessarily in other pieces oflegislation. Ultimately, this policy streamlines Tribunal processesand simplifies and improves administrative practices.
Item 29: Sections36Q (note 2)
Updating legislative references
1174. This itemupdates a legislative reference to the AATActwith the equivalent provision of the ARTBill. Section66of the AATAct provides for limitations on the disclosure ofconfidential information. This is dealt with in clause276 ofthe ARTBill. This item is a technical amendment and is neededto ensure note2 in section36Q of the ACC Act remainsaccurate.
Item 30: Subsection36R(2)
Updating legislative references
1175. This itemupdates a legislative reference to the AATActwith the equivalent provisions of the ARTBill.Section69A of the AATAct sets out the procedure fortaxing costs, where the Tribunal has made a costs order. This isdealt with in clause115 of the ARTBill. This item is atechnical amendment and is needed to ensure subsection36R(2)of the ACCAct continues to operate in substantively the sameway in relation to the Tribunal.
Item 31: Section36S
Repealing provisions no longer required
1176. This itemrepeals section36S, which deals with theprocedures and processes for a proceeding for review of an adversecriminal intelligence assessment. These matters are dealt with inthe ARTBill, as outlined above, and no longer need to bespecified in the ACCAct.
1177. This item ensures provisions in the ARTBill are notduplicated or disapplied unnecessarily in other pieces oflegislation. Ultimately, this policy streamlines Tribunal processesand simplifies and improves administrative practices.
Item 32: Schedule1
Updating legislative references
1178. This itemupdates a legislative reference to the AATActwith the equivalent provision of the ARTBill. Section36of the AATAct provides the Attorney-General with theability to issue a public interest certificate. This is dealt within clause91 of the ARTBill. This item is a technicalamendment and is needed to ensure subsection36R(2) of theACCAct continues to operate in substantively the same way inrelation to the Tribunal.
Item 33: Amendments of listed provisions
Terminology changes
1179. This itemamends terminology. See explanation of generalterminology changes above.
Australian Security IntelligenceOrganisationAct 1979
Item 34: Paragraph34AD(1)(b)
Repealing and replacing provisions no longerrequired
1180. This itemrepeals paragraph34AD(1)(b) and replaces itwith a new provision.
1181. Paragraph34AD(1)(b) provides that a person who holds anappointment to the Tribunal as President or Deputy President may beappointed by the Attorney-General as a prescribed authorityfor questioning warrants. This itemretains the existingsetting such that only the President or a Deputy President of theTribunal can be appointed as a prescribed authority for questioningwarrants.
1182. Subparagraphs34AD(1)(b)(ii)and(iii) provideadditional qualification requirements for the President or DeputyPresident of the AAT to be appointed as prescribed authorities.These qualification requirements no longer need to be specifiedbecause they are captured by the qualification requirements for aperson to be appointed as a President or Deputy President of theART, as set out insubclauses205(3),206(3)and207(3) of theARTBill.
Item 35: Subsection54(2)
Repealing and replacing provisions no longerrequired
1183. This itemreplaces subsection54(2) with a newprovision.
1184. Existing subsection54(2) provides an ability for an applicantto apply to the Tribunal for a review of the findings of theTribunal on the basis of fresh evidence. This is dealt with inclause140 of the ARTBill and no longer needs to bespecified in the ASIOAct.
1185. New subsection54(2) sets out that an application for reviewof a security assessment can be made by the person in respect ofwhom the assessment was made. This matter is currently dealt within section27AA(1) of the AATAct.
Item 36: At the end ofsubsection65(2)
Terminology changes
1186. This iteminserts the phrase ‘of the Tribunal’ atthe end of subsection65(2), to clarify that the reference to‘the President’ is a reference to the President of theART.
Item 37: Subsection65(3)
Updating legislative references
1187. This itemupdates legislative references to the AATActwith the equivalent provisions of the ARTBill.Sections43and43AAA of the AATAct relate tothe Tribunal’s decision on review. These matters are dealtwith inclauses54,105,107,108,111and112,andSubdivisionBofDivision5ofPart6ofthe ARTBill. This item is a technical amendment and is neededto ensure subsection65(3) of the ASIOAct continues tooperate in substantively the same way in relation to theTribunal.
Item 38: Subsection81(3)
Inserting new definition
1188. This iteminserts a definition of officer of theTribunal into subsection81(3).
Item 39: Subsection83B(1) (note)
Repealing provision no longer required
1189. This itemrepeals the note after subsection83B(1). Thenote currently refers to a provision of the AATAct, whichsets out who can apply for a review under section83B.However, in line with Item 40 below, this will be set out in theASIOAct.
Item 40: Subsection83B(2)
Repealing and replacing provision no longerrequired
1190. This itemrepeals subsection83B(2) and replaces it witha new provision.
1191. Existing subsection83B(2) provides an ability for anapplicant to apply to the Tribunal for a review of the findings ofthe Tribunal on the basis of fresh evidence. This is dealt with inclause142 of the ARTBill and no longer needs to bespecified in the ASIOAct.
1192. New subsection83B(2) sets out that an application for reviewof a security clearance decision or security clearance suitabilityassessment can be made by the person in respect of whom thedecision or assessment was made and who has been given notice ofthe decision or assessment undersubsection82L(5)or83A(1) of the ASIO Act. Thismatter is currently dealt with in section27AA(1) of theAATAct.
Item 41: Subsection83C(1)
Updating legislative references
1193. This itemupdates legislative references to the AATActwith the equivalent provision of the ARTBill.PartIVoftheAATAct sets out thenotification requirements when an application is made to theTribunal for review. This is dealt with in clause139 of theARTBill. This item is a technical amendment and is needed toensure subsection83C(1) of the ASIOAct continues tooperate in substantively the same way in relation to theTribunal.
Item 42: Subsection83C(2) (note)
Updating legislative references
1194. This itemupdates a legislative reference to the AATActwith the equivalent provision of the ARTBill.Subsection38A(1B) of the AATAct provides an obligationon the Director-General of Security to lodge certaindocuments with the Tribunal, after being notified an applicationfor review has been made. This is dealt with inparagraph141(2)(b) of the ARTBill. This item is atechnical amendment and is needed to ensure the note insubsection83C(2) remains accurate.
Item 43: After section83
Who may be present when Tribunal is hearingsubmissions
1195. This iteminserts new section83CA.
1196. Section83CA would apply where the Director-General ofSecurity has provided the Tribunal a copy of a standard (or apartof a standard) certified as relating to theCommonwealth’s highest level of security clearance.
1197. Through the operation of clause5 of the ARTBill,section83CA of the ASIO Act displaces the general right ofthe applicant, and their representative, to be present at a hearingas provided for in clause149 of the ARTBill. Theapplicant or their representative may only be present when theTribunal is hearing submissions made or evidence adduced inrelation to any partof the copy where the copy has alreadybeen disclosed to them, or the Director-General of Securityconsents to their presence.
1198. This replicates the effect of subsection39BA(9) of theAATAct.
Item 44: At the end of subsection83F(6)
Terminology changes
1199. This iteminserts the phrase ‘of the Tribunal’ atthe end of subsection83F(6) to clarify that the reference to‘the President’ is a reference to the President of theART.
Item 45: Paragraph83F(7)(b)
Updating legislative references
1200. This itemupdates legislative references to the AATActwith the equivalent provisions of the ARTBill,clauses54,105,107,108,111,112and63,andSubdivisionBofDivision5ofPart6.This item is a technical amendment and is needed to ensureparagraphsection83F of the ASIOAct continues tooperate in substantively the same way in relation to theTribunal.
Item 46: Before section93
Tribunal’s power to order costs
1201. This iteminserts new section93A.
1202. Section93A provides the Tribunal an ability to order costsreasonably incurred by the applicant in connection with anapplication for review of a security assessment, security clearancedecision or security clearance suitability assessment, are to bepaid by the Commonwealth.
1203. The Tribunal must only make such an order if the Tribunal is of theopinion that the applicant was successful, or substantiallysuccessful, in the application for review, and that it isappropriate to do so in the circ*mstances.
1204. This is equivalent to section69B of the AATAct. It hasbeen inserted in the ASIOAct as the ARTBill does notdeal with substantive costs provisions. The ARTBill includesa note, at subclause115(1), setting out that theTribunal’s power to order a party to a proceeding to paycosts is set out in other legislation.
Item 47: Amendments of listed provisions
Terminology changes
1205. This itemamends terminology. See explanation of generalterminology changes above.
ForeignAcquisitions and TakeoversAct 1975
Items 48 and 49: Section4
Replacing definitions
1206. These itemsrepeal the definition of AATAct , and insert a definition of ARTAct . This ensures that the new Tribunal hasjurisdiction to review decisions that are reviewable by the AAT andthat various provisions within theAct continue to operate inthe same way in relation to the Tribunal.
Item 50: Subsections130A(3) to (5)
Repealing provisions no longer required andupdating legislative references
1207. This itemrepeals subsections130A(3)and(4),which deal with applications for review of a Tribunal decision onthe basis of fresh evidence. This matter is dealt with insubclauses140(2)and(3) of the ARTBill andno longer needs to be specified in the FATA.
1208. This itemshifts current subsection130A(5) tosubsection130A(3) and removes an outdated reference to aprovision of the AATAct to instead refer to the equivalentprovision of the ARTBill. Subsection27(1) of theAATAct sets out who can make an application to the Tribunalfor review of a decision. This is dealt with insubclause17(1) of the ARTBill. This amendment ensuressection130A continues to operate in substantively the sameway in relation to the Tribunal.
Item 51: Sections130B to 130K
Repealing provisions no longer required
1209. This itemrepeals sections130Bto130K. Thematters set out in these sections are dealt with in theARTBill, as explained below, and no longer need to bespecified in the FATA.
1210. Section130B sets out the requirements for making anapplication to the Tribunal for review of a foreign acquisitionsand takeovers decision, including requirements as to the content ofapplications. This is dealt with in clause34 of theARTBill.
1211. Section130C sets out the procedures that must occur when anapplication is made to the Tribunal for review of a foreignacquisitions and takeovers decision, including requirements as tothe notification of receipt of an application. This is dealt within clause139 of the ARTBill.
1212. Section130D imposes an obligation on the Treasurer to lodgecertain information with the Tribunal. This obligation is dealtwith in clause141 of the ARTBill.
1213. Section130E sets out that proceedings for review ofreviewable decisions must be heard in the Security Divisionofthe Tribunal. Clause134 of the ARTBill sets out whenthe Tribunal must exercise its powers in the Intelligence andSecurity jurisdictional area.
1214. Section130F sets out that the Tribunal may makenon-publication and non-disclosure orders inproceedings for review of a foreign acquisitions and takeoversdecision. This is dealt with in clause157 of theARTBill.
1215. Section130G sets out the procedure for review of a foreignacquisitions and takeovers decision in the AAT. These proceduresare dealt with in the ARTBill, as outlined below.
· Subsection130G(2) specifies the parties to the proceeding.This is dealt with in clause147 of the ARTBill.
· Subsection130G(3) requires the Treasurer to provide certaininformation to the Tribunal. This is dealt with in clause141of the ARTBill.
· Subsection130G(4) sets out the ability of the Tribunal torequire party attendance at directions hearings. This is dealt within clause80 of the ARTBill.
· Subsection130G(5) sets out that proceedings for review offoreign acquisitions and takeovers decisions must be heard inprivate. This is dealt with in clause148 of theARTBill.
· Subsections130G(6) and (7) set out a right of the parties tobe present at hearings. This is dealt with in clause149 ofthe ARTBill
· Subsections130G(8),(9)and(10) set out theprocess for and effect of the Treasurer issuing a ‘securitycertificate’. These procedures are dealt with inclause158 of the ARTBill.
· Subsection130G(11) requires the Tribunal to do all thingsnecessary to ensure the identity of a person giving evidence isprotected, where requested by the head of a national intelligencecommunity agency. This is dealt with in clause160 of theARTBill.
· Subsections130G(12),(13),(14),(15),(16)and(17)set out the order of proceedings for review of a foreignacquisitions and takeovers decision. These processes are dealt within clauses151,152and153 of theARTBill.
· Subsection130G(18) sets out the circ*mstances that can giverise to dismissal of an application. This is dealt with inclauses99and100 of the ARTBill.
· Subsection130G(19) states that a certificate issued undersubsection130G(8) is not a legislative instrument. This isdealt with in clause158 of the ARTBill.
1216. Section130H outlines the procedures and circ*mstances for theissue of a public interest certificate by the Treasurer in relationto information or contents of a document. This is dealt with inclause161 of the ARTBill. Section130H alsoimposes a duty on the Tribunal to ensure that information is notcommunicated contrary to the requirements of security. This isdealt with in clause156 of the ARTBill.
1217. Sections130J and 130K set out the powers of the Tribunal indetermining a review of a foreign acquisitions and takeoversdecision. This is dealt with inSubdivisionBofDivision5ofPart6oftheARTBill.
1218. This item ensures provisions in the ARTBill are notduplicated or disapplied unnecessarily in other pieces oflegislation. Ultimately, this policy streamlines Tribunal processesand simplifies and improves administrative practices.
Item 52: Subsection130M(2)
Updating legislative references
1219. This itemupdates a legislative reference to the AATActwith the equivalent provision of the ARTBill.Section69A of the AATAct sets out the procedure fortaxing costs, where the Tribunal has made a costs order. This isdealt with in clause115 of the ARTBill. This item is atechnical amendment and is needed to ensure thatsubsection130M(2) of the FATA continues to operate insubstantively the same way in relation to the Tribunal.
Item 53: Section130N
Updating legislative references
1220. This itemrepeals section130N, which deals with theinteraction of various provisions of the AATAct in relationto reviews of foreign acquisitions and takeover decisions. Thisprovision is no longer be required as the relevant procedures andprocesses for a proceeding for review of a foreign acquisitions andtakeovers decision are covered in the ARTBill and not theFATA, as outlined above.
Item 54: Amendments of listed provisions
Terminology changes
1221. This itemamends terminology. See explanation of generalterminology changes above.
Freedom of InformationAct1982
Item 55: Subsection57A(1) (note 1)
Updating legislative references
1222. This itemupdates a legislative reference to the AATActwith the equivalent provision of the ARTBill. Section27of the AATAct deals with who may apply to the Tribunal forreview of a decision. These matters are dealt with inclause17 of the ARTBill. This item is a technicalamendment and is needed to ensure that note1 insubsection57A(1) of the FOIAct remains accurate.
Item 56: Subsection57A(1) (note 2)
Repealing provision no longer required
1223. This itemrepeals note2 in subsection57A(1), andreplaces it with a note on the same matter. This removes anoutdated reference to a provision of the AATAct to insteadrefer to the equivalent provision of the ARTBill.Subsection29(2) of the AATAct deals with the timewithin which the application for review must be made. These mattersare dealt with in clauses18to20 of theARTBill. These amendments ensure that note2 insubsection57A(1) of the FOIAct remains accurate.
Items 57 and 58: Subsection57A(2)
Updating legislative references
Item 59: Paragraph57A(2)(b)
Timeframe for application for review
1225. This itemrepeals paragraph57A(2)(b), which providesthat the period within which a person may lodge an application forreview of an IC reviewable decision where the IC decides undersubsection54W(b) not to undertake, or not to continue toundertake, a review ends on the 28th day after the day on whichnotice of the decision was given to the person.
1226. Paragraph57A(2)(b) provides that this period ends at the endof the period prescribed for the purposes of subclause18(1)of the ARTBill. Subclause18(1) of the ARTBillpermits the rules to prescribe a period within which an applicationto the Tribunal for review of a decision must be made. Thisamendment would ensure the period prescribed by the rules appliesto all applications for review of an IC reviewable decision underthe FOIAct.
Item 60: At the end of section57A
Applications cannot be made to the Tribunalguidance and appeals panel
1227. This iteminserts subsection57A(3) which provides thatdecisions made under the FOIAct are not able to referred tothe Tribunal’s guidance and appeals panel.
1228. Part5 of the ARTBill provides that the guidance andappeals panel would have the power to:
· hear and determine a matter referred to it by the President thatraises an issue of significance to administrative decision-making(‘guidance’ function), and
· review and determine Tribunal decisions referred to it by thePresident that may contain an error of fact or law materiallyaffecting the Tribunal decision or that raise an issue ofsignificance to administrative decision-making(‘appeals’ function).
1229. The guidance and appeals panel would have a ‘guidance’function in relation to matters or decisions that raise an issue ofsignificance to administrative decision-making. However,section93A of the FOIAct provides an ability for the ICto issue guidelines about the operation of the FOIAct. It isnecessary to exclude the ‘guidance’ function of theTribunal in relation to FOI matters to avoid conflicts withguidelines issued by the IC under the FOIAct.
1230. The ‘appeals’ function is also disapplied for FOImatters. As FOI matters are considered by the IC prior to review bythe Tribunal, there is already a layer of external (to the originaldecision-maker) review on these matters. Allowing access totwo further layers of review in the Tribunal is unnecessary andwould delay the finalisation of matters.
Item 61: Sections58B and 58D
Repealing provisions no longer required
1231. This itemrepeals sections58Band58D.
1232. Section58B deals with how the Tribunal must be constitutedwhen reviewing a decision about a document claimed to be exemptundersections33(Documentsaffectingnationalsecurity,defenceorinternationalrelations),34(Cabinet documents), and45A(ParliamentaryBudgetOfficedocuments) ofthe FOIAct. Section58D sets out the procedures if thereis disagreement between members in a proceeding for review of thesedecisions.
1233. Clause145 of the ARTBill deals with how the Tribunalmust be constituted when reviewing a decision about a documentclaimed to be exempt undersection33. As such, thismatter does not need to be specified in the FOIAct.
1234. Clause39 of the ARTBill deals with how the Tribunalmust generally be constituted for the purposes of a proceeding. Itis intended that clause39 will apply to reviews of decisionsabout a document claimed to be exempt undersections34and45A of the FOIAct. As such,the FOIAct will no longer set out special constitutionrequirements for review of these decisions. Removing thisrequirement provides the Tribunal with greater flexibility tomanage its member resources, and to ensure that matters areconstituted at an appropriate level.
1235. This item ensures provisions in the ARTBill are notduplicated or disapplied unnecessarily in other pieces oflegislation. Ultimately, this policy streamlines Tribunal processesand simplifies and improves administrative practices.
Item 62: Subsection58E(1)
Updating legislative references
1236. This itemupdates legislative references to the AATActwith the equivalent provisions of the ARTBill.Sections37and38AA of the AATAct deal withthe lodging of material documents with the Tribunal. These mattersare dealt with in clauses23,25and26 of theARTBill. This item is a technical amendment and is needed toensure that subsection58E(1) of the FOIAct continues tooperate in substantively the same way in relation to theTribunal.
Item 63: At the end of section58E
Giving documents to other parties
1237. This iteminserts a new provision at the end ofsubsection58E to clarify that, if the Tribunal is satisfiedthat a record is an exempt record, clause27 of theARTBill would not apply in relation to the document.Clause27 generally requires a decision-maker to givecopies of reasons and documents to other parties if thedecision-maker was required to give those documents to theTribunal. New subsection58E(4) ensures the appropriate,continued, protection of documents that the Tribunal is satisfiedare exempt records.
Item 64: Paragraph60(3)(d)
Updating legislative references
1238. This itemupdates a legislative reference to the AATActwith the equivalent provision of the ARTBill.Subsection30(1A) of the AATAct deals with applicationsto be a party to a proceeding by persons whose interest areaffected by the decision. These matters are dealt with inparagraph22(1)(c) of the ARTBill. This item is atechnical amendment and is needed to ensure thatparagraph60(3)(d) of the FOIAct continues to operate insubstantively the same way in relation to the Tribunal.
Item 65: Subsection60AA(2) (note 3)
Updating legislative references
1239. This itemupdates a legislative reference to the AATActwith the equivalent provision of the ARTBill,paragraph22(1)(c). This item is a technical amendment and isneeded to ensure that note3 in subsection60AA(2)remains accurate.
Item 66: Subsection61A(1)
Updating legislative references
1240. This itemrepeals subsection61A(1) and replaces it withan updated set of modifications to various provisions of theARTBill. These modifications ensure that references to thedecision-maker in the listed provisions of the ARTBillare taken to mean, in relation to the review of decisions madeunder the FOIAct, a reference to the agency or Minister whomade the IC reviewable decision. These amendments are necessary toensure the various provisions of the ARTBill continue toappropriately apply in relation to reviews of decisions made underthe FOIAct.
Item 67: Subsection61A(2)
Updating legislative references
1241. This itemupdates a legislative reference to the AATActwith the equivalent provision of the ARTBill.Paragraph37(1)(a) of the AATAct requires adecision-maker to lodge a statement of reasons for thedecision under review. These matters are dealt with inparagraph23(a) of the ARTBill. This item is a technicalamendment and is needed to ensure that subsection61A(2) ofthe FOIAct continues to operate in substantively the same wayin relation to the Tribunal.
Item 67A: Subsection 61A(2)
Terminology change
1242. This item amends terminology. See explanation of generalterminology changes above.
Item 68: Subsection61A(3)
Updating legislative references
1243. This itemupdates legislative references to the AATActwith the equivalent provisions of the ARTBill.Sections38 and38AA of the AATAct deal with theTribunal’s power to obtain additional statements and aperson’s ongoing requirement to lodge material documents withthe Tribunal. These matters are dealt with inclauses24and25 of the ARTBill. This item isa technical amendment and is needed to ensure thatsubsection61A(3) of the FOIAct continues to operate insubstantively the same way in relation to the Tribunal.
Items 69 and 70: Section62 (heading) andsubsection62(1)
Updating legislative references
1244. These itemsupdate legislative references to the AATActwith the equivalent provisions of the ARTBill.Section28 of the AATAct deals with requests for astatement of reasons by persons affected by a decision. Thesematters are dealt with in clause268 of the ARTBill.These items are technical amendments and are needed to ensure thatsection62 of the FOIAct continues to operate insubstantively the same way in relation to the Tribunal.
Item 71: Subsection63(1)
Updating legislative refences
1245. This itemupdates legislative references to the AATActwith the equivalent provisions of the ARTBill.Subsections35(2),(3)and(4) of theAATAct deals with the power of the Tribunal to make ordersfor private hearings, and the non-publication andnon-disclosure of information. These matters are dealt within subclauses69(3),and70(1)and(2) ofthe ARTBill. This item is a technical amendment and is neededto ensure subsection63(1) of the FOIAct continues tooperate in substantively the same way in relation to theTribunal.
Item 72: Subsection63(1)
Repealing provisions no longer required
1246. This itemrepeals paragraph63(1)(b) and makes subsequentamendments to the numbering of subsection63(1).Paragraph63(1)(b) specifies that the Tribunal must giveparticular weight to a submission made by an agency or Minister indetermining whether to make orders for a private hearing, ornon-publication or non-disclosure of information wherethe proceedings relate to a record that is claimed to be an exemptdocument pursuant to section33 of the FOIAct. Thesematters are dealt with in paragraph157(2)(b) of theARTBill and would no longer need to be specified in theFOIAct.
1247. This item ensures provisions in the ARTBill are notduplicated or disapplied unnecessarily in other pieces oflegislation. Ultimately, this policy streamlines Tribunal processesand simplifies and improves administrative practices.
Item 73: Paragraphs 63(2)(a) and (b)
Updating legislative references
1248. This itemupdates references to provisions ofsubsection63(1) as a result of amendments made inItem71.
Item 74: Subsection64(1)
Updating legislative references
1249. This itemupdates legislative references to the AATActwith the equivalent provisions of the ARTBill.Sections37and38AA of the AATAct deal withthe lodging of material documents with the Tribunal. These mattersare dealt with in clauses23,25and26 of theARTBill. This item is a technical amendment and is needed toensure subsection64(1) of the FOIAct continues tooperate in substantively the same way in relation to theTribunal.
Item 75: Subsection64(6)
Updating legislative references
1250. This itemupdates a legislative reference to the AATActwith the equivalent provision of the ARTBill. Section46of the AATAct deals with the sending of documents, anddisclosure of documents by, the FCA and FCFCOA. These matters aredealt with in clause187 of the ARTBill. This item is atechnical amendment and is needed to ensure subsection64(6)of the FOIAct continues to operate in substantively the sameway in relation to the Tribunal.
Item 76: Subsections64(7) and (8)
Updating legislative references
1251. This itemupdates a legislative reference to the AATActwith the equivalent provision of the ARTBill.Subparagraph46(1)(c)(i) of the AATAct deals with thesending of documents from the FCA to the FCFCOA if an appeal istransferred between them. These matters are dealt with inparagraph187(2)(a) of the ARTBill. This item is atechnical amendment and is needed to ensure subsections64(7)and(8) of the FOIAct continue to operate insubstantively the same way in relation to the Tribunal.
Item 77: Subsection67(5)
Updating legislative references
1252. This itemupdates a legislative reference to the AATActwith the equivalent provision of the ARTBill.Section44A of the AATAct deals with the operation andimplementation of a decision that is subject to appeal. Thesematters are dealt with in clause178 of the ARTBill.This item is a technical amendment and is needed to ensuresubsection67(5) of the FOIAct continues to operate insubstantively the same way in relation to the Tribunal
Item 78: Section89N (note 1)
Updating legislative references
1253. This itemupdates a legislative reference to the AATActwith the equivalent provision of the ARTBill. Section27of the AATAct sets out who can make an application to theTribunal for review of a decision. This matter is dealt with inclause17 of the ARTBill. This item is a technicalamendment and is needed to ensure note1 in section89Nof the FOIAct remains accurate.
Item 79: Section89N (note 2)
Updating legislative references
1254. This itemupdates a legislative reference to the AATActwith the equivalent provision of the ARTBill.Subsection29(2) of the AATAct deals with the prescribedtime for making applications to the Tribunal. These matters aredealt with in clause18 of the ARTBill. This item is atechnical amendment and is needed to ensure note2 insection89N of the FOIAct remains accurate.
Item 80: Section89N (note 3)
Updating legislative references
1255. This itemupdates a legislative reference to the AATActwith the equivalent provision of the ARTBill. Section30of the AATAct deals with matters related to the parties to aproceeding. These matters are dealt with in clause22 of theARTBill. This item is a technical amendment and is needed toensure note3 in section89N of the FOIAct remainsaccurate.
Item 81: Amendments of listed provisions
Terminology changes
1256. This itemamends terminology. See explanation of generalterminology changes above.
SCHEDULE5—AGRICULTURE, FISHERIES AND FORESTRY
OUTLINE
1257. This Schedulecontains consequential amendments covering thefollowing Acts in the Agriculture, Fisheries and Forestryportfolio:
· Horse Disease Response Levy Collection Act 2011
· Pig Industry Act 2001
· Torres Strait Fisheries Act 1984
Part1-Main amendments
Pig Industry Act 2001
Items 1 and 2: Subsections 2(1), 2(2) and 2(3)
Repealing provisions that are no longernecessary
1259. These itemsrepeal commencement provisions that are no longernecessary (relating to Schedule1 to the Pig IndustryAct2001 ) and make a consequential change to reflect therepeal of the provisions.
1260. Subsections 2(2) and (3) provide for the commencement ofSchedule1 to the Pig Industry Act2001 . Bothprovisions are no longer necessary as a result of the repeal ofSchedule1 by the Statute Law RevisionAct2013 .
1261. Item 2 repeals subsections 2(2) and (3), to remove these provisionsthat are no longer necessary. These provisions provided acommencement rule that was partly dependent on the commencement ofparts of either the Administrative Review TribunalAct2000 or the Administrative Review TribunalAct2001 (as it would have been, had the AdministrativeReview Tribunal Bill2000 commenced). This involved using theterm Administrative Review Tribunal, which was also the name of thebody that would have been established by the Administrative ReviewTribunal Bill2000. Therefore, repealing these unnecessaryprovisions also avoids confusion with the Administrative ReviewTribunal established by the amendments in the ARTBill.
1262. Item 1 makes a consequential change to subsection2(1) of the PigIndustryAct2001 to reflect the repealof subsections 2(2) and (3).
Part2-bulk amendments
Items 3, 4 and 5: Various provisions in Agriculture, Fisheriesand Forestry portfolio Acts
1263. These itemsinclude tables which make bulk amendments to thefollowing Agriculture, Fisheries and Forestry portfolio Acts:
· Biological Control Act 1984
· Horse Disease Response Levy Collection Act 2011
· Pig Industry Act 2001
· Torres Strait Fisheries Act 1984
Terminology changes
1264. These itemsmake simple terminology changes, such as repealingreferences to the Administrative Appeals Tribunal, the AAT and the Administrative Appeals Tribunal Act1975 , and replacingthem with references to the Administrative Review Tribunal, the ARTand the Administrative Review Tribunal Act2024 . Theseamendments ensure that the Tribunal has jurisdiction to reviewdecisions that were reviewable by the AAT, and that the provisionsunder those laws continue to operate in substantively the same wayfor the Tribunal.
SCHEDULE6—ATTORNEY-GENERAL
OUTLINE
1265. This Schedulecontains consequential amendments covering thefollowing Acts in the Attorney-General portfolio:
· Anti-Money Laundering and Counter-Terrorism FinancingAct2006
· Australian Transaction Reports and Analysis Centre IndustryContribution (Collection) Act2011
· Copyright Act 1968
· Disability Discrimination Act 1992
· Law Officers Act 1964
· Modern Slavery Act 2018
· Ombudsman Act 1976
· Sex Discrimination Act 1984
1266. Amendments to a particular Act may be contained in both Part1(Main amendments) and Part2 (Bulk amendments) of thisSchedule.
Part1 — Mainamendments
Copyright Act 1968
Item 1: Paragraph 195B(3)(b)
Notice of ability to request statement ofreasons
1267. This itemupdates thisprovision to reflect the terminology and relevant provisions in theARTBill. This ensures that the provision operates in the sameway as the current law. The provision requires the decision-makerto notify relevant persons that they may request a statementof reasons under the ARTBill .
1268. This itemupdates legislative references to provisions of theAATAct, generally replacing these with references to theequivalent provisions under the ARTBill.
1269. Subsection28(4) of theAATAct provides that a person is not entitled to request astatement of reasons if such a statement has already beengiven. Under the equivalent provision in the ARTBill, the decision-maker mayrefuse the request if the statement of reasons has already beenprovided for that decision. While the provision as amended by thisitemdoes not specifically refer to this equivalent provisionas this is unnecessary, a person’s right to request reasonsis still subject to this qualification.
Disability Discrimination Act1992
Item 2: Paragraphs 57(1)(a) to (d)
Terminology changes - Notice ofdecisions to be published
1270. This itemupdates thisprovision to reflect the terminology of the ARTBill. Thisincludes replacing the reference to setting out findings ofmaterial questions of fact, referring to the evidence on whichthose findings are based and giving the reasons for the making ofthe decision with a reference to a ‘statement of reasons. TheARTBill includes a definition of a statement of reasons,which includes each of these elements in the original provisionunder this Act.
1271. This ensures that the provisionoperates in substantively the same way for the Tribunal. Theprovision requires a decision-maker to publish in aGazette:
· the making of thedecision
· a statement of reasons,and
· a statement about aperson’s right to apply to the Tribunal for review of adecision.
Ombudsman Act 1976
Item 3: Subsection3(1)
Updating definitions
1272. This itemreplaces the definition of ‘chief executiveofficer’ in paragraph (e) of subsection3(1) of theOmbudsman Act, and the ‘the Registrar of the Tribunal’,with a reference to ‘the Chief Executive Officer andPrincipal Registrar of the Tribunal’. It also replacesreferences to the AAT with the Tribunal.
Item 4: Paragraph 3(18)(b)
Terminology changes
1273. This itemmakes terminology changes to this provision,replacing references to the ‘Registrar of the AdministrativeAppeals Tribunal’ and ‘President of the AdministrativeAppeals Tribunal’ with references to the ‘ChiefExecutive Officer and Principal Registrar of the AdministrativeReview Tribunal’ and ‘President of the AdministrativeReview Tribunal’. These amendments ensure that the Tribunalhas jurisdiction to review decisions that are reviewable by theAAT, and that the provisions under those laws continue to operatein substantively the same way for the Tribunal.
Item 5: Paragraphs 10(1)(b) and (1A)(b)
Legislative update - Deemed decisionand unreasonable delay in exercising power
1274. This itemupdates this provision to reflect the wording ofclause16 of the ARTBill, which refers to a‘quantified period’, to ensure that the provision operates in substantially thesame way as the current law .
1275. The provision applies where a person has a power to do an act orthing, and has not exercised that power. It provides an avenue fora potential applicant to the AAT to complain that there has been anunreasonable delay in deciding whether to do the act or thing. Ifthe Ombudsman decides there has been unreasonable delay, they maygrant a certificate to that effect. The decision is then deemed tohave been made on the date when the certificate is granted, and theperson can apply to the AAT (and now the ART) for review of thedeemed decision.
1276. This covers situations not covered by clause16 of theARTBill. Clause16 provides that, if a decision-makerdoes not do a thing within a quantified time period as required orpermitted, the expiry of that period is deemed to be a decision tonot do the thing. This clause is largely equivalent tosubsection25(5) of the AATAct, but uses the word‘quantified’ (rather than ‘prescribed’) toclarify its operation. The use of the word ‘quantified’in both the ARTBill and OmbudsmanAct removes anyambiguity that the OmbudsmanAct is intended to apply in allcirc*mstances where there is no quantified period (for example,28days) for the making of a decision. This includes where anAct or instrument provides a more general period (for example,‘as soon as reasonably practicable’) or no period atall.
Item 6: Paragraph 16(5)(b)
1277. This itemupdates terminology in this provision, replacingreferences to ‘Registrar of the Administrative AppealsTribunal’ and ‘President of the Administrative AppealsTribunal’ with references to the ‘Chief ExecutiveOfficer and Principal Registrar of the Administrative ReviewTribunal’ and the ‘President of the AdministrativeReview Tribunal’.
Sex Discrimination Act 1984
Item 7: Paragraphs 46(1)(a) to (d)
Terminology changes - Notice ofdecisions to be published
1278. This itemupdates thisprovision to reflect the terminology of the ARTBill. Thisincludes replacing the reference to setting out findings ofmaterial questions of fact, referring to the evidence on whichthose findings are based and giving the reasons for the making ofthe decision with a reference to a statement of reasons. TheARTBill includes a definition of a statement of reasons,which is similar to the description in the Sex DiscriminationAct1984 that is being replaced, except that it requiresthe decision-maker to explain , rather than only give,the reasons for the decision.
1279. This ensures that the provisionoperates in substantively the same way as the current law. Theprovision requires a decision-maker to publish in aGazette:
· a notice of the making of thedecision
· a statement of reasons,and
· a statement about aperson’s right to apply to the Tribunal for review of adecision.
Part2 — BULKamendments
Items 8, 9, 10, 11, 12, 13, 14 and 15:Various provisions inAttorney-General portfolio Acts
1280. These itemsinclude tableswhich make bulk amendments to the following Attorney-Generalportfolio Acts:
· Anti-Money Laundering andCounter-Terrorism Financing Act2006
· Australian TransactionReports and Analysis Centre Industry Contribution (Collection)Act2011
· Copyright Act1968
· Disability DiscriminationAct1992
· Law Officers Act1964
· Modern Slavery Act2018
· Ombudsman Act1976
· Sex Discrimination Act1984
Terminology changes
1281. The amendments make terminology changes, such as replacingreferences to the Administrative Appeals Tribunal, AAT or Administrative Appeals Tribunal Act1975 withreferences to the Administrative Review Tribunal, ART or Administrative Review Tribunal Act2024 . Theseamendments ensure that the Tribunal has jurisdiction to reviewdecisions that were reviewable by the AAT, and that the provisionsunder those laws continue to operate in substantively the same wayfor the Tribunal.
1282. Notably, item14 updates references to the AAT insections10A (Ombudsman may refer questions to the AAT)and11 (Ombudsman may recommend that the principal officerrefer questions to the AAT) of the OmbudsmanAct. Theseamendments retain the Ombudsman’s powers to refer, and torecommend that a principal officer refer, questions to theTribunal. This implements recommendation21.5 of the RobodebtRoyal Commission Report.
SCHEDULE7— CLIMATE CHANGE, ENERGY, THEENVIRONMENT AND WATER
OUTLINE
1283. This Schedulecontains consequential amendments covering the following Acts inthe Climate Change, Energy, the Environment and Water portfolio:
· Antarctic Marine LivingResources Conservation Act 1981
· Australian National Registryof Emissions Units Act 2011
· Building Energy EfficiencyDisclosure Act 2010
· Clean Energy Legislation(Carbon Tax Repeal) Act 2014
· Environment Protection (SeaDumping) Act 1981
· Fuel Security Act2021
· Hazardous Waste (Regulationof Exports and Imports) Act 1989
· Liquid Fuel Emergency Act1984
· National EnvironmentProtection Measures (Implementation) Act1998
· Offshore ElectricityInfrastructure Act 2021
· Ozone Protection andSynthetic Greenhouse Gas Management Act1989
· Recycling and WasteReduction Act 2020
· Sea Installations Act1987
· Sydney Harbour FederationTrust Act 2001
· Underwater Cultural HeritageAct 2018
· Water Act2007
1284. Amendments to a particular Act may be contained in both Part1(Main amendments) and Part2 (Bulk amendments) of theSchedule.
Part1 — Mainamendments
Hazardous Waste (Regulation ofExports and Imports) Act1989
Item 1: Paragraph 58(1)(a) and (b)
Terminology changes and updating legislativereferences - Notice ofreview rights and ability to request statement ofreasons
1285. The amendments to these provisions ensure that a decision-makermust notify relevant persons of their review rights and of theirability to request a statement of reasons under the ARTBill.This is consistent with the existing law, where the decision-makermust notify relevant persons that they may request a statement thatincludes reasons for the decision under section28 of theAATAct.
Item 2: Subsection58(2)
Repealing provisions that are no longernecessary - Requesting a statement of reasons
1286. This itemrepeals subsection58(2), which provided thatthe requirement to request a statement that includes reasons for adecision does not apply in a case to which subsection28(4) ofthe AATAct applies.
1287. Subsection28(4) of the AATAct provides that a person isnot entitled to request a statement of reasons if such a statementhas already been given. Under the equivalent provision in theARTBill, the decision-maker may refuse the request if thestatement of reasons has already been provided for the decision.Subsection58(2) of the Hazardous Waste (Regulation ofExports and Imports) Act1989 is no longer necessary toachieve this intended outcome.
Recycling and Waste Reduction Act2020
Item 3: Subsection154(3)
Terminology changes and updating legislativereferences - Persons who may apply to the Tribunal
1288. This itemupdates this provision to reflect the terminologyand provisions of the ARTBill. This ensures thatsection154 operates in substantively the same way as theexisting law.
1289. Subsection154(3) of the Recycling and Waste ReductionAct2020 (as amended by this Schedule) disapplies thestandard provisions outlining who can apply to the Tribunal forreview under the ARTBill. Subsection154(2) continues toprovide that instead, an application may only be made by a person affected by the reviewable decision, or someone acting onbehalf of such a person.
1290. The legislative reference to subsection27(1) of theAATAct in the provision is replaced with reference to theequivalent provision under the ARTBill.
1291. Consistent with subsection27(1) of the AATAct, underthe equivalent provision in the ARTBill, a person whoseinterests are affected by a decision (or a person acting ontheir behalf) may apply to the Tribunal for review of thedecision.
Sea Installations Act 1987
Item 4: Paragraphs 76(1)(a) and (b)
Terminology changes and updating legislativereferences - Notice of review rights and ability to requeststatement of reasons
1292. This itemupdates this provision to reflect terminology andprovisions in the ARTBill. This ensures that the provisionoperates in substantively the same way as the current law. Theprovision requires the decision-maker to notify relevant persons oftheir review rights. and that they may request a statement ofreasons under the ARTBill .
1293. The legislative reference to section28 of the AATAct isreplaced with a reference to the equivalent provision under theARTBill. Consistent with section28 of the AATAct,under the equivalent provision in the ARTBill, a person whoseinterests are affected by a decision may make a written request tothe decision-maker to give the person a statement of reasons forthe decision.
1294. Subsection28(4) of the AATAct provides that a person isnot entitled to request a statement of reasons if such a statementhas already been given. Under the equivalent provision in theARTBill, the decision-maker may refuse the request if thestatement of reasons has already been provided for the decision.Although the provision amended by this itemdoes notspecifically refer to this equivalent provision as this isunnecessary, a person’s right to request reasons is stillsubject to this qualification.
1295. This item replaces the reference to a ‘statement in writingsetting out the findings on material questions of fact, referringto the evidence or other material on which those findings werebased and giving the reasons for the decision’, with areference to a ‘statement of reasons’. TheARTBill includes a definition of a statement of reasons,which includes each of these elements in the originalprovision.
Part2 — BULKamendments
Items 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and20: Various provisions in Climate Change, Energy, the Environment andWater portfolio Acts
1296. These itemsinclude tables which make bulk amendments to thefollowing Climate Change, Energy, the Environment and Waterportfolio Acts:
· Antarctic Marine Living Resources Conservation Act 1981
· Australian National Registry of Emissions Units Act 2011
· Building Energy Efficiency Disclosure Act 2010
· Clean Energy Legislation (Carbon Tax Repeal) Act 2014
· Environment Protection (Sea Dumping) Act 1981
· Fuel Security Act 2021
· Hazardous Waste (Regulation of Exports and Imports) Act1989
· Liquid Fuel Emergency Act 1984
· National Environment Protection Measures (Implementation) Act1998
· Offshore Electricity Infrastructure Act 2021
· Ozone Protection and Synthetic Greenhouse Gas Management Act1989
· Recycling and Waste Reduction Act 2020
· Sea Installations Act 1987
· Sydney Harbour Federation Trust Act 2001
· Underwater Cultural Heritage Act 2018
· Water Act 2007
Terminology changes
1297. The amendments make terminology changes, such as replacingreferences to the Administrative Appeals Tribunal, AAT or Administrative Appeals Tribunal Act1975 withreferences to the Administrative Review Tribunal, ART or Administrative Review Tribunal Act2024 . Theseamendments ensure that the Tribunal has jurisdiction to reviewdecisions that are reviewable by the AAT, and that the provisionsunder those laws continue to operate in substantively the same wayfor the Tribunal.
SCHEDULE8— DEFENCE
OUTLINE
1298. This Schedulecontainsconsequential amendments covering the following Acts in the Defence portfolio:
· Defence Force (Home LoansAssistance) Act 1990
· Defence Force Retirement andDeath Benefits Act 1973
· Defence Home OwnershipAssistance Scheme Act 2008
· Defence Reserve Service(Protection) Act 2001
· Defence Trade Controls Act2012
Items 1, 2, 3, 4 and 5: Various provisions in Defence portfolio Acts
1299. These itemsinclude tableswhich make bulk amendments to the Defence portfolio Acts listed above.
Terminology changes
1300. The amendments make terminologychanges, such as replacing references to the Administrative AppealsTribunal and Administrative Appeals Tribunal Act1975 with references to the Administrative Review Tribunal or Administrative Review Tribunal Act2024 . Theseamendments ensure that the Tribunal has jurisdiction to reviewdecisions that are reviewable by the AAT , and that theprovisions under those laws continue to operate in substantivelythe same way for the Tribunal.
SCHEDULE 9—EMPLOYMENTAND WORKPLACE RELATIONS
OUTLINE
1301. This Schedulecontains consequential amendments covering thefollowing Acts in the Employment and Workplace Relationsportfolio:
· Coal Mining Industry (Long Service Leave) Administration Act1992
· Coal Mining Industry (Long Service Leave) Payroll LevyCollection Act 1992
· Student Identifiers Act 2014
1302. Amendments to a particular Act may be contained in both Part1(Main amendments) and Part2 (Bulk amendments) of theSchedule.
Part1 — Mainamendments
Coal Mining Industry (Long ServiceLeave) Administration Act 1992
Item 1: Paragraph 39BC(4)(b)
Terminology changes - Notice of reviewrights
1303. This itemupdates the provision to reflect terminology in theARTBill. This ensures that the provision operates insubstantively the same way as the existing law. The provisionrequires the decision-maker to notify relevant persons of theirreview rights for a decision .
Coal Mining Industry (Long ServiceLeave) Payroll Levy Collection Act 1992
Item 2: Paragraphs 8(5)(a) and (b)
Notice of review rights and ability torequest statement of reasons
1304. This itemupdates the provisions to reflect terminology in theARTBill and remove specific legislative references toprovisions of the AATAct. The provisions operate insubstantively the same way as the existing law. The provisionsrequire the decision-maker to notify relevant persons oftheir review rights for a decision and that they may request astatement of reasons under the ARTBill .
1305. This item replaces the reference to a ‘statement in writingsetting out the findings on material questions of fact, referringto the evidence or other material on which those findings werebased and giving the reasons for the decision’, with areference to a ‘statement of reasons’. TheARTBill includes a definition of a statement of reasons,which includes each of these elements in the originalprovision.
1306. Although this itemdoes not update the provision to refer tothe equivalent provision to section28 of the AATAct,the standard approach to requesting reasons set out in theARTBill, which replace section28, still apply. That is,a person is entitled to request a statement of reasons under theARTBill . However, similar to the effect ofsubsection28(4) of the AATAct, under the ARTBill,a decision-maker may refuse the request if the statement of reasonshave already been provided for the decision.
Item 3: Subsection8(7)
Terminology changes
1307. This itemmakes terminology changes to replace references tothe Administrative Appeals Tribunal Act1975 and theAdministrative Appeals Tribunal with references to the Administrative Review Tribunal Act2024 and theAdministrative Review Tribunal. This ensures the ART hasjurisdiction to review decisions that are currently reviewable bythe AAT.
Student Identifiers Act 2014
Item 4: Subsection13(2)
Updating legislative references
1308. This itemupdates legislative references tosubsection27(1) of the AATAct to instead refer to thebroadly equivalent provision in the ARTBill. Consistent withsubsection27(1) of the AATAct, the equivalent provisionin the ARTBill provides that a person whose interests areaffected by a decision may apply to the Tribunal for review of thedecision where an Act or legislative instrument allows.
1309. Subsection13(2) of the Student Identifiers Act2014 clarifies who can apply for a review of a decision to theAAT for a decision made under subsection13(1) of that Act.Updating the legislative references within section13preserves the original operation of the provision to ensure that itoperates in the same way as the existing law for the Tribunal.
Part2 — bulkamendments
Items 5, 6 and 7: Various provisions in Employment andWorkplace Relations portfolio Acts
1310. These itemsinclude tables which make bulk amendments to thefollowing Employment and Workplace Relations portfolio Acts:
· Coal Mining Industry (Long Service Leave) Administration Act1992
· Coal Mining Industry (Long Service Leave) Payroll LevyCollection Act 1992
· Student Identifiers Act 2014
Terminology changes
1311. The amendments make terminology changes replacing references to theAdministrative Appeals Tribunal and Administrative AppealsTribunal Act 1975 with references to the Administrative ReviewTribunal and Administrative Review Tribunal Act2024 .These amendments ensure that the Tribunal has jurisdiction toreview decisions that were reviewable by the AAT, and that theprovisions under those laws continue to operate in substantivelythe same way for the Tribunal.
SCHEDULE10—FINANCE
Outline
1312. This Schedulecontains consequential amendments covering thefollowing Acts in the Finance portfolio:
· Data Availability and Transparency Act 2022
· Federal Circuit and Family Court of Australia Act 2021
· Governor-General Act 1974
· Papua New Guinea (Staffing Assistance) Act 1973
· Parliamentary Business Resources Act 2017
· Superannuation Act 1922
Items 1, 2, 3, 4, 5 and 6: Various provisions in Financeportfolio Acts
1313. These itemsinclude tables which make bulk amendments to theFinance portfolio Acts listedabove.
Terminology changes
1314. The amendments make terminology changes, such as replacingreferences to the Administrative Appeals Tribunal, AAT or Administrative Appeals Tribunal Act1975 withreferences to the Administrative Review Tribunal, ART or Administrative Review Tribunal Act2024 . Theseamendments ensure that the Tribunal has jurisdiction to reviewdecisions that are reviewable by the AAT, and that the provisionsunder those laws continue to operate in substantively the same wayfor the Tribunal.
SCHEDULE 11—FOREIGNAFFAIRS AND TRADE
OUTLINE
1315. This Schedulecontains consequential amendments covering thefollowing Acts in the Foreign Affairs and Trade portfolio:
· Chemical Weapons (Prohibition) Act 1994
· Export Market Development Grants Act 1997
· Registration of Deaths Abroad Act 1984
1316. Amendments to a particular Act may be contained in both Part1(Main amendments) and Part2 (Bulk amendments) of theSchedule.
Part1 — Mainamendments
Chemical Weapons (Prohibition) Act1994
Item 1: Subsection26(3)
Terminology changes - Notice of reviewrights
1317. This itemupdates the provision to reflect the terminology ofthe ARTBill. This ensures that the provision operates insubstantively the same way as the existing law. The provisionrequires the decision-maker to notify relevant persons of theirreview rights for a decision .
1318. This itemmakes terminology changes to replace references tothe Administrative Appeals Tribunal Act1975 and theAdministrative Appeals Tribunal with references to the Administrative Review Tribunal Act2024 and theAdministrative Review Tribunal. This item is a technical amendmentand is needed to ensure these provisions continue to operate insubstantively the same way in the Tribunal.
Export Market Development Grants Act1997
Item 2: Subsection98(4) (note)
Terminology changes and updating legislativereferences
1319. This itemupdates the note to subsection98(4) to reflectthe terminology and provisions of the ARTBill. Thisitemreplaces the legislative reference to section27A ofthe AATAct in the note with a reference to the equivalentprovision in the ARTBill.
1320. Consistent with section27A of the AATAct,clause266 of the ARTBill requires a decision-maker tonotify persons who are affected by the decision of the making ofthe decision, and their right to have the decision reviewed.
1321. Currently, section27B of the AATAct allows theAttorney-General to make a legislative instrument determininga Code of Practice for Notification of Reviewable Decisions andRights of Review. While this itemdoes not update the note torefer to the equivalent provision to section27B of theAATAct, under the standard provisions in the ARTBill,it would still be a requirement for a decision-maker to have regardto any prescribed rules when giving such notices. It is anticipatedthat any prescribed rules relating to the giving of notices underthe ARTBill would be based on the Code of Practice forNotification of Reviewable Decisions and Rights of Review madeunder subsection27B(1) of the AATAct.
Registration of Deaths Abroad Act1984
Item 3: Subsection27(2)
Terminology changes - Notice of reviewrights
1322. This itemmakes terminology changes to replace references tothe Administrative Appeals Tribunal Act1975 and theAdministrative Appeals Tribunal with references to the Administrative Review Tribunal Act2024 and theAdministrative Review Tribunal. This item is a technical amendmentand is needed to ensure that subsection27(2) of the Registration of Deaths Abroad Act1984 continues tooperate in substantively the same way in the Tribunal.
Part2 — bulkamendments
Items 4, 5 and 6: Various provisions in Foreign Affairs andTrade portfolio Acts
1323. These itemsinclude tables which make bulk amendments to thefollowing Foreign Affairs and Trade portfolio Acts:
· Chemical Weapons (Prohibition) Act 1994
· Export Market Development Grants Act 1997
· Registration of Deaths Abroad Act 1984
Terminology changes
1324. The amendments make terminology changes, replacing references tothe Administrative Appeals Tribunal and Administrative AppealsTribunal Act1975 with references to the AdministrativeReview Tribunal and Administrative Review TribunalAct2024 . These amendments ensure that the Tribunal hasjurisdiction to review decisions that are reviewable by the AAT,and that the provisions under those laws continue to operate insubstantively the same way for the Tribunal.
SCHEDULE 12—HEALTH ANDAGED CARE
OUTLINE
1325. This Schedulecontains consequential amendments covering thefollowing Acts in the Health and Aged Care portfolio:
· Aged Care Act 1997
· Aged Care (Transitional Provisions) Act 1997
· Australian Radiation Protection and Nuclear Safety Act1998
· Dental Benefits Act 2008
· Healthcare Identifiers Act 2010
· Hearing Services Administration Act 1997
· Major Sporting Events (Indicia and Images) Protection Act2014
· Medical Indemnity Act 2002
· Midwife Professional Indemnity (Commonwealth Contribution)Scheme Act 2010
· My Health Records Act 2012
· National Health Security Act 2007
· Private Health Insurance Act 2007
· Tobacco Advertising Prohibition Act 1992
1326. Amendments to a particular Act may be contained in both Part1(Main amendments) and Part2 (Bulk amendments) of theSchedule.
Part1 — Mainamendments
Aged Care Act 1997
Items 1 and 2: Subsections 85-4(6)(note) and 85-5(7)(note)
Terminology changes and updating legislativereferences
1327. These itemsupdate notes to subsections 85-4(6) and 85-5(7) toreflect terminology and provisions with respect to theARTBill. The legislative reference to section27A of theAATAct in the note would be replaced by a reference to theequivalent provision under the ARTBill.
1328. Consistent with section27A of the AATAct,clause266 of the ARTBill requires a decision-maker tonotify persons who are affected by the decision of the making ofthe decision, and their right to have the decision reviewed.
1329. Section 27B of the AATAct allows the Attorney-General to makea legislative instrument determining a Code of Practice forNotification of Reviewable Decisions and Rights of Review. Whilethis itemdoes not update the note to refer to the equivalentprovision to section27B of the AATAct, under thestandard provisions in the ARTBill, it would still be arequirement for a decision-maker to have regard to any prescribedrules when giving such notices. It is anticipated that anyprescribed rules relating to the giving of notices under theARTBill would be based on the Code of Practice forNotification of Reviewable Decisions and Rights of Review madeunder subsection27B(1) of the AATAct.
Aged Care (Transitional Provisions)Act 1997
Items 3 and 4: Subsections 85-4(6)(note) and 85-5(7)(note)
Terminology changes and updating legislativereferences
1330. These itemsupdate notes to reflect new terminology andprovisions with respect to the ARTBill.
1331. The proposed changes to these notes are analogous to the changesproposed to notes in the Aged Care Act 1997. See explanationabove.
Australian Radiation Protection andNuclear Safety Act 1998
Items 5, 6 and 7: Subsections 40(3)(note), 42(3)(note) and80C(3)(note)
Terminology changes and updating legislativereferences
1332. These itemsupdate notes to reflect new terminology andprovisions with respect to the ARTBill.
1333. The proposed changes to these notes are analogous to the changesproposed to notes in the Aged Care Act 1997. See explanationabove.
Dental Benefits Act 2008
Items 8 and 9: Subsections 56D(9) and 56G(5)
Updating legislative references
1334. These itemsupdate legislative references to paragraph29(1)(d) of the AATAct to instead refer to the broadlyequivalent provision in the ARTBill. Section 29 of theAATAct sets out the rules for when applications must belodged with the AAT. In contrast, the general rules for whenapplications must be lodged under the ARTBill would beprescribed by rules.
1335. Currently, subsections 56D(9) and 56G(5) of the Dental BenefitsAct 2008 clarify when the 28 day time period for making anapplication to the AAT begins with respect to a decision. Thesechanges to legislative references ensure that the Tribunal hasjurisdiction to review decisions that were reviewable by the AAT,and that the provisions under those laws continue to operate insubstantively the same way for the Tribunal.
Hearing Services Administration Act1997
Items 10 and 11: Subparagraphs 30(1)(b)(i) and (ii) andparagraphs 34(1)(a) and (b)
Notice of review rights and ability torequest statement of reasons
1336. The amendments to these provisions ensure that a decision-makermust notify relevant persons of their review rights and of theirability to request a statement of reasons under the ARTBill.This is consistent with the existing law, where the decision-makermust notify relevant persons that they may request a statement thatincludes reasons for the decision under section28 of theAATAct.
Medical Indemnity Act 2002
Items 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23:Subsections 27(4)(note), 34E(4)(note), 34K(6)(note), 34L(5)(note),34W(4)(note), 34ZM(4)(note), 34ZZK(5)(note), 34ZZQ(6)(note),34ZZR(7)(note), 34ZZZC(4)(note), 37A(6)(note) and 65(5)(note)
Terminology changes and updating legislativereferences
1337. These itemsupdate notes to reflect terminology and provisionswith respect to the ARTBill.
1338. The proposed changes to these notes are analogous to the changesproposed to notes in the Aged Care Act1997. Seeexplanation above.
Midwife Professional Indemnity(Commonwealth Contribution) Scheme Act 2010
Items 24, 25, 26, 27, 28, 29, 30 and 31: Subsections11(7)(note), 15(6)(note), 18(4)(note), 28(4)(note), 40(4)(note),section57(note), subsections 60(5)(note) andsubsection76(4)(note)
Terminology changes and updating legislativereferences
1339. These itemsupdate notes to reflect terminology and provisionswith respect to the ARTBill.
1340. The proposed changes to these notes are analogous to the changesproposed to notes in the Aged Care Act 1997. See explanationabove.
National Health Security Act 2007
Item 32 : Subsections 83(1)
Terminology changes
1341. This itemmakes terminology changes to replace references tothe Administrative Appeals Tribunal Act1975 and theAdministrative Appeals Tribunal with references to the Administrative Review Tribunal Act2024 and theAdministrative Review Tribunal This ensures that the Tribunal hasjurisdiction to review decisions that are reviewable by theAAT.
Private Health Insurance Act 2007
Item 33: Section 230-1
Terminology changes
1342. This itemmakes terminology changes to replace references tothe Administrative Appeals Tribunal Act 1975 and theAdministrative Appeals Tribunal with references to the Administrative Review Tribunal Act2024 and theAdministrative Review Tribunal in the guidance provision. Thisensures the guidance correctly refers to the Tribunal instead ofthe AAT.
Tobacco Advertising Prohibition Act1992
Item 34: Section 30
Terminology changes
1343. This itemmakes terminology changes analogous to thoseproposed for the National Health Security Act 2007 . See explanation above.
Part1 — bulkamendments
Items 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45 and 46:Various provisions in Health and Aged Care portfolio Acts
1344. These itemsinclude tables which make bulk amendments to thefollowing Health and Aged Care portfolio Acts:
· Aged Care Act1997
· Aged Care (Transitional Provisions) Act1997
· Australian Radiation Protection and Nuclear SafetyAct1998
· Dental Benefits Act2008
· Healthcare Identifiers Act2010
· Hearing Services Administration Act1997
· Major Sporting Events (Indicia and Images) ProtectionAct2014
· Medical Indemnity Act2002
· Midwife Professional Indemnity (Commonwealth Contribution)Scheme Act2010
· My Health Records Act2012
· National Health Security Act2007
· Private Health Insurance Act2007
Terminology changes
1345. The amendments make terminology changes, replacing references tothe Administrative Appeals Tribunal and Administrative AppealsTribunal Act1975 with references to the AdministrativeReview Tribunal and Administrative Review TribunalAct2024 . These amendments ensure that the Tribunal hasjurisdiction to review decisions that were reviewable by the AAT,and that the provisions under those laws continue to operate insubstantively the same way for the Tribunal.
SCHEDULE13— INDUSTRY, SCIENCE ANDRESOURCES
OUTLINE
1346. This Schedulecontainsconsequential amendments covering the following Acts in theIndustry, Science and Resources portfolio:
· Offshore Petroleum andGreenhouse Gas Storage Act2006
· Space (Launches and Returns)Act2018
· Tradex SchemeAct1999
1347. Amendments to a particular Act may be contained in both Part1(Main amendments) and Part2 (Bulk amendments) of thisSchedule.
Part1 — Mainamendments
Offshore Petroleum and Greenhouse GasStorage Act2006
Items 1 and 2: Sections747(note) and 747A(note)
Terminology changes and updating legislativereferences
1349. Consistent with section27A of the AATAct,clause266 of the ARTBill requires adecision-maker to notify persons who are affected by thedecision of the making of the decision, and their right to have thedecision reviewed.
Tradex Scheme Act1999
Item 3: Section 40
Terminology changes and updating legislativereferences
1350. This itemupdates terminology and replaces references toAATAct provisions in the note to section40, withreferences to the equivalent provisions in the ARTBill.
1351. Consistent with section27A of the AATAct,clause266 of the ARTBill requires a decision-maker tonotify persons who are affected by the decision of the making ofthe decision, and their right to have the decision reviewed.
Part2 — bulkamendments
Items 4, 5 and 6: Various provisions in Industry, Science andResources portfolio Acts
1352. These itemsinclude tableswhich make bulk amendments to the following Industry,Science and Resources portfolioActs:
· Offshore Petroleum and Greenhouse Gas StorageAct2006
· Space (Launches and Returns) Act2018
· Tradex Scheme Act1999
Terminology changes
1353. The amendments make terminology changes, such as replacingreferences to the Administrative Appeals Tribunal and the Administrative Appeals Tribunal Act1975 withreferences to the Administrative Review Tribunal and the Administrative Review Tribunal Act2024 . Theseamendments ensure that the Tribunal has jurisdiction to reviewdecisions that were reviewable by the AAT, and that the provisionsunder those laws continue to operate in substantively the same wayfor the Tribunal.
Item 7: Amendments of listed provisions in the Tradex SchemeAct1999
Terminology changes and updating alegislative reference
1354. The amendments make alterations to a note in the Tradex SchemeAct1999, to update a reference to section27B of theAATAct, replacing this with a reference to the equivalentprovision in the ARTBill. Section27B of theAATAct allows the Attorney-General to make a legislativeinstrument determining a Code of Practice for Notification ofReviewable Decisions and Rights of Review. This itemupdatesthe note to state that when giving such notice, thedecision-maker is required to have regard to the mattersprescribed by the rules (if such rules have been prescribed underthe ARTBill). It is anticipated that any prescribed rulesrelating to the giving of notices under the ARTBill would bebased on the Code of Practice for Notification of ReviewableDecisions and Rights of Review made under subsection27B(1) ofthe AATAct.
SCHEDULE14 — INFRASTRUCTURE,TRANSPORT, REGIONAL DEVELOPMENT, COMMUNICATIONS AND THEARTS
OUTLINE
1355. This Schedulecontainsconsequential amendments covering the following Acts in the Infrastructure, Transport, Regional Development, Communications andthe Arts portfolio:
· Adelaide Airport Curfew Act2000
· Aircraft Noise Levy Collection Act1995
· Air Navigation Act1920
· Air Services Act1995
· Interactive Gambling Act2001
· Marine Safety (Domestic Commercial Vessel) National LawAct2012
· National Transmission Network Sale Act1998
· Navigation Act 2012
· Protection of Cultural Objects on Loan Act 2013
· Protection of Movable Cultural Heritage Act 1986
· Protection of the Sea (Civil Liability) Act 1981
· Protection of the Sea (Civil Liability for Bunker Oil PollutionDamage) Act2008
· Protection of the Sea (Prevention of Pollution from Ships)Act1983
· Public Lending Right Act 1985
· Resale Royalty Right for Visual Artists Act 2009
· Shipping Reform (Tax Incentives) Act 2012
· Shipping Registration Act 1981
· Sydney Airport Curfew Act 1995
· Telstra Corporation Act 1991
1356. Amendments to a particular Act may be contained in both Part1(Main amendments) and Part2 (Bulk amendments) of thisSchedule.
Part1 — Mainamendments
Adelaide Airport Curfew Act 2000
Items 1 and 2: Subsections 9(7)(note) and 11(7)(note)
Terminology changes and updating legislativereferences
1357. These itemsupdate notes to reflect the terminology and provisions of theARTBill. These itemsreplace the legislativereference to section27A of the AATAct in the note, witha reference to the equivalent provision under theARTBill .
1358. Consistent with section27A of the AATAct,clause266 of the ARTBill requires adecision-maker to notify persons who are affected by thedecision of the making of the decision, and their right to have thedecision reviewed.
Marine Safety (Domestic CommercialVessel) National Law Act 2012
Item 3: Subsection16(3)
Terminology changes
1359. This itemupdates the provision to reflect the terminology ofthe ARTBill and to reflect modern drafting practices. Theamendments replace references to the Administrative AppealsTribunal Act1975 to refer instead to the Administrative Review Tribunal Act2024 . This amendmentensures that the provision continues to operate in substantivelythe same way for the Tribunal.
Part2 — bulkamendments
Items 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19,20, 21, 22 and 23: Various provisions in Infrastructure , Transport, Regional Development,Communications and the Arts portfolio Acts
1360. These itemsinclude tableswhich make bulk amendments to the following Infrastructure,Transport, Regional Development, Communications and the Arts portfolio Acts:
· Adelaide Airport Curfew Act 2000
· Aircraft Noise Levy Collection Act 1995
· Air Navigation Act 1920
· Air Services Act 1995
· Interactive Gambling Act 2001
· Marine Safety (Domestic Commercial Vessel) National LawAct2012
· National Transmission Network Sale Act 1998
· Navigation Act 2012
· Protection of Cultural Objects on Loan Act 2013
· Protection of Movable Cultural Heritage Act 1986
· Protection of the Sea (Civil Liability) Act 1981
· Protection of the Sea (Civil Liability for Bunker Oil PollutionDamage) Act2008
· Protection of the Sea (Prevention of Pollution from Ships)Act1983
· Public Lending Right Act 1985
· Resale Royalty Right for Visual Artists Act 2009
· Shipping Reform (Tax Incentives) Act 2012
· Shipping Registration Act 1981
· Sydney Airport Curfew Act 1995
· Telstra Corporation Act 1991
Terminology changes
1361. The amendments make terminology changes, such as replacingreferences to the Administrative Appeals Tribunal, the AAT or the Administrative Appeals Tribunal Act1975 withreferences to the Administrative Review Tribunal, the ART or the Administrative Review Tribunal Act2024 . Theseamendments ensure that the Tribunal has jurisdiction to reviewdecisions that were reviewable by the AAT, and that the provisionsunder those laws continue to operate in substantively the same wayfor the Tribunal.
Item 24: Amendments of listed provisions in the AdelaideAirport Curfew Act 2000
Terminology changes and updating legislativereferences
1362. The amendments also update legislative notes to remove referencesto section27B of the AATAct and the Code of Practicefor Notification of Reviewable Decisions and Rights of Reviewdetermined under that section.
1363. Section27B of the AATAct allows the Attorney-General tomake a legislative instrument determining a Code of Practice forNotification of Reviewable Decisions and Rights of Review. Theamendments update the notes to state that when giving such notice,the decision-maker is required to have regard to the mattersprescribed by the rules (if such rules have been prescribed underthe ARTBill). It is anticipated that any prescribed rulesrelating to the giving of notices under the ARTBill would bebased on the Code of Practice for Notification of ReviewableDecisions and Rights of Review made under subsection27B(1) ofthe AATAct.
Item 25: Amendments of listed provisions in the AirNavigation Act 1920
Terminology changes and removing legislativereferences
1364. The amendments make changes to paragraph23A(2)(a) of the Air Navigation Act1920 , to remove the referencesection28 of the AATAct and replace this with areference to a statement of reasons under the ARTBill . The ARTBill includes a definition of a statement of reasons,and under the standard provisions of the ARTBill, a personmay request a statement of reasons, consistent with the frameworkunder section28 of the AATAct.
SCHEDULE15 —VETERANS’AFFAIRS
OUTLINE
1365. Schedule15 of the ConsequentialBill contains amendmentsto a number of Acts in the Veterans’Affairsportfolio.
1366. The amendments retain special provisions that are fundamental tothe operation of Tribunal review for veterans matters, includingprovisions that disapply - or apply instead of -provisions of the ARTBill. These provisions ensure theworkability of this framework, recognising the physical and mentalhealth circ*mstances of the veteran cohort and the unique nature ofmilitary service.
1367. The Schedulerecognises that merits review in two separate bodies isaunique feature of veterans’ entitlement law and theestablishment of the Tribunal does not alter accessarrangements to the VRB. Additional arrangements are made toensure that the new guidance and appeals panel would not createunnecessary caseload for the Tribunal, or delays for claimants inresolving matters which have already been considered by theVRB.
1368. The Schedulealso makes arange of minor amendments,replacing outdated references to the AAT and the AATAct withupdated terminology, replacing references to provisions of theAATAct with references to the equivalent provision under theARTBill and repealing redundant provisions as required. Theseamendments ensure the Tribunal has jurisdiction to review decisionsthat are reviewable by the AAT (including second-tier review ofmatters arising from decisions of the VRB), and that variousprovisions will continue to operate in the same way as the currentlaw for the Tribunal. In some cases, provisions are amended tocover both the AAT and the Tribunal to ensure these provisionsoperate as intended or to manage transitional issues.
1369. This Schedulecontains consequential amendments covering thefollowing Acts in the Veterans’ Affairs portfolio:
· Compensation (Japanese Internment) Act 2001
· Defence Service Homes Act 1918
· Military Rehabilitation and Compensation Act 2004
· Safety, Rehabilitation and Compensation (Defence-related Claims)Act 1988
· Social Security and Veterans’ Affairs LegislationAmendment (One-off Payments and Other 2007 Budget Measures) Act2007
· Treatment Benefits (Special Access) Act 2019
· Veterans’ Entitlements Act 1986
· Veterans’ Entitlements (Clarke Review) Act 2004
1370. Amendments to aparticular Act may be contained in bothPart1(Mainamendments) and Part2(Bulkamendments) of the Schedule.
Part1 — Mainamendments
General terminology changes
1371. A range of itemsin this Schedulemake simple terminologychanges, such as repealing outdated references to the‘AdministrativeAppealsTribunal’,‘theAAT’ and the ‘ AdministrativeAppealsTribunalAct1975’, and replacing them with references to the‘AdministrativeReviewTribunal’, ‘theART’ and the ‘AdministrativeReviewTribunalAct2024’ .These amendments ensure that the Tribunal has jurisdiction toreview decisions that were reviewable by the AAT, and that theprovisions under those laws continue to operate in substantivelythe same way in the Tribunal.
Australian Participants in British NuclearTests and British Commonwealth Occupation Force (Treatment) Act2006
1372. See also item40 for bulk amendments to this Act.
Item 1: Section27 (Note)
Terminology changes and updating legislativereferences - Notice of review rights
1373. This itemupdates the note to reflect new terminology andprovisions with respect to the ARTBill.
1374. The legislative reference to section27A of the AATActin the note is replaced with areference to the equivalentprovision under the ARTBill.
1375. Consistent with section27A of the AATAct,clause266 of the ARTBill requires adecision-maker to notify persons who are affected by thedecision of the making of the decision and their right to have thedecision reviewed.
Compensation (Japanese Internment) Act2001
Items 2 and 3: Section3 (definition of ReviewTribunal )
Terminology changes
1376. These itemsrepeal the term ‘ReviewTribunal’and insert updated terminology for a consistent reference to theTribunal with other Commonwealth statutes.
Item4: Subsection7(2)
Terminology changes
1377. This itemis consequential to the amendment made byitem2, and would effectively confer jurisdiction upon theTribunal for review of adecision made under this Act.
Military Rehabilitation and Compensation Act2004
1378. See also Item42 for bulk amendments to the MRCA.
Item5: Subsection354(1A)
Meaning of decision-maker forMRCA context
1379. This item repeals and substitutes subsection354(1A) toreflect updated terminology and to clarify the meaning of the term‘decision-maker’ where it is used in theARTBill.
1380. ‘Decision-maker’ is a new term set out inclause14 of the ARTBill, and is defined as the personwho makes adecision. However, not all decision-makersunder the MRCA are involved in a Tribunal review. In particular, asthe VRB does not participate in Tribunal proceedings consequentialamendments are required to ensure references to ‘thedecision-maker’ in the ARTBill are references tothe original decision-maker, rather than the VRB.
1381. New subsection(1AA) clarifies that the RepatriationCommission, instead of the VRB, is to be regarded as thedecision-maker for a Tribunal review of a reviewable decisionmade by the VRB, for the purposes of references to parties toTribunal proceedings. This subsectionis consistent with theexisting modification of the AATAct at item5 insection355 (updated by item9 to refer to theARTAct).
1382. Existing subsection(1A) is updated to refer to the equivalentprovision in the ARTBill, that the Repatriation Commission orthe CDF (as the original decision-maker) instead of the VRBmust provide reasons and documents to the Tribunal.
1383. Subsection(1A) alters other occurrences of‘decision-maker’ to ensure that theTribunal’s notification requirements upon an applicationbeing made, remittal of matters, and the operation ofaTribunal’s review decision, as set out under theARTBill, apply to the Repatriation Commission or CDF, as theappropriate original decision-maker.
1384. Notes are inserted at the end of each subsectionto clarifythat the listed provisions of the ARTBill would apply toother reviewable decisions.
Item6: Subsection354(1B)
Terminologychanges and updating legislativereferences
1385. This itemupdates the AATAct reference to the equivalentprovision in the ARTBill such that the Tribunal is to remit adetermination that meets the specified circ*mstances to the MRCC tobe reconsidered at the primary decision-making level, instead ofremitting the matter to the VRB.
1386. The intent of the subsectionis unchanged, and would applywhere the VRB has affirmed an original determination of the MRCC.Additional relevant documentary evidence provided to the Tribunalby the applicant could not be presented to the VRB withoutunreasonable expense or inconvenience, and the Tribunal considersamore favourable determination would otherwise have beenmade.
Item7: Subsection354(1C)
Tribunal remittal
1387. This item repeals and replaces the subsection to reflect updatedterminology and to reference the equivalent provisions of theARTBill on Tribunal remittal, including amatterreferred to in subsection354(1B). The referenced provisionsof paragraphs(a) and (e) reflect the structure ofclause85 of the ARTBill, which differs slightly fromsection42D of the AATAct. The intent of thesubsectionis otherwise unchanged.
1388. Paragraph(a) disapplies the ARTBill provisionsregarding the decision-maker’s actions, timeframes forreconsideration and the Tribunal’s power to extend the timeperiod.
1389. Existing paragraphs(b) and (c) are retained, which set outthat the MRCC must reconsider the remitted decision within28days, otherwise the decision is taken to have beenaffirmed.
1390. Paragraph(d) clarifies that the Tribunal proceeding resumesupon the MRCC making areconsideration decision, or if thedecision is taken to be affirmed in accordance withparagraph(c).
1391. Existing paragraph(e) is replicated to clarify that theARTBill applies following a reconsideration decision, withthe proceedings to resume. An applicant has the option to withdrawtheir application, or proceed, where the review applies to thedecision as affirmed, varied or substituted by thedecision-maker.
Item8: Section355 (Table heading)
Terminology changes
1392. This itemisa terminology update to refer to theARTAct. See explanation of General terminology changesabove.
Items9, 10, 11, 12 and 13: Section355
Updating legislative references
1393. These itemsamend the table in section355, and providemodifications subject to which the ARTBill has effect.Clause5 of the ARTBill allows other legislation tochange how some of the provisions of the ARTAct would apply.These amendments generally replicate the current modifications ofAAT processes and procedures.
1394. Item1 provides contrary to clause57 of theARTBill in allowing for Tribunal sittings outside Australia,for the purposes of areview under Part5 of thisAct.
1395. Item2 provides contrary to clause17 of theARTBill in substituting the claimant, the MRCC and CDF asapplicants who may apply to the Tribunal for areview underPart5 of this Act. Subclause123(2) of the ARTBillis added to item2 to allow the same modifications for anapplication to the guidance and appeals panel.
1396. Item3 provides contrary to subclause18(1) of theARTBill, in specifying the time limit of threemonthsfor VRB determinations, and 60days for other MRCA reviewabledeterminations, for lodgement of an application for Tribunalreview. The generous application period is along-standingarrangement in recognition of the complex nature of issues relatingto determinations of liability and compensation.
1397. Item4 provides contrary to subclauses19(1) and (2) ofthe ARTBill in placing a limit of 12 months on theTribunal’s discretion to extend the application period.
1398. Item5 provides contrary to subclause22(1) of theARTBill in providing for the MRCC, rather than the VRB, to beaparty to areview proceeding on aBoarddetermination. This itemfurther stipulates thataclaimant is aparty for reviews initiated by CDF or theMRCC.
Item 14: Section355A
Applications cannot be made to the Tribunal guidance and appeals panel
1399. This iteminserts anew sectionto disapplyclause123 of the ARTBill. This would mean thatapplications cannot be made to appeal a Tribunal review decision onadetermination by the VRB.
1400. The guidance and appeals panel is anew feature of theTribunal, serving as an internal appeal mechanism, and providingthe opportunity to identify and address systemic issues inadministrative decision-making. Applicants would not have anautomatic right of internal appeal to the guidance and appealspanel.
1401. This provision would preclude applications for referral to theguidance and appeals panel for determinations under the MRCA whichhave been reviewed by the VRB. As an initial layer of externalreview has already occurred for these decisions, this arrangementwould prevent duplication, and allow atimely andcost-efficient review pathway for veteran matters.
1402. It would remain open to the Tribunal President to referapplications for review of VRB matters raising issues of systemicreview to the guidance function on first review. This balancedapproach would assist to influence the quality ofdecision-making without unnecessarily drawing out reviews forveterans and their dependants. If Tribunal review does not provideasatisfactory response, the claimant may pursue judicialreview in the courts on points of law.
Item15: Subsection357(7)
Terminology changes
1403. This itemis aterminology update and reflects theorganisational structure of the Tribunal. The provision providesthat in the absence of an agreement between the parties, theTribunal may order the costs be taxed by the Principal Registrar,or an authorised person.
1404. This change aligns with paragraph281(1)(d) of theARTBill which provides for an authorised person to undertakethis function. The taxing of costs involves the Tribunalundertaking an assessment of the amount of costs payable by oneparty to another.
Safety, Rehabilitation and Compensation(Defence-related Claims) Act 1988
1405. See also item43 for bulk amendments to the DRCA.
Item 16: Subsection64(3)
Updating legislative references
1406. This itemupdates the AATAct reference to the equivalentprovision in the ARTBill. The intent of thesubsectionis unchanged, and the provision reinforcessubsection(1), that only the claimant and the Commonwealthmay apply to the Tribunal for areview of areviewabledecision.
Items17 to 18: Subsection65(3);Subsection65(4)
Application of the ARTBill
1407. These itemsamend the table in section355, which providecontrary to the application of some provisions of the AATAct,with updated references in the ARTBill. Clause5 of theARTBill allows other legislation to change how some of theprovisions of the ARTBill would apply. These amendmentsgenerally replicate the current modifications of AAT processes andprocedures.
1408. Item17 provides contrary to clause57 of theARTBill, in allowing for sitting locations of the Tribunal toinclude places outside Australia.
1409. Item18 provides contrary to subclause18(1) of theARTBill in specifying the time limit of 60 days for lodgementof an application for Tribunal review of reviewable determinationsunder the DRCA. The generous application period isalong-standing arrangement in recognition of the complexnature of issues relating to determinations of liability andcompensation.
Items19 to 20: Subsection67(13);Subsection67(14)
Terminology changes and updating legislativereferences
1410. Section67 of DRCA sets out the circ*mstances under which theTribunal may require the Commonwealth to pay aclaimant thecosts they incurred for the proceedings. The taxing of costsreferred to in subsection(13) involves the Tribunalundertaking an assessment of the amount of costs payable by oneparty to another.
1411. Item19 is aterminology update and reflects theorganisational structure of the Tribunal. Subsection(13)provides that in the absence of an agreement between the parties,the Tribunal may order the costs be taxed by the PrincipalRegistrar, or an authorised person. This change aligns withparagraph281(1)(d) of the ARTBill which provides for anauthorised person to undertake this function.
1412. Item20 updates the AATAct reference to the equivalentprovision in the ARTBill to clarify that the Commonwealth isaparty to Tribunal proceedings for the purposes of thissection.
Treatment Benefits (Special Access) Act2019
1413. See also item45 for bulk amendments to this Act.
Terminology changes and updating legislativereferences
Item21: Section36 (note)
1414. This itemupdates the note to this provision to reflect newterminology and provisions with respect to the ARTBill.
1415. The legislative reference to section27A of the AATActin the note is replaced with areference to the equivalentprovision under the ARTBill.
1416. Consistent with section27A of the AATAct,clause266 of the ARTBill requiresadecision-maker to notify persons who are affected bythe decision of the making of the decision and their right to havethe decision reviewed.
Veterans’ Entitlements Act 1986
1417. See also item46 for bulk amendments to the VEA.
Item22: Section35J (note)
Terminology changes and updating legislativereferences
1418. This itemupdates the AATAct reference in the note atthe end of Section35J to the equivalent provisions of theARTBill that an ART decision is taken to be the decision ofthe decision-maker. The note would clarify thatadecision by the Tribunal that the veteran has renderedqualifying service is exhaustive for the purpose of the VEA.
Item23: At the end of section115B
Timing of applications for review to theAdministrative Review Tribunal
1419. This iteminserts new subsection(12) to disapply subclauses18 and 19 of theARTBill in relation to timeframes for areviewapplication relating to a decision under theVeterans’VocationalRehabilitationScheme(VVRS).
1420. The VVRS determination made by the Repatriation Commission undersection115B confers jurisdiction on the Tribunal for reviewof VVRS decisions and modifies the application time period. Thelegislative instrument modifies the AATAct to provide anapplication time limit of threemonths and places alimitof 12months on the Tribunal’s discretion to extend theapplication period.
1421. Clause5 of the ARTBill allows other legislation tochange how some of the provisions of the ARTBill apply.However, unlike the AATAct, a contrary intention to displacethe ARTBill can only be prescribed by a legislativeinstrument if the parent Act authorises it to do so.
1422. Subclause5(2) of the ARTBill gives permission fordelegated legislation to amend or displace the operation of theARTBill, providing the Act under which the instrument ismade, authorises that ability. In accordance with this requirement,new subsection(12) specifies that the VVRS can containprovisions that provide contrary to the operation of the timeframerules and extension thereof, for an application to the Tribunal forreviews of a reviewable VVRS decision.
Item24: Subsection155A(2)
Updating legislative references
1423. This itemupdates the AATAct reference to the equivalentprovision in the ARTBill on giving reasons for decisions. Theintent of the subsectionis unchanged.
1424. The provision would clarify that anotice of the specified VRBdecisions must inform the person about their right of review to theTribunal. The person’s right to request reasons from thedecision-maker under the ARTBill is subject to theexception where reasons for the reviewable decision have alreadybeen given to the applicant.
Items 25, 26 and 27:Subsection175(2E), 175(4), and 175(5)
Applications for review
1425. Section175 sets out the decisions in respect of which anapplication may be made to the Tribunal for review. Theseitemsupdate the AATAct references to the equivalentprovisions of the ARTBill.
1426. The intent of each of the subsections is unchanged. Theseitemsclarify that areview application to the Tribunalis subject to clause34 of the ARTBill, which sets out how aperson is to apply forareview
1427. The note at the end of subsection(2E) is also updated toreflect the updated reference to the ARTBill. This note is asignpost on the purpose of clause34 of the ARTBill.
Item28: Subsection176(1)
Meaning of decision-maker forVEA context
1428. This item repeals and substitutes subsection176(1) to reflectupdated terminology and to clarify the meaning of the term‘decision-maker’ where it is used in theARTBill.
1429. ‘Decision-maker’ is a new term set out inclause14 of the ARTBill, and is defined as the personwho makes a decision. However, as the VRB does not participate inTribunal proceedings, consequential amendments are required toensure references to ‘the decision-maker’ in theARTBill are references to the original decision-maker,the Repatriation Commission, rather than the VRB.
1430. Subsection(1) clarifies that the Repatriation Commissioninstead of the VRB, is to be regarded as the decision-makerfor a Tribunal review of areviewable decision made by theVRB, for the purposes of references to parties to Tribunalproceedings. This is consistent with the existing modification ofthe AATAct at subsection(6) (updated by item32 torefer to the ARTBill).
1431. Other occurrences of ‘decision-maker’ in theARTBill are also clarified to ensure that provision ofreasons and documents to the Tribunal, the Tribunal’snotification requirements upon an application being made, remittalof matters, and the operation of aTribunal’s reviewdecision, as set out under the ARTBill, apply to theRepatriation Commission, as the appropriate originaldecision-maker.
Items29, 30, 31, 32, 33, 34 and 35:Subsection176(2); Subsection176(3);Subsection176(4); Subsection176(5) and (6);Subsection176(7); Subsection176(8);Subsection176(9)
Application of the ARTBill
1432. These itemsmake further amendments to section176 whichprovide contrary to some provisions of the AATAct for VEAmatters, with updated terminology and references to theARTBill. Clause5 of the ARTBillallows otherlegislation to change how some of the provisions of theARTBill apply. These amendments generally replicate thecurrent modifications of AAT processes and procedures.
1433. See also item46 for bulk amendments to this section.
1434. Item29 provides contrary to clause17 of theARTBill such that the Repatriation Commission is apartywith interests and may apply to the Tribunal for areview ofaVRB decision in the specified circ*mstances.
1435. Item30 disapplies clause268 of the ARTBill suchthat person affected by the specified reviewable decisions may notrequest reasons from the decision-maker, where the relevantnotification provisions of the VEA have been met and acopy ofthe decision and relevant statements have been given to the person.This provision is consistent with the exception set out insubclause268(7) of the ARTBill.
1436. Item31 repeals and substitutes subsection(4) to providefor application lodgement timeframes and extensions of time. Thisitemprovides contrary to clause18 of the ARTBillin specifying the time limit of threemonths for lodgement ofan application for Tribunal review of reviewable determinationsunder the VEA. The subsectionis based on existingparagraph(4)(a). The generous application period isalong-standing arrangement in recognition of thecomplex nature of issues relating to determinations of liabilityand compensation.
1437. New subsection(4A) is based on existingparagraph(4)(b), which provides contrary to clause19 ofARTBill in retaining alimit of 12months on theTribunal’s discretion to extend the application period.
Parties to aproceeding before theTribunal
1438. Item32 redrafts subsections(5) and (6) to enhancereadability, and the AATAct reference is updated to reflectthe intent to provide contrary to subclause22(1) of theARTBill.
1439. New subsection176(5) would clarify that parties to a Tribunalreview proceeding are the applicant and the Commission, or wherethe Commission is the applicant, the veteran or adependant ofthe deceased veteran.
Tribunal decision on review of reviewabledecision
1440. Items33 to 35 provide contrary to clause105 of theARTBill in replicating the existing arrangements on the typesof decisions the Tribunal can make following review ofadetermination under the VEA.
1441. Where the Tribunal sets aside certain reviewable decisions of theRepatriation Commission or the Board, the effect is to reset theclaimant’s entitlement to how it existed before thereviewable decisions were made. That is, the outcome of theTribunal’s decision to set aside the reviewable decisionwould be:
· not to cancel or suspend, or reduce the rate of,apension or attendant allowance
· not to increase the rate of apension or attendantallowance , or
· a person does not cease to be entitled toaseniors’ health card.
1442. The amendments to subsections(7), (8) and (9) clarify that inthese instances, the Tribunal is not required to makeasubstitute decision. In accordance with clause105 ofthe ARTBill, the Tribunal may set aside the reviewabledecision and remit the matter to the decision-maker. Theintent is to facilitate efficient resolution of these matters.
Item36: At the end of section176
Applications cannot be made to the Tribunalguidance and appeals panel
1443. This iteminserts anew sectionto disapplyclause123 of the ARTBill. This would mean thatapplications cannot be made to refer to appeal a Tribunal reviewdecision on a determination by the VRB.
1444. The guidance and appeals panel is anew feature of theTribunal, serving as an internal appeal mechanism, and providingthe opportunity to identify and address systemic issues inadministrative decision-making. Applicants would not have anautomatic right of internal appeal to the guidance and appealspanel.
1445. This provision precludes applications for referral to the guidanceand appeals panel determinations under the VEA which have beenreviewed by the VRB. As an initial layer of external review hasalready occurred for these decisions, this arrangement preventsduplication, and allows atimely and cost-efficient reviewpathway for veteran matters.
1446. It remains open to the Tribunal President to refer VRB mattersraising issues of systemic review to the guidance function on firstreview. This balanced approach assists to influence the quality ofdecision-making without unnecessarily drawing out reviews forveterans and their dependants. If Tribunal review does not provideasatisfactory response, the claimant may pursue judicialreview in the courts on points of law.
Item37: Subsection177 (1)
Updating legislative references andterminology changes
1447. This itemprovides contrary to clause107 of theARTBill in replicating the existing arrangements on theoperative dates of the specified Tribunal review decisions.
1448. Section177 sets out the conditions for backdating certainbenefits, or deeming acancellation as suspension. Theapproach aligns with the backdating provisions applicable to anoriginal decision under the VEA for maximum benefit, and preventsthe Tribunal from setting adate thatadecision-maker could not have made under this Act.This amendment would ensure the principle of equitable outcomesapply to a Tribunal review decision.
Item38: Section216
Technical amendment
1449. This itemis atechnical amendment consequential toanew subsectionbeing inserted by item39below.
Item39: At the end of section216
Regulations may be modified
1450. This iteminserts new subsection(2) to meet therequirements of subclause5(2) of the ARTBill.
1451. Clause5 of the ARTBill allows other legislation tochange how some of the provisions of the ARTBill will apply.However, unlike the AATAct, acontrary intention todisplace the ARTBill can only be prescribed byalegislative instrument if the parent Act authorises it to doso.
1452. The following regulations made under the VEA confer jurisdiction onthe Tribunal and alter the application time period:
· Veterans’ Entitlements (Special Assistance -Motorcycle Purchase) Regulations 2001
· Veterans’ Entitlements (Special Assistance)Regulations1999
· Veterans’ Entitlements (Rehabilitation Allowance)Regulations
1453. Subclause5(2) of the ARTBill gives permission fordelegated legislation to amend or displace the operation of theARTBill, providing the Act under which the instrument ismade, authorises that ability.
1454. In accordance with this requirement, new subsection(2)specifies that regulations made under this Act can containprovisions contrary to the operation of the timeframe rules, for anapplication to the Tribunal for reviews of areviewabledecision under the regulation.
Part2 — Bulkamendments
Items40, 41, 42, 43, 44, 45, 46 and 47: Variousprovisions of Veterans’ Affairs portfolio Act
1455. These itemsinclude tables which make bulk amendments to thefollowing Veterans’ Affairs portfolio Acts:
· Australian Participants in British Nuclear Tests and BritishCommonwealth Occupation Force (Treatment) Act 2006
· Defence Service Homes Act 1918
· Military Rehabilitation and Compensation Act 2004
· Safety, Rehabilitation and Compensation (Defence related Claims)Act1988
· Social Security and Veterans’ Affairs LegislationAmendment (One off Payments and Other 2007 Budget Measures)Act2007
· Treatment Benefits (Special Access) Act 2019
· Veterans’ Entitlements Act 1986
· Veterans’ Entitlements (Clarke Review) Act 2004
Terminology changes
1456. The amendments make terminology changes, replacing references tothe Administrative Appeals Tribunal and Administrative AppealsTribunal Act1975 with references to the AdministrativeReview Tribunal and Administrative Review TribunalAct2024 . These amendments ensure that the Tribunal hasjurisdiction to review decisions that were reviewable by the AAT,and that the provisions under those laws continue to operate insubstantively the same way for the Tribunal.
SCHEDULE16—TRANSITIONAL PROVISIONS
OUTLINE
1457. This Schedulecontains provisions relating to the transitionfrom the AAT to the Tribunal. The provisions ensure that theTribunal is equipped to begin operations from its establishment.The provisions provide clarity about what will happen after thetransition time to rights and requirements that existed under theold law, and proceedings in progress immediately before thetransition time. The provisions also provide transitionalarrangements for certain members of the AAT.
1458. This Scheduleincludes provisions to:
· facilitate the establishment of the Tribunal, including byclarifying the annual reporting requirements, transferring stafffrom the AAT to the Tribunal, transferring records from the AAT tothe Tribunal, transitioning registries of the AAT to the Tribunal,and dealing with related matters
· preserve requirements that existed immediately before thetransition time for decision-makers to give notices ofdecisions, notices of appeal and review rights, and reasons fordecisions
· ensure that, if a person had a right to apply to the AATimmediately before the transition time, the person may make theapplication to the Tribunal after the transition time
· transfer proceedings underway in the AAT immediately before thetransition time to the Tribunal, in a manner that minimisesdisruption to the parties
· preserve rights that existed under the old law for persons to makeapplications to courts, and ensure that court proceedings inprogress immediately before the transition time can continue
· automatically transfer some members of the AAT to theTribunal - namely, thePresident, Deputy Presidents who are judges, and other membersappointed to the AAT through a publicly-advertised,merit-based appointment process from 1January 2023onwards
· provide for arrangements relating to remuneration and leaveentitlements for certain members of the AAT who are appointed tothe Tribunal
· provide for compensation for certain members of the AAT who are notappointed to the Tribunal, and
· enable the Minister to make rules relating to transitionalarrangements.
PART1—PRELIMINARY
Item 1: Definitions
1459. Item 1 defines a number of terms for the purpose ofSchedule16.
1460. AAT means the Administrative Appeals Tribunal.
1461. ART means the Administrative Review Tribunal.
1462. Reporting period has the same meaning as in the PGPAAct.
1463. Rules means the rules made under item51.
1464. This Schedulerefers to things happening before, at or afterthe transition time. The transition time means thetime the new Act commences. The Tribunal will come into operationat this time.
1465. This Schedulerefers to things being done under the old law orthe new law. The old law means the law of theCommonwealth as in force time to time before the transition time.The new law means the law of the Commonwealth as inforce from time to time after the transition time.
1466. This Schedulerefers to things being done under the old Actand the new Act. The oldAct means the Administrative Appeals Tribunal Act 1975 as in forceimmediately before the transition time. The new Act means the Administrative Review Tribunal Act 2024 .
Item 2: Applications of Parts 3 to 6
1467. This itemprovides that Parts 3 to 6 of thisSchedulehave effect subject to provisions in Part8 ofthis Schedule. Part8 sets out separate transitionalarrangements for matters specific to particular Acts.
PART2—ESTABLISHMENT OF THE ART
1468. Part2 includes provisions to facilitate the establishment ofthe Tribunal.
Item 3: President’s report for period ended beforetransition time
1469. This itemprovides for the transition of the annual reportingobligations under section24R of the AATAct. It applieswhere an annual report for a financial year that has ended has notbeen prepared when the transition time occurs.
1470. Despite the transition, this itemrequires the President ofthe Tribunal to prepare an annual report in accordance with theAATAct if the following conditions are satisfied:
· the transition time occurs after the end of a financial year,and
· the President of the AAT had not prepared the annual report forthat financial year.
1471. The Minister must cause a copy of the report to be tabled in eachHouse of the Parliament as soon as practicable.
Item 4: Registrar’s report for period ended beforetransition time
1472. This itemprovides for the transition of annual reportingobligations under section46 of the PGPA Act. It applies wherean annual report for a reporting period that has ended has not beenprepared when the transition time occurs.
1473. This itemrequires the Principal Registrar to prepare anannual report in accordance with section46 of the PGPA Actif:
· the transition time occurs after the end of a financial year,and
· the Registrar of the AAT had not prepared the annual report forthat financial year.
Item 5: President’s report for period in which transitiontime occurs
1474. This itemprovides for the transition of the annual reportingobligations under section24R of the AATAct from thePresident of the AAT to the President of the Tribunal, incirc*mstances where the transition time occurs during a financialyear.
1475. The effect of this itemis that if the transition time occurspartway through a financial year, the President of theTribunal’s first annual report under section242 of thenewAct must also cover the matters which would have beencovered by an annual report under section24R of theAATAct for the partof the financial year before thetransition time.
Item 6: Registrar’s report for period in which transitiontime occurs
1476. This itemprovides for the transition of annual reportingobligations under section46 of the PGPA Act from theRegistrar of the AAT to the Principal Registrar of the Tribunal, incirc*mstances where the transition time occurs during a financialyear.
1477. The effect of this itemis that if the transition time occurspartway through a financial year, the first annual report bythe Tribunal’s Principal Registrar must also cover thematters which would have been covered by an annual report undersection46 of the PGPA Act for the AAT for the partofthe financial year before the transition time.
Item 7: Records
1478. This itemprovides that any records or documents that were inthe possession of the AAT immediately before the transition timeare to be transferred to the Tribunal after the transitiontime.
Item 8: Return of documents by courts
1479. This itemprovides that if, immediately before the transitiontime, a court was in possession or control of a document, and at atime after the transition time the court would have had to returnthe document to the AAT if the AATAct had not been repealed,the court must now return the document to the Tribunal.
1480. For example, if the AAT had given a document to the FCA undersubsection46(1) of the AATAct before the transitiontime, this itemwould ensure that the document can be returnedto the Tribunal after the transition time.
Item 9: Return of documents by AAT
1481. This itemprovides that if, immediately before the transitiontime, the AAT was in possession or control of a document, and at atime after the transition time the AAT would have had to return thedocument to a person or a body if the AATAct had not beenrepealed, the Tribunal must return the document.
1482. For example, if a person had given a document to the AAT and theAAT would have been required to return the document to the personunder subsection36(2) of the AATAct before thetransition time, this itemensures that the Tribunal mustreturn the document after the transition time.
Item 10: Pending proceedings
1483. This itemprovides that if, immediately before the transitiontime, the AAT is a party to proceedings in any court or tribunal,the Tribunal is substituted as the relevant party to thoseproceedings.
Item 11: Staff
1484. This itemprovides for the transition of AAT staff. The effectof this itemis that any staff engaged by the AAT undersection24N of the AATAct immediately before thetransition time are taken to be staff of the Tribunal undersection238 of the new Act after the transition time, on thesame terms and conditions. This itemensures that the repealof the AATAct does not affect a person’s continuity ofemployment.
Item 12: Registries
1485. This itemprovides for the transition of AAT registries. Theeffect of this itemis that, after the transition time, anyregistry of the AAT that had been established under section64of the AATAct and was in existence immediately before thetransition time continues to exist as if it had been established bythe Minister under section243 of the new Act.
Item 13: References in instruments
1486. This itemis intended to ensure that, after the transitiontime, instruments with outdated terminology can be interpretedconsistently with the new Act. This itemis intended to covera broad range of instruments, including legislative andnon-legislative instruments, as well as commercialinstruments.
1487. Subitems13(1) and (2) provide that if an instrument was inforce immediately before the transition time, the relevantinstrument would have effect after the transition time with thefollowing substitutions, as if:
· a reference to the AATAct were a reference to the new Act
· a reference to a provision of the AATAct were a reference toan equivalent, or nearly equivalent, provision of the new Act,and
· a reference to the AAT were a reference to the Tribunal.
1488. Subitem13(3) clarifies that the rules may provide that thesubstitutions do not apply in relation to a specified instrument,or a particular reference in a specified instrument.
1489. Subitem13(4) provides that, to avoid doubt, thisitemdoes not prevent the relevant instrument from beingamended or repealed after the transition time.
PART3—NOTICE, REVIEW RIGHTS AND REASONS
1490. This Partprovides for the transition of requirements for aperson to provide a notice of decision, notice of appeal and reviewrights, or reasons for a decision. It also provides for thetransition of rights to request reasons for a decision.
Item 14: Notice of decisions
1491. This itemensures that a requirement to give a notice ofdecision that had not been met before the transition time continuesto apply after the transition time. This itemapplies inrelation to decisions by decision-makers, and does not coverdecisions of the AAT.
1492. This itemapplies if a decision was made under the old law,the old law required a notice of the decision to be given to aperson, and the notice was not given before the transition time.The effect of this itemis that, after the transition time,the notice must still be given. The timeframe for giving the noticeunder the old law continues to apply. However, the notice mustotherwise be given as if the decision had been made under the newlaw-that is, the notice must be given inaccordance with the relevant requirements for giving a notice ofdecision under the new law.
1493. For example, if, before the transition time, a person has not met arequirement under section27A of the AATAct to give anotice of decision, the effect of this itemis that the personwill still be required to give the notice after the transitiontime. The same timeframe for giving the notice will apply. However,the notice must otherwise be given in accordance with the relevantrequirements of the new Act.
1494. This has the consequence that all notices of decision given afterthe transition time, including notices in relation to decisionsmade before the transition time, must be given in accordance withthe new law. This will ensure there is consistency in notices ofdecision that are given after the transition time.
1495. The only aspect of the old law that continues to apply for thesenotices is the timeframe for giving the notice. Preserving the oldtimeframes is intended to reduce administrative complexity, asdecision-makers will not need to recalculate timeframes after thetransition time.
Item 15: Notice of reviewrights
1496. This itemensures that a requirement to give a notice ofreview or appeal rights that had not been met before the transitiontime continues to apply after the transition time. Thisitemapplies in relation to decisions by decision-makers, anddoes not cover decisions of the AAT.
1497. This itemapplies if a decision was made under the old law,the old law required a notice of review or appeal rights inrelation to the decision to be given to a person, and the noticewas not given before the transition time. The effect of thisitemis that, after the transition time, the notice must stillbe given. The timeframe for giving the notice under the old lawcontinues to apply. However, the notice must otherwise be given asif the decision had been made under the newlaw-that is, the notice must be given inaccordance with the relevant requirements for giving a notice ofdecision under the new law.
1498. For example, if, before the transition time, a person has not met arequirement under section27A of the AATAct to give aperson a notice of the person’s right to have adecisionreviewed, the effect of this itemis that the person willstill be required to give the notice after the transition time. Thesame timeframe for giving the notice will apply. However, thenotice must otherwise be given in accordance with the relevantrequirements of the new law.
1499. This has the consequence that all notices of review or appealrights given after the transition time, including notices inrelation to decisions made before the transition time, must begiven in accordance with the new law. This will ensure there isconsistency in notices that are given after the transitiontime.
1500. The only aspect of the old law that continues to apply for thesenotices is the timeframe for giving the notice. Preserving the oldtimeframes is intended to reduce administrative complexity, asdecision-makers will not need to recalculate timeframes after thetransition time.
Item 16: Reasons for decisions—mandatory
1501. This itemensures that a requirement to give reasons for adecision that had not been met before the transition time continuesto apply after the transition time. This itemapplies inrelation to decisions by decision-makers, and does not coverdecisions of the AAT.
1502. This itemapplies if a decision was made under the old law,the old law required reasons for the decision to be given to aperson, and the reasons were not given before the transition time.The effect of this provision is that, after the transition time,the reasons must still be given. The timeframe for giving thereasons under the old law continues to apply. The reasons mustotherwise be given as if the decision had been made under the newlaw-that is, the reasons must be given inaccordance with the relevant requirements under the new law forgiving reasons.
Item 17: Reasons for decisions—on request
1503. This itemensures that a person’s entitlement to requestreasons for a decision continues to be available after thetransition time. This itemapplies in relation to decisions bydecision-makers, and does not cover decisions of the AAT.
1504. This itemapplies if a decision was made under the old law,and the old law enabled aperson to request reasons for thedecision, but the person had not made the request before thetransition time. The effect of this provision is that, after thetransition time, the person may make the request, so long as thetime limit for making the request under the old law has notexpired. If a person makes a request, the request must be made asif the decision had been made under the newlaw-that is, the request must be made inaccordance with the relevant requirements for requesting reasonsunder the new law.
1505. For example, if, immediately before the transition time, a personwas entitled under subsection28(1) of the AATAct torequest a statement of reasons from a decision-maker inrelation to a decision made under the old law, the person may makethe request after the transition time. If the timeframe for givingthe statement of reasons was governed by paragraph 28(1A)(a) of theAATAct-which provides that a request forastatement of reasons must be made within 28 days after theperson received the decision in writing-theperson must make the request within that timeframe.
Item 18: Reasons requested but not received
1506. This itemensures that a requirement under the old law to givewritten reasons for adecision, arising from a request madebefore the transition time, continues to apply after the transitiontime.
1507. This itemapplies if, under the old law, a decision was made,a person requested reasons for the decision, and the reasons hadnot been given before the transition time. The effect of thisprovision is that, after the transition time, the reasons muststill be given. The timeframe for giving the reasons under the oldlaw continues to apply. Otherwise, the reasons must be given as ifthe request had been made under the new law-thatis, the relevant requirements under the new law relating to givingreasons for decision on request will apply.
1508. For example, if, before the transition time, a person made arequest under subsection28(1) of the AATAct for astatement of reasons in relation to a decision, but the reasonswere not given before the transition time, the reasons must begiven after the transition time. In accordance withsubsection28(1) of the AATAct, the reasons must begiven as soon as practicable, but in any case, within 28 days ofthe request. Otherwise, the statement of reasons must be given inaccordance with the relevant requirements under the ARTBillfor the giving of statements of reasons on request.
PART4—RIGHTS TO APPLY
1509. This Partprovides for the transition of matters relating toapplications to the AAT, including notices that refer to aperson’s right to apply to the AAT for review ofadecision, and the making of applications.
Item 19: Notice of right to apply
1510. This itempreserves the effectiveness of notices made beforethe transition time that refer to a person’s right to applyfor review of a decision to the AAT.
1511. This itemapplies if:
· a notice was made under the old law before the transition time, andthe notice is given to a person
· the notice states that the person can apply for review of adecision to the AAT
· the period for making the application ends after the transitiontime (or there is no period for making the application), and
· the person has not made the application.
1512. The effect of this itemis that the notice is taken to includea statement to the effect that the person is entitled to apply forreview of the decision to the Tribunal, and is taken to have beenmade under, and given in accordance with, the new law.
1513. This item’s reference to a notice being ‘made’ isintended to capture a notice being prepared by the decision-maker,before being given to the recipient. This itemensures that anotice made under the old law before the transition time thatrefers to the AAT can be read, after the transition time, asreferring to the Tribunal. This means that, if a person made anotice referring to the AAT before the transition time, the noticeremains effective and the person does not need to remake or reissuethe notice with updated references after the transition time.
Item 20: Applications to AAT
Making an application
1514. This itemensures that, if a person was entitled to make anapplication to the AAT immediately before the transition time, theperson can make the application to the Tribunal after thetransition time.
1515. This itemis intended to cover all types of applications thata person could make to the AAT under the old law. This includesapplications for the review of a decision. In this way, thisitemensures that the abolition of the AAT does not result ina person losing their entitlement to seek Tribunal review. Thisitemis also intended to cover other types of applicationsthat could have made to the AAT-for example,applications for extensions of time and applications that could bemade in the course of proceedings.
1516. This itemapplies if, immediately before the transition time,a person was entitled to make an application to the AAT. A personmay make the application to the Tribunal after the transition time,if the time limit for making the application under the old law hasnot expired. The application must otherwise be made in accordancewith the new law. This ensures that, following the transition time,all applications to the Tribunal are made in a consistentmanner.
Dealing with an application
1517. Subitems20(3), (4), (5) and (6) set out the manner in whichthe Tribunal must deal with the application. The starting point isthat the Tribunal must, as far as possible, deal with theapplication under the new law. However, this is subject to arequirement that the Tribunal must deal with the application in amanner that it considers is fair and efficient. In doing so, theTribunal must have regard to the impact of thetransition-that is, the repeal of theAATAct, the enactment of the new Act, and the effect(including the operation) of the Administrative Review Tribunal(Consequential and Transitional Provisions No. 1) Act2024 -in relation to the application.
1518. Subitems20(3), (4), (5) and (6) clarify that the Tribunalwill have flexibility in how it deals with applications of thiskind. The Tribunal can departfrom the new law incirc*mstances where it considers it fair and efficient to doso.
Example
1519. Before the transition time, Person A prepares an application forthe AAT to review adecision using forms current at that time.Person A lodges the application with the Tribunal after thetransition time. If the forms on which Person A made theapplication are outdated after the transition time, the applicationmay not be in accordance with the new law. Subitem20(3) hasthe effect that the Tribunal could nonetheless decide to accept theapplication, if it considers that this would be efficient and fair(for example, because it would be burdensome andtime-consuming to require Person A to rewrite and resubmitthe application using a new form, and the Tribunal considers itcould deal effectively with the application in its existingform).
Item 21: No duplicate applications
1520. This itemprevents a person from making a duplicateapplication for review of a decision.
1521. The effect of this itemis that, if a person made anapplication to the AAT for review of a decision (the initialdecision), and the AAT made a decision on the application ordismissed the application, the person cannot apply to the Tribunalfor review of the initial decision.
1522. The effect of this itemis also that, if a person made anapplication to the AAT for review of an initial decision before thetransition time, and immediately before the transition time the AAThad not made a decision on the application, the person cannot applyto the Tribunal for review of the initial decision after thetransition time. This is because, under item24, theapplication to the AAT will be automatically transferred to theTribunal at the transition time. The person will not be able tomake a duplicate application to the Tribunal.
1523. The purpose of this itemis to ensure that thisScheduledoes not introduce additional rights to seek reviewthat would not otherwise be available.
Item 22: AAT decisions made before transition time
1524. This itemdeals with various transitional matters relating todecisions of the AAT made before the transition time.
Requests for written reasons
1525. Subitems22(1) and (2) preserve a person’s entitlementto apply for written reasons for a decision made by the AAT. If,immediately before the transition time, the person was entitled tomake a request for written reasons for a decision made by the AAT,the person may make the application to the Tribunal after thetransition time. The relevant provisions of the old law continue toapply in relation to the request. This means that the person mustmake the request, and the Tribunal must deal with the request, inaccordance with the old law.
1526. These subitemsare necessary because, under the ARTBill,the Tribunal will be required to give written reasons fordecisions. Accordingly, there will be no provision enabling aperson to request written reasons. These subitemsfill thisgap by ensuring the old law continues to apply so that a person mayrequest written reasons for a decision made by the AAT before thetransition time.
Notice of decision and statement ofreasons
1527. To avoid doubt, subitem22(3) clarifies that section111of the new Act does not apply in relation to a decision made by theAAT. Section111 requires the Tribunal to give a person anotice of decision and statement of reasons in relation to adecision by the Tribunal. That provision will not operate to imposea new, additional requirement for the Tribunal to give reasons fordecisions made by the AAT before the transition time.
Guidance and appeals panel
1528. Subitem22(4) provides that, to avoid doubt, Part5 ofthe new Act, which deals with the guidance and appeals panel, doesnot apply in relation to a decision made by the Tribunal. This hasthe effect that decisions made by the AAT before the transitiontime cannot be referred to the guidance and appeals panel.
Item 23: Applications to courts
1529. This itemensures that a party does not lose their right toappeal or make an application to a court in relation to a decisionin a proceeding of the AAT. This itemis intended to cover anyappeal rights conferred under legislation, as well as rights tomake applications for judicial review, in relation to a decisionmade in a proceeding of the AAT.
1530. This itemhas the effect that if, immediately before thetransition time, a party to aproceeding before the AAT wasentitled to appeal or make an application to a court in relation toa decision in the proceeding, the party may make the appeal orapplication after the transition time. The time limit for makingthe application under the old law continues to apply. However, theapplication must otherwise be made in accordance with the new law,as if the decision had been made by the Tribunal.
1531. The court will deal with the party’s application inaccordance with the new law. Subitem23(3) provides that, forthe purposes of the appeal, anything the court could have done inrelation to the AAT before the transition time may be done inrelation to the Tribunal.
PART5—PROCEEDINGS IN PROGRESS
1532. This Partdeals with transitional arrangements for proceedingsin progress in the AAT or a court immediately before the transitiontime.
Item 24: AAT proceedings
1533. This itemensures that proceedings of the AAT that have notbeen finalised before the transition time are automaticallytransferred to the Tribunal.
Continuing proceedings in the ART
1534. Subitems24(1) and (2) provide that if a proceeding in the AATis not finalised (however described) before the transition time,the proceeding must be continued and finalised by the Tribunal. Forthe purpose of continuing and finalising the proceeding, theTribunal will have access to all records and documents in relationto the proceeding that were transferred from the AAT to theTribunal in accordance with item7.
1535. Subitems24(2), (3), (4) and (5) set out the manner in whichthe Tribunal must continue and finalise the proceeding. Thestarting point is that the Tribunal must, as far as possible,continue the proceeding under the new law. This ensures that theTribunal is not required to apply different versions of the lawdepending on whether a proceeding was transferred from the AAT tothe Tribunal, or commenced in the Tribunal after the transitiontime.
1536. This itemis subject to a requirement that the Tribunal mustcontinue and finalise the proceeding in a manner that the Tribunalconsiders is fair and efficient. In doing so, the Tribunal musthave regard to the impact of the transition-thatis, the repeal of the old Act, the enactment of the new Act, andthe effect (including the operation) of the AdministrativeReview Tribunal (Consequential and Transitional Provisions No. 1)Act 2024 -on the parties to theproceeding.
1537. This itemensures that the Tribunal will have flexibility inits approach to continuing and finalising transferred proceedings.The Tribunal can ensure that the transition takes place asefficiently and fairly as possible, and that it can managetransferred proceedings in a way that that minimises potentialdisruption or disadvantage to the parties.
Effect of things done before the transitiontime
1538. Subitem24(6), (7) and (8) deal with the effect of things donebefore the transition time.
1539. Subitem24(6) provides that anything done in, or in relationto, the proceeding before the transition time continues to haveeffect for the purposes of, or in relation to, the proceeding (asthe case requires) after the transition time. This is intended toensure that the Tribunal, in continuing and finalising aproceeding, can have regard to the fact of things having occurredin the proceeding before the transition time. For example, it wouldenable the Tribunal, in considering whether to dismiss anapplication because an applicant failed to attend a hearing, totake into account the applicant’s failure to attend a hearingin the proceeding before the transition time.
1540. Subitem24(7) deals with the legal effect of things thathappened in the proceeding before the transition time. It providesthat anything done in, or in relation to, the proceeding before thetransition time that was valid under, or done in accordance with,the old law is taken to be valid under, or to have been done inaccordance with, the new law for the purposes of the proceedingafter the transition time. The intention is that things that werevalidly done in the proceeding before the transition time continueto be legally effective, as if they had been done under or inaccordance with the new law, and do not need to be done again.
1541. Subitem24(7) applies to things done by the AAT and byparties. For example:
· if the AAT validly made a direction under the old law (such asdirecting a matter to dispute resolution), the direction continuesto have effect, and the Tribunal does not need to make a newdirection for the same purpose
· if a person met a requirement under the old law (for example, arequirement to lodge documents with the AAT), the person is takento have met that requirement for the purposes of the new law, andwill not be required to meet the equivalent requirement again afterthe transition time.
1542. Subitem24(8) provides that anything done in, or in relationto, the proceeding before the transition time by the AAT is taken,after that time, to have been done by the Tribunal.
Item 25: Court proceedings
1543. This itemdeals with proceedings in a court that are notfinalised before the transition time and that relate to a decisionmade, or other thing done, by the AAT. After the transition time,the proceeding will continue in accordance with the new law. Thisitemmakes it clear that, in continuing the proceedings,anything the court could have done in relation to the AAT beforethe transition time may be done in relation to the Tribunal. Forexample, if the court could have made an order remitting a case tobe heard and decided again by the AAT (under subsection44(4)of the AATAct), the court may make an order remitting thecase to the Tribunal after the transition time.
PART6—OTHER THINGS DONE BY, OR IN RELATION TO, THEAAT
Item 26: General rule
1544. This itemprovides that the new law applies in relation to athing done by, or in relation to, the AAT as if the thing had beendone by, or in relation to, the Tribunal. This is subject to otheritemsof this Schedule.
1545. This means, for example, the Tribunal can exercise powers under thenew Act in relation to things that had been done by the AAT, orproceedings that had been finalised by the AAT, before thetransition time. For instance, this itemwould have the effectthat the Tribunal could correct an obvious error in a decision orwritten reasons issued by the AAT.
1546. Provisions in other legislation that refer to things being done bythe Tribunal will also be capable of applying to things that hadbeen done by the AAT before the transition time. For instance, theitem will ensure that section 123 of the A New Tax System (Family Assistance) (Administration)Act 1999 , which refers to the Tribunal having reviewed adecision, will also apply in relation to a review by the AAT.
Item 27: Protection of information and documents
1547. This itempreserves the operation of requirements under theold law in relation to the disclosure, publication or otherprotection of information or documents given to the AAT before thetransition time.
1548. This itemapplies if information or a document was given tothe AAT, and the AAT gave a direction, made an order or did anyother things to prohibit disclosure or publication of theinformation or document, or if the old law otherwise provided forthe protection of the information or document (including byprohibiting disclosure or publication). The effect of thisitemis that the old law continues to apply in relation to thedisclosure, publication or other protection of the information ordocument. This includes offences under the old law.
1549. For example, section81 of the ASIO Act provides that it is anoffence for a person who is or has been a member or officer of theAAT to make a record of, divulge or communicate any informationacquired by that person in their role as a member or officer of theAAT. Item 27 will have the effect that, if the prohibition insection81 of the ASIO Act applied to a person before thetransition time, it will continue to apply to people who weremembers or officers of the AAT, notwithstanding subsequentamendments to that provision (such as amendments to replace thereference to the AAT with references to the Tribunal).
PART7—MEMBERS OF THE TRIBUNAL AND CHIEF EXECUTIVEOFFICER AND PRINCIPAL REGISTRAR
1550. This Partdeals with transitional arrangements relating to thePresident, Deputy Presidents who are judges, and certain othermembers of the AAT.
Item 28: President of the Tribunal
1552. The person will serve as the President of the Tribunal for theremainder of the term for which the person was appointed asPresident of the AAT.
1553. This arrangement is consistent with the intention announced by theGovernment when commencing the merit-based and transparentrecruitment process for the President of the AAT in February2023.
Item 29: Deputy Presidents who are judges
1554. This itemprovides that a judge who was also a DeputyPresident of the AAT immediately before the commencement of theTribunal will become a Judicial Deputy President of theTribunal.
1555. The judge will serve as aJudicial Deputy President of theTribunal for the remainder of the term for which the judge wasappointed as a Deputy President of the AAT.
Item 30: AAT members—certain appointments on or after1January 2023
1556. The ARTBill sets out the processes by which appointments ofnon-Judicial Deputy Presidents, salaried members and sessionalmembers of the Tribunal will be made. This itemprovides forcertain members of AAT to automatically become members of theTribunal at the transition time. In particular, members of the AATwho were appointed on or after 1January2023 inaccordance with the government’s ‘Guidelines forappointments to the Administrative Appeals Tribunal’ willbecome members of the Tribunal for the remainder of their term ofappointment.
1557. This approach reflects the fact that members who have beenappointed in accordance with the ‘Guidelines for appointmentsto the Administrative Appeals Tribunal’ (which was publishedin December2022 and is available on the website of theAttorney-General’s Department) will have been appointedvia a transparent and merit-based process of the kindrequired for the appointment of members to the Tribunal under theARTBill. This is because key features of the‘Guidelines for appointments to the Administrative AppealsTribunal’ include that:
· expressions of interest are to be sought through publicadvertisem*nt
· the selection of non-judicial members is to be made against a coreset of selection criteria, supplemented by additional criteria asrequired, and an assessment panel is to assess applicants’claims against the selection criteria, and
· a panel report endorsed by the chair of the assessment panel is tobe provided to the Attorney-General setting out candidates foundsuitable for appointment, and the Attorney-General will use thepanel report to recommend appointments.
Transfer to the ART
1558. This itemapplies if a person was a member of the AATimmediately before the transition time, the person is not coveredby a previous provision of Part7 (that is, the person is notthe President of the AAT or a Deputy President of the AAT who isajudge), and the person was appointed as a member of the AATon or after 1January2023 and as a result of a selectionprocess conducted in accordance with the ‘Guidelines forappointments to the Administrative Appeals Tribunal’.Subitem30(2) provides that the person becomes a member of theTribunal in an equivalent role. In particular:
· if the person was a Deputy President but not a judge, the personbecomes aNon-Judicial Deputy President of theTribunal
· if the person was a senior member (level1 or2), theperson becomes a senior member of the Tribunal, and
· if the person was a member (level1, 2 or3), the personbecomes a general member of the Tribunal.
1559. Subitem30(3) provides that if the person was a full-timemember of the AAT, the person becomes a salaried member of theTribunal. A salaried member is most equivalent to a full-time AATmember, in that the person is paid an annual salary.Subitem30(4) provides that if the person was a part-timemember of the AAT, the person becomes asessional member ofthe Tribunal. A sessional member is most equivalent to a part-timeAAT member, in that the person is paid a daily rate.
1560. Subitem30(5) provides that the person is taken to beappointed to the Tribunal for the remainder of the term for whichthe person was appointed as a member of the AAT. For example, if aperson was appointed as a member of the AAT for a term expiring on31July2025, the person’s term as a member of theTribunal will expire on that date.
Terms and conditions
1561. Subitem30(6) deals with the terms and conditions for memberswho transfer to the Tribunal. It provides that, for the remainderof the person’s term, the terms and conditions (includingremuneration) of the person’s appointment to the Tribunalmust be equal to, or better than, the terms and conditions thatapplied to the person as a member of the AAT immediately before thetransition time. The note under subitem30(6) clarifies thatthe person’s remuneration will not be better thantheir remuneration as a member of the AAT unless a higher level ofremuneration is determined by the Remuneration Tribunal. Theintention of this subitemis that an AAT member who istransferred to become a Tribunal member under subitem30(2)will not have their remuneration lowered as a result of theirtransfer to the Tribunal.
Reappointments
1562. Subitem30(7) provides a transitional rule for reappointmentsof senior members and members transferred to the Tribunal underthis item. It ensures that any reappointments for this cohort wouldfollow the same reappointment process as set out insubclauses207(7), (8) and (9), and subclauses 208(8), (9) and(10), of the ARTBill.
Leave entitlements
1563. Subitem30(8) provides that, to avoid doubt, any leaveentitlements the person had accrued immediately before thetransition time as a member of the AAT continue in effect for theperson as a member of the Tribunal. This provides appropriatecontinuity for those entitlements.
Item 31: AAT members appointed as ART members
1564. This itemdeals with the scenario in which a person is afull-time member of the AAT immediately before the transition time,the person is not automatically transferred to the Tribunal as aresult of items28 to 30, but the person successfully appliesfor appointment to the Tribunal and commences as a member of theTribunal at, or immediately after, the transition time. Thisitemsets out arrangements relating to the person’sremuneration and leave entitlements when they commence theirappointment as a member of the Tribunal.
Remuneration
1565. Subitem31(2) sets out what happens to the person’sremuneration once they commence their appointment as a member ofthe Tribunal.
1566. The effect of subitem31(2) is that if, at the transitiontime, there would have been time remaining on the term of theperson’s appointment to the AAT, the person’sremuneration as a member of the Tribunal cannot, for a certainperiod, be lower than the amount they would have received as amember of the AAT. In particular:
· if there were fourmonths or more remaining on the term of theperson’s appointment to the AAT-theperson’s remuneration for the first fourmonths of theperson’s appointment as a member of the Tribunal must not beless than the amount of remuneration the person would have receivedif the person had continued as a member of the AAT for thosefourmonths, or
· if there was less than fourmonths remaining on the term ofthe person’s appointment to the AAT-theperson’s remuneration for the period of that remaining termafter the transition time as a member of the Tribunal must not beless than the amount of remuneration the person would have receiveda member of the AAT for that period.
1567. The amount referred to in subitem31(2) is to be calculated byreference to the person’s remuneration immediately before thetransition time. Subitem31(2) does not prevent a personreceiving a higher amount of remuneration if the person isappointed to a Tribunal role to which a higher amount ofremuneration applies.
1568. This requirement is illustrated by the following examples:
· A person is a member of the AAT immediately before the transitiontime. At the transition time, the person commences an appointmentas a member of the Tribunal. At the transition time, there weresixmonths remaining on their term of appointment to the AAT.The effect of subitem31(2)(a) is that, for the firstfourmonths of their term as a member of the Tribunal, theirremuneration cannot be lower than the amount they would have earnedas a member of the AAT for those fourmonths.
· A person is a member of the AAT immediately before the transitiontime. At the transition time, the person commences as a member ofthe Tribunal. At the transition time, there were twomonthsremaining on their term of appointment to the AAT. The effect ofsubitem31(2)(b) is that, for the first twomonths oftheir term as amember of the Tribunal, their remunerationcannot be lower than the amount they would have earned as a memberof the AAT for those twomonths.
· A person is a member of the AAT but their term of appointment endsimmediately before the transition time. At the transition time, theperson becomes a member of the Tribunal. Because there was no timeremaining on the person’s term as a member of the AAT, theperson is not covered by subitem31(2). From the commencementof their appointment to the Tribunal, the person is remunerated inaccordance with the Remuneration Tribunal determination for membersof the Tribunal.
1569. Subitem31(2) applies regardless of the Tribunal role to whichthe person is appointed. For example, if a person who is a DeputyPresident of the AAT immediately before the transition time (andhas 12 months remaining on their term of appointment) is appointedas a senior member of the Tribunal, subitem31(2)(a) operatesto ensure that, for the first fourmonths of theperson’s term as a senior member of the Tribunal, theperson’s remuneration is not less than the amount they wouldhave received as aDeputy President of the AAT for thosefourmonths.
1570. The purpose of these arrangements is to ensure that relevantmembers of the AAT are not financially disadvantaged by acceptingan appointment to the Tribunal, compared to relevant members of theAAT who are not appointed to the Tribunal and to whom item32applies.
1571. These arrangements are in substitution of any compensation thatwould otherwise be payable to the person as a result of them losingtheir office as an AAT member. Subitem31(3) makes it clearthat that no other compensation is payable by the Commonwealth inrelation to the person’s appointment as a member of the AAT.To avoid doubt, subitem31(8) clarifies that the Remuneration Tribunal (Compensation for Loss of Office forHolders of Certain Public Offices) Determination 2018 does notapply in relation to the person’s appointment as a member ofthe AAT. This means that the person would not be entitled to anycompensation other than that provided for insubitem31(2).
Leave entitlements
1572. Subitems31(4), (5), (6) and (7) set out what happens to theperson’s leave entitlements once they commence theirappointment to the Tribunal.
1573. The default position is that any leave entitlements that the personhad accrued immediately before the transition time as a member ofthe AAT continue in effect for the person as a member of theTribunal. This is despite subsection30(3) of the Remuneration Tribunal (Judicial and RelatedOffices—Remuneration and Allowances) Determination (No. 2)2023 , which would otherwise operate to entitle the person to bepaid the balance of their recreation leave on leaving their officeas amember of the AAT.
1574. This default position is subject to an exception insubitem31(6). The exception is that the person may insteadelect to have any leave entitlements the person had accruedimmediately before the transition time as a member of the AAT paidout, in accordance with subsection30(3) of the Remuneration Tribunal (Judicial and RelatedOffices—Remuneration and Allowances) Determination (No. 2)2023 . Subitem31(7) provides that, if a person wishes tomake an election under 31(6), the election must be in writing,signed by the person, and given to the Registrar of the AAT nolater than 21 days before the transition time. This time limit willensure the AAT is given sufficient notice to arrange for leaveentitlements to be paid out. Clause 2 of the Consequential Billprovides that item31 will commence on the day after theConsequential Bill receives the Royal Assent. This means that thesubitemwill be in force at the time when a person is requiredto make the election.
1575. These arrangements apply regardless of the amount of time thatwould have remained on the person’s appointment as a memberof the AAT.
1576. These arrangements ensure that members of the AAT who are appointedto the Tribunal can determine what happens to their leaveentitlements depending on their personal preference andcirc*mstances.
Item 32: AAT members not appointed as ART members
1577. This itemdeals with a scenario in which a person is afull-time member of the Tribunal immediately before the transitiontime and whose term of appointment to the AAT would have continuedpast the transition time, but the person is not automaticallytransferred to the Tribunal under items28 to 30, and is notappointed to the Tribunal for aterm commencing at, orimmediately after, the transition time.
1578. The effect of this itemis that the person will be entitled tocompensation. Subitem32(2) identifies the amount ofcompensation that a person is entitled to. The amount depends onhow much time was remaining on the person’s term as a memberof the AAT at the transition time. In particular:
· if, at the transition time, the remainder of the term for which theperson was appointed as a member of the AAT is fourmonths ormore, the Commonwealth must pay the person an amount equal tofourmonths remuneration, or
· if, at the transition time, the remainder of the term for which theperson was appointed as a member of the AAT is less thanfourmonths, the Commonwealth must pay the person the amountthe person would have received as remuneration for the remainder ofthat term.
1579. In each scenario, the amount payable by the Commonwealth is to becalculated by reference to the person’s remunerationimmediately before the transition time.
1580. This arrangement ensures that compensation payments are fair andreasonable but not excessive. It is in substitution of anycompensation that would otherwise be payable to the person as aresult of them losing their office as an AAT member.Subitem32(3) makes it clear that that no other compensationis payable by the Commonwealth in relation to the person’sappointment as a member of the AAT. To avoid doubt,subitem32(4)(a) clarifies that Remuneration Tribunal(Compensation for Loss of Office for Holders of Certain PublicOffices) Determination 2018 does not apply in relation to theperson’s appointment as a member of the AAT. This means thatthe person would not be entitled to any compensation other thanthat provided for under subitem32(2).
1581. Separate to compensation, it is intended that the person would bepaid the balance of their recreation leave on leaving their officeas a member of the AAT, in accordance with the RemunerationTribunal (Judicial and Related Offices—Remuneration andAllowances) Determination (No. 2) 2023 . This does not require atransitional provision.
Item 33: Compensation
1582. This itemhas the effect that this Partis to be readconsistently with paragraph 51(xxxi) of the Constitution. Itprovides that if (apartfrom this item) the operation of thisPartwould result in the acquisition of property from a personotherwise than on just terms, and the acquisition would be invalidbecause of paragraph 51(xxxi) of the Constitution, the Commonwealthis liable to pay a reasonable amount of compensation to theperson.
1583. Subitem33(2) provides that, if the Commonwealth and theperson do not agree on the amount of the compensation, the personmay institute proceedings in the FCA or the Supreme Court of aState or Territory for the recovery from the Commonwealth of suchreasonable amount of compensation as the court determines.
1584. Subitem33(3) clarifies that, in this item:
· acquisition of property has the same meaning as inparagraph 51(xxxi) of the Constitution.
· just terms has the same meaning as in paragraph51(xxxi) of the Constitution.
Item 33A: Appointments to commence at or shortly after thetransition time
1585. This item clarifies arrangements for appointments to the Tribunalwhich may be made ahead of, and for a short period after, thecommencement of the ARTBill.
Requirement to consult with the President ofthe ART
1586. Item 28 of Schedule16 provides that the person who isPresident of the AAT immediately before the ARTBill commenceswill become the President of the Tribunal upon that Bill’scommencement. This means that the position of ‘President ofthe ART’ will only come into existence at the commencementtime - notwithstanding that the individual filling the roleis the same. This technicality means that, without clarification,any consultation with the position of ‘President of theART’ could not occur until after the ARTBill commences,causing delays and preventing proper preparations for the newTribunal to start operations.
1587. Subitems33A(1)-(3) clarify how consultation requirementsrelating to appointments under the ARTBill may be met priorto the commencement of the ARTBill. Under section4 ofthe Acts Interpretation Act, powers (including powers to makeappointments) conferred under a new Act may be exercised from thetime the Act is enacted. Given the number of appointments that willbe required to establish the Tribunal, some appointments to theTribunal will be made in reliance on section4 of the ActsInterpretation Act to support a smooth transition period, ensuremembers are in place to hear matters from the commencement of theTribunal and provide certainty to candidates as to theirappointment status.
1588. Under clauses206, 207 or 208 of the ARTBill, theMinister must consult with the President of the Tribunal beforerecommending candidates for appointment as Judicial DeputyPresidents, Non-Judicial Deputy Presidents, Senior Members andGeneral Members. Subitem33A(2) provides that theARTBill consultation requirements do not apply toappointments made before the ARTBill commences. Insteadsubitem33A(3) provides that the Minister must consult thePresident of the AAT in relation to appointments.
1589. Subitems 33A(6)-(8) make equivalent amendments in relation to therequirements to consult with the President of the Tribunal prior toappointing the Principal Registrar of the Tribunal.
1590. These provisions ensure there is no risk of technicalnon-compliance with the consultation requirements merelybecause the office of President of the Tribunal has not yet beenestablished. Because the President of the AAT and the President ofthe Tribunal will be the same person, the substantive effect of theconsultation requirements remains the same. The provisions cease tohave effect once the ARTBill commences.
Merit-based assessment processes conductedprior to the ART Bill’s commencement - ART members
1591. Subitem 33A(4) clarifies that the Minister may be satisfied that aperson has been assessed as suitable for appointment as aNon-Judicial Deputy President, Senior Member or General Member ofthe Tribunal where the person has been assessed as suitable forappointment through a process that was conducted in accordance withthe Guidelines for appointments to the Administrative AppealsTribunal (the Guidelines), and where the process commenced on orafter 1 July 2023.
1592. The is necessary because clauses207 and208 of theARTBill require assessment processes to be conducted by apanel established under clause209. As clause209 of theARTBill will commence with the rest of that Bill,transitional arrangements are necessary to allow appointments tothe Tribunal to be made with certainty. Otherwise, there is a riskof technical non-compliance as it will not be possible forpanels established under clause209 to conduct the assessmentprior to the commencement of that provision.
1593. This subitem ensures that candidates are available for appointmentto the Tribunal on commencement and for the first 6 months ofoperation, noting the significant time required to conduct amerit-based assessment process, particularly for the number andbreadth of roles required in the Tribunal. The process in theGuidelines is merit-based and includes:
· public advertising of positions (paragraph 3 of the Guidelines)and
· an assessment conducted by an assessment panel (paragraphs 4, 6-9)of candidate’s suitability for the appointment against coreselection criteria.
1594. The subitem also provides that the Minister may only recommendcandidates who have been assessed as suitable for appointmentthrough this process - consistent with the ARTBill.Candidates who are not assessed as suitable are not eligible to beappointed.
1595. Subitem33A(5) provides that appointments in accordance withsubclause(4) may only occur for the first 6 months of theTribunal's operations. This strikes an appropriate balance betweenensuring that the merit pools developed in accordance with theGuidelines remain valid (reducing administrative burden forapplicants who have completed these assessment processes recentlyand enabling a smooth commencement of the new Tribunal with itsfoundation membership) and ensuring that the appointmentarrangements under the ARTBill are in full effect within areasonable timeframe from commencement.
Merit-based assessment processes conductedprior to the ART Bill’s commencement -PrincipalRegistrar
1596. Subitem33A(9) clarifies that the Minister may be satisfiedthat a person has been assessed as suitable for appointment as thePrincipal Registrar of the Tribunal where the person was assessedby a panel as suitable through a selection process that wasmerit-based and included public advertising of the position.This is necessary because clause227 of the ARTBill willrequire the assessment processes to be conducted by a panelestablished under clause209. As clause 209 of the ART Billwill commence with the rest of that Bill, transitional arrangementsare necessary to allow appointments to the Tribunal to be made withcertainty. Otherwise, there is a risk of technical non-complianceas it will not be possible for panels established underclause209 to conduct the assessment prior to the commencementof that provision.. It is essential that the Principal Registrar isin place from the commencement of the Tribunal.
1597. Subitem33A(9) displaces clause227(2)(b) of the ARTBill, and substitutes an equivalent - by requiring that theassessment process is conducted by ‘a panel of persons’in a process commencing after 1 February 2024. This does not changethe substance of the assessment process - the assessmentprocess must still include an assessment panel, just not oneestablished under clause 209 which will not yet have commenced. Theamendment also preserves requirements that the process bemerit-based and include public advertising of theposition.
1598. Subitem33A(10) provides that the amendments undersubclause33A(9) are only valid for one month followingcommencement of the ARTBill. This shorter period isappropriate in respect of the Principal Registrar as there willonly be one person appointed to that position, so there is no needto preserve the interim arrangements beyond the immediatecommencement date of the Tribunal.
PART8—MATTERS SPECIFIC TOPARTICULAR ACTS
Division1—Migration
1599. The IAA was established under Part7AA of theMigrationAct to provide a limited form of review of certaindecisions(fast track decisions) to refuse to grant protectionvisas to some applicants, including some unauthorised maritimearrivals. Following the 2015 amalgamation of the Commonwealthmerits review tribunals, the IAA sits within the Migration andRefugee Divisionof the AAT.
1600. Schedule2 of the Consequential Bill repeals Part7AA ofthe MigrationAct, which sets out the fast track reviewarrangements and the IAA. All matters that would have been referredor remitted to the IAA will instead progress on the same pathway asother reviewable protection decisions to the Tribunal. Any personwho is, or would be, eligible for review at the IAA from thetransition time, would instead be eligible for Tribunal review.
1601. Items 35, 36 and 37 set out the rules for certain properly madeapplications for protection visas and reviews by the IAA that areon foot at the transition time, and ensure that court remittals ofparticular protection visa refusal decisions after the transitiontime are transferred/referred to the Tribunal as appropriate,without disruption.
1602. Items 38 to 42 clarify the broader transitional relationship withmigration matters.
Item 34: Definitions
1603. This itemdefines several terms for the purpose of theMigrationAct transitional provisions:
· IAA is defined as the Immigration AssessmentAuthority.
· Minister is defined as the Minister administering the MigrationAct 1958 .
Item 35: Part7AA fast track review—decision onprotection visa application not made before transition time
Fasttrack review - terminology
1604. The fast track legislative framework introduced a number of termsand definitions into sections 5 and 473BB of theMigrationAct, which are repealed by Schedule2 of theConsequential Bill.
1605. A fast track applicant is, broadly speaking, a person who arrivesin Australia unauthorised and as a result becomes an unlawfulnon-citizen who has applied for a protection visa (a Subclass 785[Temporary Protection] visa [TPV] or a Subclass 790 [Safe HavenEnterprise] visa [SHEV]), as well as certain children born inAustralia to those persons. Fast track decisions are decisions(subject to some exceptions) to refuse to grant protection visas tofast track applicants. Some specified fast track applicants areknown as excluded fast track review applicants; all others areknown as fast track review applicants.
Fasttrack review - protection visa decision after the transitiontime
1606. Currently, fast track reviewable decisions must be referred by theMinister to the IAA as soon as reasonably practicable after adecision is made. A fast track review applicant cannot make anapplication for review.
1607. This itemapplies to fast track applicants who have notreceived a decision on their protection visa application by thetransition time. The relevant visa types are the TPV and theSHEV.
1608. When a decision is made after the transition time to refuse aprotection visa to an applicant (being a former fast trackapplicant), this itemimposes an obligation on the Minister torefer the decision to the Tribunal as soon as reasonablypracticable.
1609. The referral obligation aligns with current exclusions. That is,the Minister is not to refer to the Tribunal decisions to refuse aprotection visa to a fast track applicant based on the followingprovisions of the MigrationAct:
· section501-character grounds
· subsection5H(2)-Article1F typecrimes
· subsection36(1B) and (1C)-adverse ASIOassessment/threat to security, or
· paragraphs 36(2C)(a) or (b)-Article1F or 33type crimes.
1610. A referral by the Minister is taken to be a properly madeapplication to the Tribunal for review of reviewable protectiondecision. The referral does not need to meet the applicationrequirements in the new Part5 of the MigrationAct. Thisitemprovides consistency in the pathway to Tribunal reviewfor people that applied for a TPV or SHEV as a fast track applicantbefore the transition time, where decisions to refuse a protectionvisa were referred to the IAA by the Minister automatically.
Item 36: Part7AA fast track review—decision notmade by IAA before transition time
Continuation in ART of matters before theIAA
1611. This itemprovides for the transition of fast track reviewabledecisions that are unresolved in the discontinued IAA by thetransition time, to the Tribunal.
1612. Generally speaking, the IAA is required to review a fast trackreviewable decision based upon the review material provided to itby the Secretary at the time the decision was referred, and onlyconsider new information in exceptional circ*mstances.
1613. As the Tribunal is not bound by this restriction and may considerany document or information that it considers relevant, thisitemcould impact on efficiencies and resources of theTribunal. However, this outcome is considered reasonable given theremaining caseload is relatively small.
1614. This itemestablishes fair access to merits review withoutdisadvantage or inconvenience to fast track review applicants, andaligns with the principles of the Tribunal and objective of thisreform.
Item 37: Part7AA fast track review—excluded fasttrack review applicants
Fasttrack review - protection visa decision after the transitiontime
1615. ‘Excludedfasttrackreview applicants’are fast track applicants who have:
· come from ‘safe third countries’ or have‘effective protection’ in another country (as definedin section91C of the MigrationAct)
· previously entered Australia and made a protection visa applicationwhich was refused or withdrawn
· made an unsuccessful claim for protection in another country
· made an unsuccessful claim for protection to the UN HighCommissioner for Refugees (UNHCR)
· provided ‘without reasonable explanation’ a‘bogus document’ in support of the application (asdefined in subsection5(1) of the MigrationAct), or
· made, in the opinion of the Minister, a ‘manifestlyunfounded’ claim.
1616. The Minister can also expand the grounds on which someone may bedesignated an ‘excluded fast track applicant’ through alegislative instrument.
1617. This itemapplies where:
· before transition time - a person was an excluded fast trackreview applicant and a decision had been made to refuse to grant aprotection visa to the person (other than on the grounds mentionedin item 35 above), and
· after transition time - a court remits the decision to refusethe person a protection visa to the Minister, and a decision hasbeen made to refuse to grant a protection visa to the person (otherthan on the grounds mentioned in item 35 above).
1618. For consistency, this itemdoes not apply where the protectionvisa was refused because the Minister or delegate is not satisfiedthe person passes the character test under section501 of theMigrationAct, or the protection visa was refused undersubsections 5H(2), 36(1B) or (1C), or paragraphs 36(2C)(a) or (b)of that Act.
1619. This itemimposes an obligation on the Minister to refer thesubsequent decision to refuse to grant the protection visa (otherthan on the grounds mentioned in item 35 above) to the Tribunal assoon as reasonably practicable.
1620. This itemconfers jurisdiction on the Tribunal for a cohortwho does not currently have access to merits review. While this mayhave an impact on the Tribunal’s resources, this outcome isconsidered reasonable given this is a time-limited caseload.
Item 38: Minister may substitute a more favourabledecision
1621. Existing section351 of the MigrationAct provides thatthe Minister may substitute an AAT decision on review of aPart5 reviewable decision or a Part7 reviewabledecision, if the Minister considers it is in the public interest todo so.
1622. New section351 only applies to decisions made by the Tribunalafter the transition time. This itemallows the Minister,after the transition time, to substitute a more favourable decisionfor an AAT decision made before the transition time under existingsections 349 or 415 of the MigrationAct.
Item 39: Date of migration decision
1623. Sections477, 477A and 486A of the MigrationAct set outtime limits for applications to be made to the FCFCOA(Division2), the FCA and the High Court respectively, for aremedy to be granted in the court’s original jurisdiction inrelation to a migration decision. An application is to be madewithin 35 days of the date of the migration decision.
1624. This itemprovides that if a particular date is taken to bethe date of the migration decision prior to the transition timeunder the existing definition of date of a migration decision insubsection477(3) of the MigrationAct, that date willcontinue to be taken to be the date of the migration decision afterthe transition time.
1625. The purpose of this itemis to ensure that the date a decisionis taken to have been made (including by the discontinued IAA)would continue to apply, so that the time limits on applicationsfor judicial review are not affected by the amendments inSchedule2 of the Consequential Bill.
Item 40: Section 486D of the MigrationAct1958
1626. Section 486D of the MigrationAct provides that a person mustnot commence proceedings for judicial review of a ‘tribunaldecision’ in the High Court, FCA or FCFCOA (Division2)unless that person has disclosed any other judicial reviewproceedings in relation to that tribunal decision. If there has notbeen compliance with section486D, an application filed in thecourt may be deemed incompetent.
1627. The term ‘tribunal decision’ is defined for thepurposes of section486D in subsection486D(5) of theMigrationAct. This itempreserves this definition sothat section486D continues to apply on or after thetransition time to a privative clause decision, or purportedprivative clause decision, made on review before the transitiontime by the AAT under Part5 or 7 or section500 or bythe IAA under Part7AA.
1628. The purpose of this itemis to confirm that the amendments inSchedule2 of the Consequential Bill do not alter thecharacter of decisions that have already been made, and to ensurethat the litigation-related provisions in Parts 8, 8A and 8B of theMigrationAct that apply to those types of decisions continueto apply.
Item 41: Delegation
1629. Section 496 of the MigrationAct empowers the Minister todelegate any of their Ministerial powers under that Act. Thedelegate is, in the exercise of a power delegated, subject to thedirections of the Minister.
1630. This itemallows the Ministerial powers and functions underthis Scheduleto be delegated.
Item 42: Applications that are finally determined
1631. ‘Finally determined’ is defined in theMigrationAct to ensure certainty on when the Tribunal becomesfunctus officio, and thereby has no power to vary or revoke adecision. This is essential for the proper administration of theMigrationAct. This itemprovides that Schedule2 ofthe Consequential Bill (which includes an amendment to thedefinition of ‘finally determined’ to reflect updatedterminology) does not apply to an application that was finallydetermined before the transition time.
1632. The effect of this itemis to confirm, for the avoidance ofdoubt, that no further merits review rights are available to aperson under the Consequential Bill, if their migration orprotection matter has been ‘finally determined’ priorto the commencement of the Tribunal.
1633. This itemensures that visa applications which have beenfinally determined before the transition time remain finallydetermined. Any person already assessed by the AAT or IAA would nothave their cases ‘re-enlivened’ under the Tribunal.Similarly, any excluded fast track review applicant who has hadtheir application refused and has exhausted all avenues of judicialreview before the Tribunal commences would not attain new meritsreview rights.
Division2—Social services
General outline
1634. This Bill makes amendments to social security legislation toprovide for parties to reviews of social services decisions thatare underway or recently completed at the time of transition toaccess second review of those decisions, pending the transition toguidance and appeals panel review of those decisions.
1635. These transitional arrangements seek to preserve appeal rights forall social security and child support applicants that existed priorto the date of commencement of the Tribunal. To achieve theseobjectives, applicants with transitional rights as described belowwill be able to able to access second review in the Generaljurisdictional area of the Tribunal. Allowing applicants withtransitional rights to undergo a second review at the Generaljurisdictional area preserves their right to second review withoutrequiring discretion from the Tribunal President to refer a matterfor further review at the guidance and appeals panel.
Item 43: Definitions
1636. This itemdefines key terms used in this Divisiontomean:
· AAT second review has the same meaning as in the oldlaw.
· ART social services decision hasthe meaning given by the new Act.
· second review has the meaninggiven by the new Act.
Item 44: No second review following AAT second review
Right to apply for review - AAT secondreview matters not finalised at transition time
1637. This itemprovides that a person cannot apply for secondreview in the Tribunal if they have applied for AAT second reviewfor the same decision. This ensures that the decision cannot bereviewed a third time, as a consequence of the transition from AATsecond review to second review of social services decisions in theTribunal.
PART9—TRANSITIONAL RULES
Item 51: Transitional rules
1638. This itempermits the Minister, by legislative instrument, tomake rules prescribing further transitional arrangements that arerequired or permitted by the Consequential Bill, or necessary orconvenient for carrying out or giving effect to the ConsequentialBill.
1639. The Minister may make rules prescribing transitional arrangementsthat relate to the provisions of the Administrative ReviewTribunal (Consequential and Transitional Provisions No.1) Act2024 which amend or repeal other legislation, or enactment ofthe new Act. This includes rules to:
· modify provisions of the Administrative Review Tribunal(Consequential and Transitional Provisions No. 1) Act 2024 orthe new Act, or provide for the application (with or withoutmodifications) of provisions of those Acts to matters to which theywould otherwise not apply, and
· modify the operation of the Administrative Review Tribunal(Consequential and Transitional Provisions No. 1) Act 2024 (including in respect of specified matters only).
1640. The rules may be made to have retrospective application.
1641. This rule-making power, including the ability to make retrospectiverules, is necessary to provide the Minister with the discretion andflexibility to deal with matters or circ*mstances that are notcovered in the Consequential Bill. The transitional provisions inthis Schedulewill apply in relation to a very large number ofapplications and proceedings, and it may not be possible toanticipate the full range of circ*mstances which the transitionalprovisions will need to accommodate. The rule-making powerenables the Minister to deal with unintended outcomes, orunforeseen issues, in relation to the transition from the AAT tothe Tribunal which could require immediate or prompt changes. Thisis particularly important to ensure that applications made to theTribunal relating to decisions made before the transition time, andAAT proceedings that are transferred to the Tribunal, can be dealtwith smoothly and with as little disruption to the parties aspossible.
1642. While the rules may be made to have retrospective application,subitem51(5) makes it clear that a person could not beconvicted of an offence or ordered to pay apecuniary penaltyin relation to conduct before the registration date if the conductwould not have contravened an existing Act. This means that therules would not be able to retrospectively criminalise conduct orretrospectively apply a penalty.
1643. In addition, subitem51(6) places limits on the transitionalrules which could be made, and makes it clear that the Ministercould not make rules which:
· create an offence or civil penalty
· provide powers of arrest or detention or powers of entry, search orseizure
· impose a tax
· set an amount to be appropriated from the Consolidated RevenueFund
· directly amend the text of the Administrative Review Tribunal(Consequential and Transitional Provisions No. 1) Act 2024 orthe new Act.
PART 10—CONSULTATION BEFORE TRANSITION TIME
Item 52: Consultation in relation to rules before thetransition time
1644. Clause295 of the ARTBill enables the Minister to makerules (by legislative instrument) about anything the Bill requiresor permits to be prescribed in rules, or about matters that arenecessary or convenient to give effect to the Bill. The proposedamendment to clause295 (to insert a new subclause (6))requires the Minister to consult the President of the Tribunalbefore making rules affecting the practice, procedure or operationsof the Tribunal.
1645. Item 52 clarifies that where the Minister makes rules under theARTBill prior to the commencement of that Bill (as ispermitted by section4 of theActsInterpretationAct), the Minister must consult thePresident of the AAT, instead of the President of the Tribunal.
1646. This item ensures technical compliance with the provision despitethe office of the President of the Tribunal not yet having formallycommenced, and does not substantively alter the consultationrequirements because the President of the AAT immediately beforethe transition time will become the President of the Tribunal viaitem28 of Schedule16.
1647. The item is necessary as a number of rules under the ARTBillwill need to be in place ahead of the commencement of theARTBill, to support the efficient commencement of theTribunal. This transitional provision supports the timely making ofrules ahead of time, which will provide certainty and clarity forTribunal users about the procedures and operations of the Tribunalupon its commencement.
SCHEDULE17—REPEALS
Administrative Appeals Tribunal Act1975
Item 1: The whole of the Act
1648. Item 1 repeals the whole of the AATAct.
