Senate

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)

GLOSSARY

In this Explanatory Memorandum, the following abbreviations are used:

GENERAL OUTLINE

1. The Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2024 (Consequential Bill) forms part of a package of Bills that would abolish the Administrative Appeals Tribunal (AAT) and establish the Administrative Review Tribunal (the Tribunal), a new federal administrative review body that is user-focused, efficient, accessible, independent and fair.

2. The Administrative Review Tribunal Bill 2024 (ART Bill) would establish the Tribunal and set out the operating framework for the Tribunal to significantly improve the experience of those seeking review of government decisions.

3. The Consequential Bill supports the ART Bill by repealing the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), making consequential amendments across 138 Commonwealth Acts and providing transitional rules which facilitate the smooth transition from the AAT to the Tribunal.

4. The Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Bill 2024 contains additional consequential amendments to 110 other Commonwealth Acts that interact with the AAT Act to support the reforms to administrative review.

Consequential Bill

5. The Consequential Bill would amend 138 Commonwealth Acts, covering approximately 93 per cent of the AAT's current caseload. This includes amendments to legislation in key portfolios, such as the Home Affairs, Social Services, Treasury, Veterans' and National Intelligence Community portfolios. In particular, the Consequential Bill:

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Retains a range of existing special rules for Tribunal reviews of taxation and charity matters to, among other things, protect tax revenue collection and uphold longstanding core tax principles and practices.

•

Abolishes the Immigration Assessment Authority and harmonises provisions relating to reviews of migration and refugee decisions (providing a broader suite of tools for the efficient and effective resolution of these matters).

•

Adjusts the exhaustive statement of the natural justice hearing rule for migration and protection matters, so that it continues to codify matters relating to notification, non-disclosable information and requirements on what information must, and must not, be put to an applicant for comment before certain powers are exercised; but provides additional flexibility for the Tribunal to reduce delays and backlogs in migration and refugee matters, increase fairness for genuine applicants, and maintain the integrity of the migration system.

•

Provides a fit-for-purpose style of review of Social Security and Child Support decisions. Matters will be triaged, and resolved according to the complexity of the matter, and whether the participation of the decision-maker will assist its effective and efficient resolution.

•

Makes consequential amendments to social services legislation to support Part 5A of the ART Bill, which provides for second reviews of these decisions, and to ensure that initial reviews of these decisions are informal, accessible, trauma-informed and quick

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Continues existing pathways and protections for the review of matters involving sensitive national security or intelligence information, with enhancements to simplify drafting and promote consistent, effective approaches.

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Maintains merits review in two separate bodies as a unique feature of veterans' entitlement law, with matters reviewed in the Veterans' Review Board (VRB) continuing to be appealable to the Tribunal.

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Promotes consistency and simplicity by repealing special arrangements that overlap, duplicate or unnecessarily displace core provisions of the ART Bill.

Terminology changes and updating cross-references

6. The Consequential Bill would update terminology across the Commonwealth statute book to replace references to the AAT and AAT Act with references to the Administrative Review Tribunal and the Administrative Review Tribunal Act 2024. These amendments would ensure that the Tribunal has the same jurisdiction as the AAT, and that various provisions continue to operate in substantively the same way as the existing law in the AAT.

7. The Consequential Bill would also replace references to provisions of the AAT Act with references to the equivalent, or broadly equivalent provisions under the ART Bill. This includes updating provisions with legislative references to notification requirements under the AAT Act, or other concepts created under the AAT Act (for example, 'officers of the Tribunal' or 'presidential members'). These amendments would ensure that other legal frameworks reflect the terminology, concepts, structure and other policy settings in the ART Bill or are otherwise consistent with the ART Bill. This would ensure that existing laws continue to apply as intended.

Standardising processes

8. A key objective for the reform is to enable procedural efficiencies and process improvements by harmonising processes and procedures across the Tribunal's caseload wherever possible.

9. The ART Bill would implement a set of standard procedures and powers which the Tribunal can use to resolve matters. Those procedures and powers have been designed to be flexible and adaptable to the Tribunal's broad caseload, and should be relied upon by Acts conferring jurisdiction on the Tribunal as far as possible. Where possible, the Consequential Bill would repeal special procedures in other Acts, with the effect that the default provisions in the ART Bill would apply.

10. There are significant benefits to the Tribunal and users in relying on these standard procedures, rather than applying particular arrangements. Users engage with a range of government agencies over their lifetime, and may seek review of several different government decisions in that time. Recognising that the majority of Tribunal users are self-represented, increased similarity and predictability in how matters should proceed would better equip them to have a positive experience of review. For the Tribunal, there would also be significant efficiencies from greater harmonisation than applies in the AAT. It would reduce the complexity of the Tribunal's operating environment, allowing shared technology, forms, staff and member resources.

11. However, there are circumstances where the Tribunal's proposed standard powers and procedures would need to be changed, to respond to the unique features of a particular caseload. In those circumstances, the Consequential Bill would also make the necessary amendments to other Acts to preserve existing arrangements.

Transitional arrangements

12. The Consequential Bill also contains measures to effect the transition from the AAT to the ART. This includes transitioning the Tribunal's active, pending and potential caseloads, including matters before the courts, to minimise disruption and to maintain review rights. The Consequential Bill also contains conditions for certain AAT members (including the President) to transition to the ART, and sets out arrangements for certain members who do not.

FINANCIAL IMPACT

13. The Government will provide $21.8 million over two years from 2023-24 to support the interim financial sustainability of the AAT and ensure a smooth transition to the new Tribunal. A further $30.1 million over five years from 2022-23 has been provided to the AAT for the development of a new case management solution (CMS) for use by the Tribunal.

14. In response to the Royal Commission into the Robodebt Scheme, the Government has committed $5.3 million over four years from 2023-24 (and $1.8 million per year ongoing) to support the re-established Administrative Review Council to monitor and enquire into the Commonwealth administrative review system.

15. The Government is continuing to consider the Tribunal's resourcing needs as part of the reform to Australia's system of administrative review.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2024

16. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Consequential Bill

17. The Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2024 (Consequential Bill) forms part of a package of Bills that would abolish the Administrative Appeals Tribunal (AAT) and establish the Administrative Review Tribunal (Tribunal), a new federal administrative review body that is user-focused, efficient, accessible, independent and fair.

18. The Consequential Bill supports the ART Bill by repealing the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), making consequential amendments across 138 Commonwealth Acts and providing transitional rules which facilitate 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 of taxation and charity matters to, among other things, protect tax revenue collection and uphold longstanding core tax principles and practices.

•

Abolishes the Immigration Assessment Authority (IAA) and harmonises provisions relating to reviews of migration and refugee decisions (providing a broader suite of tools for the efficient and effective resolution of these matters).

•

Adjusts the exhaustive statement of the natural justice hearing rule for migration and protection matters, so that it continues to codify matters relating to notification, non-disclosable information and requirements on what information must, and must not, be put to an applicant for comment before certain powers are exercised; but provides additional flexibility for the Tribunal to reduce delays and backlogs in migration and refugee matters, increase fairness for genuine applicants, and maintain the integrity of the migration system.

•

Provides a fit-for-purpose style of review of Social Security and Child Support decisions. Matters will be triaged and resolved according to the complexity of the matter, and whether the participation of the decision-maker will assist its effective and efficient resolution.

•

Makes consequential amendments to social services legislation to support Part 5A of the ART Bill, which provides for second reviews of these decisions, and to ensure that initial reviews of these decisions are informal, accessible, trauma-informed and quick.

•

Continues existing pathways and protections for the review of matters involving sensitive national security or intelligence information, with enhancements to simplify drafting and promote consistent, effective approaches.

•

Maintains merits review in two separate bodies as a unique feature of veterans' entitlement law, with matters reviewed in the Veterans' Review Board (VRB) continuing to be appealable to the Tribunal.

•

Promotes consistency and simplicity by repealing special arrangements that overlap, duplicate or unnecessarily displace core provisions of the ART Bill.

20. The Consequential Bill would update terminology across the Commonwealth statute book to replace references to the AAT and AAT Act with references to the Administrative Review Tribunal and the Administrative Review Tribunal Act 2024. It would also replace references to provisions of the AAT Act with references to the equivalent, or broadly equivalent, provisions under the ART Bill.

21. The ART Bill would also implement a set of standard procedures and powers which the Tribunal can use to resolve matters. Those procedures and powers have been designed to be flexible and adaptable to the Tribunal's broad caseload, and should be relied upon by Acts conferring jurisdiction on the Tribunal as far as possible. Where possible, the Consequential Bill would repeal special procedures in other Acts, with the effect that the default provisions in the ART Bill would apply.

22. However, where departures from the Tribunal's proposed standard powers are required to respond to the unique features of a particular caseload, the Consequential Bill would also make necessary amendments to achieve that outcome.

Human rights implications – issues common to all Schedules

23. The Consequential Bill would make consequential amendments to support the implementation of the ART Bill. This includes ensuring that the Tribunal retains the jurisdiction of the AAT and that affected persons have access to the review framework established by the ART Bill. As such, the Consequential Bill engages the same rights as those engaged by the ART Bill.

24. The ART Bill engages the following rights:

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the right to an effective remedy in Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR)

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the right to a fair and public hearing in Article 14 of the ICCPR

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the right to equality before the law in Article 26 of the ICCPR

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the right to freedom from arbitrary and unlawful interferences with privacy in Article 17 of the ICCPR

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the right of access to justice for people with disability in Article 13 of the Convention on the Rights of Persons with Disabilities (CRPD)

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the right to a presumption of innocence in Article 14(2) of the ICCPR

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the right to freedom of opinion and expression in Article 19 of the ICCPR (engaged tangentially).

25. The ART Bill and Consequential Bill are both compatible with human rights. The Bills advance the right to an effective remedy, a fair and public hearing, the right of access to justice for persons with a disability and the right to freedom from arbitrary and unlawful interference with privacy. To the extent that the Bills limit any human rights, those limitations are reasonable, necessary and proportionate. For more detail, see the Statement of Compatibility with Human Rights in the Explanatory Memorandum for the ART Bill for further information.

26. In addition, the Schedules of the Consequential Bill engage human rights or freedoms, as set out in detail below.

Human rights implications – Specific schedules

Schedule 1: Treasury

27. This Schedule would make consequential amendments to legislation in the Treasury portfolio, needed as a result of the repeal of the AAT Act and the establishment of the Tribunal. The schedule would amend legislation to retain a range of existing special rules which apply for taxation and charity matters to ensure the workability of Tribunal review for those matters, to protect tax revenue collection, and to uphold longstanding core tax principles and practices. For example, this would include restricting who could apply for review, who could be joined as a party to proceedings and mandating private hearings to protect taxpayer confidentiality and otherwise ensure the workability of proceedings.

28. The Schedule engages the following human rights:

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the right to an effective remedy and the right to a fair hearing in Articles 2(3) and 14 of the ICCPR

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the right to freedom from arbitrary and unlawful interferences with privacy in Article 17 of the ICCPR.

The right to an effective remedy and a fair hearing in Articles 2(3) and 14 of the ICCPR

29. Article 2(3) of the ICCPR provides that States shall undertake to ensure the right to an effective remedy for any violation of rights or freedoms recognised by the ICCPR. It includes the right to have a remedy determined by competent judicial, administrative or legislative authorities. This right also encompasses the duty to ensure component authorities enforce any such remedies when granted.

30. Article 14(1) of the ICCPR protects the right that all persons are equal before courts and tribunals. It further provides that every person, in the determination of 'rights and obligations in a 'suit at law' is entitled to a 'fair and public hearing by a competent, independent and impartial tribunal established by law'. Article 14(1) also recognises that 'the press and public may be excluded from all or part of a trial for reasons of morals, public order (order public) or national security in a democratic society, or when the interest of the private lives of the parties so requires...'.

31. The extent to which Article 14(1) applies to administrative review proceedings (whether such proceedings constitute a 'suit at law') is not fully settled.

Conferring jurisdiction on the Tribunal

32. Schedule 1 promotes the right to an effective remedy by making consequential amendments to provide that decisions may be reviewable by the Tribunal (where they were previously reviewable by the AAT). This maintains the ability of persons to seek independent, external review of government decisions.

Private hearings

33. Schedule 1 ensures that administrative reviews about tax matters must be heard in private if the applicant requests it. The amendments retain the position under law, in order to maintain the principle of confidentiality in taxation hearings.

34. To the extent that Article 14 may apply to administrative review proceedings, Schedule 1 engages the right to a public hearing and permissibly limits it as anticipated by Article 14(1).

35. The amendments are for the legitimate objective of facilitating access to the Tribunal and supporting the proper administration of the tax system, which as a self-assessment system, is founded on taxpayers making full and frank disclosures to the Commissioner of Taxation.

36. Given the sensitive and personal nature of taxation information, it is reasonable and necessary to protect it from broader disclosure. Failing to provide a clear mechanism to protect sensitive personal or commercial information may discourage individuals from seeking review of a decision. Finally, the measure is proportionate, as hearings are only private if requested by a party to the review, rather than requiring private hearings in all circumstances.

The right to freedom from arbitrary and unlawful interferences with privacy in Article 17 of the ICCPR

37. The amendments made by this Schedule engage the prohibition on arbitrary or unlawful interference with privacy contained in Article 17 of the ICCPR.

38. Article 17 of the ICCPR ensures that any interference with an individual's privacy, including their family, home and correspondence, must not be unlawful or arbitrary. Every person also has the right to legal protection against any interference or attacks on their privacy. The Human Rights Committee has interpreted the right to privacy as comprising freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy.

39. For taxation matters, Schedule 1 promotes the right to privacy in three ways. First, it limits who can apply for review to only the entity who received the decision. Second, it ensures that the applicant must give consent for others to be joined as a party to proceedings. Third, it mandates that Tribunal hearings must be in private if requested by the applicant.

40. The amendments also ensure that where a hearing is held in private and the Tribunal publishes reasons for the decision, the Tribunal must ensure that, as far as practicable, its reasons for the decision are framed to avoid identification of the person who made the relevant application.

41. The amendments retain the position under law, which protect taxpayer confidentiality. They balance this against the principle of open justice, and the public interest in the continued availability of precedents for use by taxpayers and their professional advisors. The provisions promote the right to privacy.

Conclusion

42. The Schedule is compatible with human rights. It advances the right to an effective remedy, a fair hearing and the right to freedom from arbitrary and unlawful interference with privacy. To the extent that the Schedule limits any human rights, those limitations are reasonable, necessary and proportionate.

Schedule 2: Home Affairs

43. Schedule 2 would amend the Migration Act to significantly standardise the review process for migration and protection visa applicants with other Tribunal caseloads. Broadly, the amendments would enable the Tribunal to exercise a range of functions and powers in the ART Bill in proceedings for review of reviewable migration and protection decisions, and harmonise and combine Parts 5 and 7 of the Migration Act into one single Part dealing with the conduct of a review. It would also abolish the IAA and provide for those matters to transition into the Tribunal to be dealt with as a reviewable protection decision.

44. The codification of the natural justice hearing rule would apply for certain critical aspects of migration and protection visa review: notification (that is, providing 'deemed receipt'), non-disclosure certificates issued by the relevant Minister, and the information that must be, and must not be, put to the applicant before exercising certain powers. The common law natural justice hearing rule would apply to other aspects of proceedings.

45. Certain provisions that apply currently in the AAT would be retained for the Tribunal to ensure the workability of Tribunal review for migration and protection visa matters. These arrangements would include: specific timeframes to apply for review if people are in immigration detention, disapplying extensions of time to apply for review for reviewable migration and protection decisions, a request-based model for provision of client files to the 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 a non-participating party, and provisions relating to non-disclosure requirements. These arrangements ensure (among other things) that timeframes are clear, finite and compatible with the bridging visa system, and that it is clear when a matter is finally determined.

46. The Schedule engages the following human rights:

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right to an effective remedy in Article 2(3) of the ICCPR

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right to a fair and public hearing in Article 14(1) of the ICCPR

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right of non-refoulement in Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and Articles 6(1) and 7 of the ICCPR

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right to humane treatment in detention in Article 10 of the ICCPR

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right to freedom from lawful expulsion from the territory of a State Party in Article 13 of the ICCPR

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right to freedom from arbitrary and unlawful interferences with privacy Article 17 of the ICCPR.

Right to an effective remedy and a fair and public hearing

47. Article 2(3) of the ICCPR requires that a person whose rights or freedoms are violated shall have an effective and enforceable remedy determined by competent judicial, administrative or legislative authorities. The extent to which Article 2(3) applies to migration and protection decisions is not fully settled because, strictly speaking, there is no general right for a non-citizen to hold a visa or enter or remain in Australia. Nevertheless, the availability of Tribunal review ensures that there is an effective and enforceable remedy determined by a competent administrative authority for decisions made under the Migration Act.

48. Article 14(1) of the ICCPR provides that all persons shall be equal before the courts and tribunals. It further provides that everyone is entitled, in the determination of their 'rights and obligations in a suit at law', to a 'fair and public hearing by a competent, independent and impartial tribunal established by law'. The extent to which Article 14(1) applies to administrative review proceedings (because of a question about whether such proceedings constitute a 'suit at law') is not fully settled.

49. To the extent that they may apply, Schedule 2 promotes the right to an effective remedy in Article 2(3) of the ICCPR and the right to a fair hearing in Article 14(1) of the ICCPR in the ways listed below.

Amendments to provide the Tribunal with jurisdiction to review decisions

50. Schedule 2 promotes the right to an effective remedy by making consequential amendments to provide that decisions may be reviewable by the Tribunal (where they were previously reviewable by the AAT). This maintains the ability of persons to seek independent, external review of government decisions.

Guidance and appeals panel – not available for migration and protection matters

51. The Schedule provides that applicants who have had a decision made for a reviewable migration or reviewable migration decision under the ART Bill may not make an application for a further Tribunal review in the guidance and appeals panel. This may be seen as a limit on the right of applicants to a fair hearing under Article 14(1) of the ICCPR and right to remedy under Article 2(3) of the ICCPR.

52. The legitimate objective pursued by restricting visa related reviewable decisions from appeal to the guidance and appeals panel is to support the efficient and timely resolution of matters, to preserve the finality of Tribunal decisions (ensuring clear visa status for applicants), and to prevent applications being made to the guidance and appeals panel to prolong an applicant's stay in Australia. Given the significant volume of reviewable migration and protection decisions, it is both reasonable and necessary to limit the number of external reviews an applicant may pursue.

53. The measure is also proportionate, as the President of the Tribunal retains the ability to refer matters to the guidance and appeals panel, should the President be satisfied that the application raises an issue of significance to administrative decision-making and if it is appropriate in the interests of justice to re-constitute the Tribunal. This provides that the key systemic benefits of the guidance and appeals panel remain available for these types of decisions.

54. Finally, if Tribunal review does not provide a satisfactory response, a visa applicant may pursue judicial review in the courts.

55. To the extent this Schedule can be considered a limitation on Articles 14(1) and 2(3) of the ICCPR, the limitation is permissible.

Abolition of the IAA (repeal of Part 7AA)

56. Schedule 2 abolishes the IAA and provides for the transition of those matters to the ART as reviewable protection decisions.

57. The IAA involves more limited review procedures for certain visa applicants. The IAA determines the review based only on the material that was available to the primary decision-maker, subject to limited exceptions, and does not interview the applicant.

58. Repealing Part 7AA, together with the transitional arrangements in Schedule 16, provides that these applicants have access to the usual processes for review of protection decisions in the Tribunal. These provisions promote the right to an effective remedy and a fair and public hearing.

Harmonisation of Parts 5 and 7, and greater availability of standard Tribunal powers

59. Schedule 2 combines Parts 5 and 7 of the Migration Act and significantly reduces the differences in provisions applicable to reviewable migration and protection decisions. It also significantly standardises the powers and procedures to be used in migration and protection reviews by providing for powers and procedures under the ART Bill to apply.

60. In amending the powers and procedures available to the Tribunal in relation to reviewable migration and protection decisions, this Schedule does not remove or diminish the right for Tribunal review under the existing the Migration Act.

61. Schedule 2 of the Consequential Bill engages Articles 2(3) and 14 of the ICCPR insofar as it expands the powers and procedures available to the Tribunal in the review of migration and protection reviewable decisions, and significantly adjusts what is covered by the exhaustive statement of the natural justice hearing rule (existing sections 357A and 422B of the Migration Act).

62. The codification of the natural justice hearing rule remains in place for critical aspects of migration and protection visa review: the notification framework (including 'deemed receipt') (items 200-216), the information that must be, and must not be, put before the applicant in a review before certain powers are exercised (items 154-162), and the ability of the Minister to issue non-disclosure certificates (items 175-188). These provisions provide certainty and clarity to applicants. They promote consistent decision making by the Tribunal and Courts, and ensure applicants are given a fair opportunity to present their case. They engage with the right to a fair hearing (to the extent that it applies in a tribunal context – see above) as they exhaustively state what is required to discharge the natural justice hearing rule to the exclusion of the common law, thereby promoting the rights to a remedy and fair hearing in the ICCPR. Importantly, the amendments retain some current settings for the exhaustive statement of procedural fairness, and repeal others that are no longer necessary as they duplicate provisions in the ART Bill or constrain the Tribunal's ability to conduct efficient and fair reviews. Compared to the current system, they cannot be seen as limiting the rights to an effective remedy or a fair and public hearing.

63. The notification framework in Division 7 of Part 5 of the Migration Act (as amended by items 200 to 216) displaces the common law as it relates to giving documents to an applicant, and in particular; when the applicant is taken to have received notification. The current regulations applying under these provisions prescribe modes of providing documents – including by hand to a person, to a person at the last residential or business address, by post and electronic means - and when those documents are taken to have been received. When the notification is taken to be received is non-rebuttable. These requirements may apply to a range of notifications required or permitted under the Migration Act or ART Bill, for example, providing adverse information to an applicant, notifying them of a hearing, or informing them of a Tribunal direction. The effect of the provision is that the Tribunal is able to continue the review on the basis that all documents, provided in accordance with Division 7, have been received by the applicant, supporting an efficient review. This can engage with the right to a fair hearing where an applicant has been deemed to have been notified, but has not received actual notification.

64. The notification framework pursues the legitimate objective of supporting efficient Tribunal review of decisions. The limitation is necessary in light of the significant volume of migration and protection matters, and recognises that the Tribunal needs to have certainty about how it communicates and when essential documents which allow the review to progress have been received. It is reasonable and proportionate, as the details used for the notification scheme are provided by the applicant, who may nominate themselves or an authorised recipient to receive Tribunal documents or notifications. As such, the limitation is permissible.

65. The 'adverse information' provision, contained in section 359A of the Migration Act (as amended by items 154-162), and the ability for the Minister to issue non-disclosure certificates contained in Division 6 of Part 5 of the Migration Act (as amended by items 175-188) limit what information may be put to a person in a review. For 'adverse information', categories of information such as information that is not specifically about the applicant, or information that the applicant has provided themselves, is excluded. The Ministerial certificate regime allows the Minister to certify that certain information must not be disclosed on the basis that its disclosure would prejudice the security, defence or international relations of Australia; or disclose deliberations or decisions of the Cabinet. Where such a certificate is issued, the information may only be provided to the Tribunal, and not to the applicant. These engage with the rights to a fair hearing and an effective remedy by limiting, in some circumstances, the ability of a party to access some information in the proceedings.

66. The adverse information framework is necessary to support the efficient operation of the review system. The types of information which must not be disclosed are confined to information that is not directly about the applicant, information that the applicant has provided (thus should be aware of already), or information that has been provided to the applicant in a statement of the original decision. The ministerial certificate regime is necessary to promote the legitimate objectives of national security and protecting the confidentiality of Cabinet deliberations. These limitations are reasonable and necessary to manage the volume of migration and protection reviews, while minimising the disadvantage to the applicant, as the information is either not about them, is information they ought to have access to already, or is against the public interest to disclose. As such, the limitation is permissible.

67. The legitimate purpose of the ministerial certificate regime is to promote national security and the public interest (as envisioned by Article 14(1) of the ICCPR). Strict criteria apply for the issuing of public interest certificates over a proceeding, and the Tribunal can allow disclosure of information subject to a certificate in limited circumstances. As such, the limitation is permissible.

Public hearing

68. In addition to a fair hearing, Article 14(1) of the ICCPR provides the general principle that the hearing should be in public. However, Article 14(1) also provides that the press and the public may be excluded from all or part of a trial for reasons including when the interest of the private lives of the parties so require.

69. Section 367B of Schedule 2 engages this right by preserving the existing requirement in the Migration Act that review of a reviewable protection decision must be in private (noting that clause 69 of the ART Act, which generally requires hearings to be in public, applies to hearings of proceedings for the review of reviewable migration decisions).

70. The requirement to have private hearings under new 367B is for the purpose of protecting the identity and safety of the review applicant and any family members or friends who may have remained in the country from which the review applicant has claimed fear of persecution or harm. This is a reasonable limitation in that protection visa applicants can be particularly vulnerable witnesses. It is proportionate because it does not limit the applicant's ability to respond to information in the review. Decisions and reasons for decision can still be published, provided any identifying or sensitive information is first redacted. This is within the scope of exceptions permitted under Article 14(1). Therefore, to the extent that Schedule 2 would limit the right to a public hearing for certain reviewable decisions, the limitations are reasonable, proportionate and justified.

Timeframes

71. Schedule 2 provides a reduced timeframe (of seven or nine days after being notified) for certain cohorts when applying for review, replacing the standard provisions in the ART Bill on these matters. It applies the standard 28-day timeframe (as provided for in the ART Bill for all other matters) to most migration and protection reviewable decisions. This represents an increase for many existing timeframes under the Migration Act, but is a reduction from 70 days for certain reviewable decisions in recognition that longer timeframes for persons who are offshore are no longer required when applications can be made electronically. More consistent and standardised timeframes promote clarity, consistency and accessibility of review by simplifying application processes and promoting efficiency within the Tribunal.

72. Paragraph 347(3)(a) in Schedule 2 provides that an application for review of a decision from eligible applicants in immigration detention must be made within seven days after the day the applicant is notified of the decision. The new seven-day timeframe represents a significant increase for some applicants, who previously had two days to apply for review. This promotes their ability to consider their prospects at review and gather information while ensuring the application period is proportionally balanced against not materially extending a person's time in detention or causing any other undue delay of their departure from the country (where warranted).

73. The Consequential Bill retains section 367 of the Migration Act which provides that for certain bridging visa decisions, being a refusal to grant, or cancellation of, a visa that requires a person to be detained, the Tribunal must make its decision on review, and notify the applicant of the decision, within the prescribed period. The existing prescribed period in the Migration Regulations is seven working days after the day on which the review application is received.

74. Section 500(6B) as amended by item 267 in Schedule 2 makes consequential amendments that have the effect of retaining the existing nine-day timeframe to apply for review of a decision to refuse or cancel a visa on character grounds. In addition, Schedule 2 maintains the current approach that for the refusal or cancellation of a visa under section 501 or about a revocation request under section 501C, the Tribunal must make a decision within 84 days after the day on which the person was notified of the decision under review. This remains necessary in order to expedite review of decisions made by a delegate of the Minister under the character provisions. These provisions continue to balance the Government's concern to expedite review of character decisions against the need to ensure that the Tribunal has the ability to properly review these decisions. Subsection 347(5) of Schedule 2 also provides that the Tribunal cannot extend the time period to make an application for review of a reviewable migration or protection decision: see clause 19 of the ART Bill.

75. These provisions maintain the status quo in some areas, and facilitate standardised procedures for the Tribunal in other areas, and may tangentially impact on the right to an effective remedy and right to a fair hearing in the ICCPR. However, any potential limitation is reasonable and necessary to maintain the integrity of the immigration framework. This framework requires there to be certainty about when a review application has been made and when a matter has been 'finally determined' so it is clear whether a person is eligible to be granted a substantive or bridging visa, and avoid becoming an unlawful non-citizen. Condensed timeframes for the conduct of a review also have the effect of promoting the efficient review of applications for persons in immigration detention. These measures are all consistent with, and promote, the Government's policy objective of reducing the time unlawful non-citizens spend in detention and preventing unlawful detention. Any limitation on the right to an effective remedy and right to a fair hearing set out above may be done given there is a legitimate purpose in promoting Article 9(4) of the ICCPR, in that the Tribunal may decide an application without delay, as well as Article 10 in that it promotes the right to humane treatment in detention.

Non-refoulement obligations

76. Article 3(1) of the CAT provides '[n]o State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture'.

77. These rights are engaged as Schedule 2 provides for Tribunal review of certain decisions made under the Migration Act, including review of decisions in relation to protection visa applicants, protection related bridging visa applicants, or former protection visa holders, and may impact on whether such applicants are granted or continue to hold a visa. Depending on the outcome of the review, these persons may become liable for removal from Australia.

78. Schedule 2 standardises the review process for migration and protection visa applicants under new Part 5 of the Migration Act. It enables the Tribunal to exercise relevant standard powers and procedures for reviewable migration and protection decisions, and adjusts the matters covered by the 'exhaustive statement of the natural justice hearing rule'. In doing so, the Consequential Bill strengthens the administrative review framework without removing or otherwise diminishing a visa applicant, or former visa holder's, access to administrative review of a decision to refuse to grant a person a visa, or cancel a person's visa.

79. Schedule 2 abolishes the IAA and provides that applicants that are, or would have, been eligible to be referred to the IAA will instead have their matter reviewed by the ART as a reviewable protection decision, using the Tribunal's standard powers and procedures (as modified). The Consequential Bill extends the administrative review available to applicants who would have otherwise had access to review by the IAA, which provided a limited review (for example in relation to the consideration of new information).

80. Therefore, this Schedule promotes human rights by retaining protections from removal where a person engages non-refoulement obligations under the CAT and the ICCPR, as well as under the Refugees Convention.

Freedom from unlawful expulsion

81. Article 13 of the ICCPR provides that an alien lawfully in the territory of a State Party may be expelled only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against their expulsion and to have their case reviewed by, and be represented before, the competent authority.

82. A decision made by the Minister, or a delegate of the Minister to refuse to grant, or cancel, a visa, which could lead to the removal of the affected person from Australia as an unlawful non-citizen, must be made according to and within the statutory parameters provided for by the Migration Act and the ART Bill. This includes compliance with procedural fairness requirements that are designed to give the person an opportunity to put forward their case and submit reasons why a decision should be made in their favour.

83. Schedule 2 of the Consequential Bill engages Article 13 insofar as it expands the powers and procedures available to the Tribunal in the review of reviewable migration and protection decisions, and adjusts what is covered by the 'exhaustive statement of the natural justice hearing rule' (existing sections 357A and 422B of the Migration Act), thereby reducing the extent of matters relating to the Tribunal's conduct that displace the common law natural justice hearing rule. These amendments ensure that there continues to be a robust administrative review mechanism available for reviewable migration and protection decisions, allowing applicants a fair opportunity to put forward their case.

84. In amending the powers and procedures available to the Tribunal in relation to migration and protection matters, Schedule 2 does not remove or diminish the right to administrative review which currently exists in the Migration Act. The codification of procedural fairness remains in place for critical aspects of review of reviewable migration and protection decisions: the notification framework (including 'deemed receipt'), the information that must be put, and must not be put, before the applicant when exercising certain decisions in a review, and the ability of the Minister to issue non-disclosure certificates. These codified provisions provide certainty and clarity to applicants and also promote consistent decision making by the Tribunal and Courts, and ensure applicants are given a fair opportunity to present their case. Given the high volume of matters heard, it is necessary to have certainty about what information can and must be put to an applicant, and when a party has been notified, and any limitation is reasonable, necessary and proportionate.

85. Therefore, to the extent that this Schedule engages Article 13 of the ICCPR, it is compatible with the human rights protected therein.

Freedom from arbitrary and unlawful interferences with privacy

86. Article 17 of the ICCPR provides that an interference with an individual's privacy must have a lawful basis and must not be arbitrary. That is to say, it must be in accordance with the provisions, aims and objectives of the ICCPR and be reasonable in the circumstances. Reasonable interferences with privacy are measures which are based on reasonable and objective criteria and which are proportionate to the purpose for which they are adopted.

87. The provisions relating to non-disclosure, collection, use and storage of personal information will remain largely unchanged under Schedule 2 of the Consequential Bill. The harmonised provisions for reviewable migration and protection decisions, as amended, would continue to provide rigorous mechanisms to protect the personal information of and other confidential evidence given by the review applicant.

88. As referred to above in relation to the right to a fair and public hearing, section 367B of the Consequential Bill provides that the review of a reviewable protection decision must be in private.

89. Therefore, this Schedule is compatible with, and promotes, the human rights protected by Article 17.

Conclusion

90. This Schedule is compatible with human rights. It advances the protection of human rights, specifically the right to an effective remedy and a fair hearing, the right of non-refoulement and freedom from unlawful removal, and freedom from arbitrary and unlawful interferences with privacy. To the extent that this Schedule limits any human rights, those limitations are reasonable, necessary and proportionate.

Schedule 3: Social Services

91. Schedule 3 of the Bill contains consequential amendments to a number of Acts in the DSS portfolio.

92. The amendments retain special provisions that are fundamental to the operation of Tribunal review for social security and child support matters, including provisions that disapply – or apply instead of – provisions of the ART Bill. These provisions will be retained to, among other things, protect the right to social security and to uphold longstanding principles and practices of administrative review in the social security context.

93. Further, the proposed ART Bill amendments would establish Part 5A in the ART Bill, providing a pathway for parties to reviews of social services decisions (which include social security, family assistance, child support, paid parental leave and student assistance reviews) to seek second review of Tribunal decisions. These amendments to the ART Bill would ensure that the Tribunal operates as intended when providing second review for social services 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 Article 14(1) of the ICCPR

•

right to freedom from arbitrary and unlawful interferences with privacy in Article 17 of the ICCPR

•

the best interests of the child and the right of a child to express his or her opinion in Articles 3 and 12 of the CRC

•

right to access to justice for people with disability in Article 13 of the CRPD

Right to social security

Date of effect provisions

95. Schedule 3 would engage the right to social security contained in Article 9 of the ICESCR. The right to social security requires that a social security scheme is established, and that responsibility is taken for ensuring the effective administration of the system. The amendments clarify the date of effect provisions under the Social Security (Administration) Act 1999 to ensure they apply consistently and appropriately to Tribunal decisions. Ensuring the date of effect provisions operate consistently at each stage of review is important to ensure the efficient administration of the social security scheme and to ensure that the social security scheme is being applied fairly across the social security cohort.

Second review rights

96. Further, the ART Bill standardises and harmonises Tribunal proceedings where appropriate and to the extent possible. The ART Bill also introduces improvements to the conduct of social services reviews, so that the correct or preferable decision can be reached during the Tribunal's first review, minimising the burden that seeking further review has on applicants. However, these changes will take time to implement and to mature. The retention of second review for certain social services decisions will ensure that existing systems and safeguards remain in place until that can occur.

97. These amendments would preserve the right to social security and ensure that social security law is applied in a fair and consistent manner, promoting the right to social security.

The right to an effective remedy and the right to a fair hearing in Articles 2(3) and 14(1) of the

Private hearings

98. Schedule 3 requires that most reviews for social security and child support applicants occur in private. The amendments are for the legitimate objective of facilitating access to the Tribunal and protecting the privacy of individuals.

99. Private hearings for social security and child support applicants are reasonable and necessary due to the need to consider the safety of parties and the need for privacy (especially in the case of child support matters). Failing to provide a clear mechanism to protect sensitive personal information may discourage individuals from seeking review of a decision. The measure is proportionate as the need to protect sensitive personal information arises in all hearings of this type, justifying the broader approach to private hearings. Supporting this proportionate approach, Schedule 3 removes the blanket prohibition on publishing these decisions. The Bills instead provide that decisions in social security or child support reviews may be published, provided identifying details and other sensitive information are first removed.

100. To the extent this Schedule can be considered a limitation on Article 14 of the ICCPR, the limitation is permissible.

Excluding review by the guidance and appeals panel

101. The Schedule provides that guidance and appeals panel review will not be available for most social security decisions. The legitimate objective for this measure is to support the efficient operation of the administrative review system as a whole and the fast resolution of matters.

102. Schedule 3 maintains the by right second review pathway for social security applicants. In circumstances where applicants may seek second review, further review could not be sought from the guidance and appeals panel, as there is already a second layer of external administrative review for these matters. Allowing access to two further layers of review in the Tribunal is unnecessary and would delay the finalisation of matters. If Tribunal review does not provide a satisfactory outcome, the claimant may pursue judicial review in the courts on points of law.

103. However, the President may still refer an application for review of a decision to the guidance and appeals panel on the basis it raises an issue of significance to administrative decision-making, on either first or second review.

104. To the extent this Schedule can be considered a limitation on Article 2(3) of the ICCPR, the limitation is permissible

The right to freedom from arbitrary and unlawful interferences with privacy in Article 17 of the ICCPR

Publication of social security decisions

105. These amendments would override provisions that would otherwise operate to prevent the Tribunal from publishing decisions in social security and family assistance matters, allowing de-identified decisions to be published.

106. The amendments engage the right to privacy in that they would allow for the publication of information about a person. Requiring the de-identification of information prior to publication, so individuals will not be identifiable from the decision that is published provides an appropriate safeguard and ensures that limits on the right to privacy are proportionate. The publication of Tribunal decisions, particularly where hearings must be conducted in private, supports open justice and consistency in Tribunal decision-making, which advance the right to a fair hearing articulated in Article 14 of the ICCPR.

The best interests of the child and the right of a child to express his or her opinion in Articles 3 and 12 of the CRC

107. The rights of parents and children are contained in Article 3 of the CRC and Article 24(1) of ICCPR. Under the CRC, countries are required to apply the principle of the best interests of the child. The principle applies to all actions concerning children and requires active measures to protect their rights and promote their survival, growth, and wellbeing, as well as measures to support and assist parents and others who have day-to-day responsibility for ensuring recognition of children's rights.

108. This Schedule promotes the rights of the child by protecting children and parents' rights to child support and family assistance. It preserves existing rights for children such as ensuring that proceedings for Tribunal review for social security and child support matters are heard in private. Private hearings protect the identities of parties in child support and family assistance matters and acknowledges a child's right to anonymity in these types of matters.

Rights of access to justice for people with disability in Article 13 of the CRPD

109. Article 13 of the CRPD requires the Government to ensure effective access to justice for persons with disabilities, including facilitating their effective role in all legal proceedings.

110. Many users of the Tribunal will be persons with disabilities who may require Tribunal review of a decision affecting them. This Schedule promotes the right of access to justice for people with disability by making consequential amendments to provide that decisions may be reviewable by the Tribunal (where they were previously reviewable by the AAT). Other categories of decisions such as Disability Support Pension decisions will continue to remain reviewable within the relevant jurisdictional area of the Tribunal.

111. Most relevantly, the Tribunal will have jurisdiction to review decisions made under the NDIS Act. The ART Bill establishes a jurisdictional area within the Tribunal for the review of decisions made under the NDIS Act. This ensures specialised expertise and tailored practices are developed and applied to the review of a decision under the NDIS Act within the Tribunal.

Conclusion

112. This Schedule is compatible with human rights. They advance the protection of human rights, specifically the right to social security, right to an effective remedy, right to privacy, rights of the child and rights of access to justice for people with disability. To the extent that the amendments limit the right to a fair hearing and the right to privacy, those limitations are reasonable, necessary and proportionate.

Schedule 4: Amendments relating to security matters

113. Schedule 4 of the Consequential Bill contains amendments to a number of Acts, including (but not only) amendments that are relevant to security matters (noting that some of the amendments in Schedule 4, including a number of amendments to the Freedom of Information Act 1982 (FOI Act), do not relate to security matters). This Schedule would make consequential amendments needed as a result of the repeal of the AAT Act and the establishment of the Tribunal – particularly where matters would be heard in the Intelligence and Security jurisdictional area (which would replace the AAT's Security Division). The schedule would facilitate the harmonisation of various provisions contained across various subject-matter Acts relating to protections for matters involving national security information.

114. In addition to the rights engaged, as outlined above, the Schedule engages the right to an effective remedy and a fair hearing in Articles 2(3) and 14 of the ICCPR.

The right to an effective remedy and the right to a fair hearing in Articles 2(3) and 14(1) of the ICCPR

115. Article 2(3) of the ICCPR provides that States shall undertake to ensure the right to an effective remedy for any violation of rights or freedoms recognised by the ICCPR. It includes the right to have a remedy determined by competent judicial, administrative or legislative authorities. This right also encompasses the duty to ensure component authorities enforce any such remedies when granted.

116. Article 14(1) of the ICCPR protects the right that all persons are equal before courts and tribunals. It further provides that every person, in the determination of 'rights and obligations in a 'suit at law' is entitled to a 'fair and public hearing by a competent, independent and impartial tribunal established by law'. Article 14(1) also recognises that 'the press and public may be excluded from all or Part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires...'.

117. The extent to which Article 14(1) applies to administrative review proceedings (whether such proceedings constitute a 'suit at law') is not fully settled.

Conferring jurisdiction on the Tribunal

118. Schedule 4 promotes the right to an effective remedy by making consequential amendments to provide that decisions may be reviewable by the Tribunal (where they were previously reviewable by the AAT). This maintains the ability of persons to seek independent, external review of government decisions. The Schedule would amend relevant Acts to continue existing limitations on who may seek review of a decision (moving relevant provisions from the AAT Act to the Act which confers the jurisdiction). These amendments only prevent persons other than the subject from making an application (for example, by preventing organisations or associations from separately seeking review), and do not engage this right.

Excluding review by the guidance and appeals panel

119. The Schedule provides that guidance and appeals panel review will not be available for decisions under the FOI Act. The legitimate objective for this measure is to support the efficient operation of the administrative review system as a whole and the fast resolution of matters.

120. The Schedule maintains the existing pathway for applicants seeking review under the FOI Act to seek review by the Information Commissioner (IC) prior to review by the Tribunal. These applicants will not be able to seek further review from the guidance and appeals panel, as there is already a layer of external administrative review for these matters. Allowing access to two further layers of review in the Tribunal is unnecessary and would delay the finalisation of matters. If Tribunal review does not provide a satisfactory response, the claimant may pursue judicial review 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 of significance to administrative decision-making. However, section 93A of the FOI Act provides an ability for the IC to issue guidelines about the operation of the FOI Act. It is reasonable and necessary to exclude the 'guidance' function of the Tribunal in relation to FOI matters to avoid conflicts with guidelines issued by the IC under the FOI Act. The guidance function exists to provide guidance to other decision-makers. Restricting access to the function for certain types of matter does not engage the rights in the ICCPR, as they do not impact the ability of an individual applicant to seek review of their decision.

122. To the extent this Schedule can be considered a limitation on Article 2(3) of the ICCPR, the limitation is permissible.

Private hearings

123. While generally, the Tribunal will operate on a model of public hearings and publication of decisions, proceedings in the Intelligence and Security jurisdictional area will be heard in private. This Schedule will repeal provisions requiring private hearings in these matters; however, these settings will be consolidated and retained in the ART Bill.

124. Provision for private hearings in these circumstances is permissible under Article 14(1), which contemplates national security as a reason for excluding the public from proceedings. Matters reviewable in the Intelligence and Security jurisdictional area involve national security information.

Conclusion

125. This Schedule is compatible with human rights. It advances the protection of human rights, specifically the right to an effective remedy and a fair hearing. To the extent that the Schedule limits any human rights, those limitations are reasonable, necessary and proportionate.

Schedules 5 to 14: Agriculture, Fisheries and Forestry; Attorney-General; Climate Change, Energy, the Environment and Water; Defence; Employment and Workplace Relations; Finance; Foreign Affairs and Trade; Health and Aged Care; Industry, Science and Resources; and Infrastructure, Transport, Regional Development, Communications and the Arts

126. Schedules 5 to 14 (various portfolios) contain a range of minor amendments. The amendments would make terminology changes, updating outdated references to the 'Administrative Appeals Tribunal' and 'Administrative Appeals Tribunal Act 1975' to refer instead to the 'Administrative Review Tribunal' and 'Administrative Review Tribunal Act 2024'. These amendments also make minor technical amendments to ensure legislation continues to operate in substantively the same way in relation to the Tribunal.

127. In addition to the rights engaged, as outlined above, the Schedule engages the right to an effective remedy in Articles 2(3) of the ICCPR.

The right to an effective remedy in Article 2(3) of the ICCPR

128. Article 2(3) of the ICCPR provides that States shall undertake to ensure the right to an effective remedy for any violation of rights or freedoms recognised by the ICCPR. It includes the right to have a remedy determined by competent judicial, administrative or legislative authorities. This right also encompasses the duty to ensure component authorities enforce any such remedies when granted.

Conferring jurisdiction on the Tribunal

129. These Schedules promote the right to an effective remedy by making consequential amendments to provide that decisions may be reviewable by the Tribunal (where they were previously reviewable by the AAT). This maintains the ability of persons to seek independent, external review of government decisions.

Conclusion

130. These Schedules are compatible with human rights. The Schedules advance the right to an effective remedy.

Schedule 15: Veterans' Affairs

131. This Schedule would make consequential amendments to legislation in the Veterans' Affairs portfolio, needed as a result of the repeal of the AAT Act and the establishment of the Tribunal. The schedule would amend legislation to retain existing procedural provisions necessary to ensure the effective review of veteran matters, in recognition of the physical and mental health circumstances of the veteran cohort and the unique nature of military service.

132. Establishment of the Tribunal does not alter access arrangements to the VRB. The Tribunal may review matters in the first instance in some cases (first-tier review) and in others reviews matters arising from decisions of the VRB (second-tier review).

133. In addition to the rights engaged, as outlined above, the Schedule engages the right to an effective remedy and the right to a fair hearing in Articles 2(3) and 14 of the ICCPR.

Right to an effective remedy and right to a fair and public hearing in Articles 2(3) and 14 of the ICCPR

134. Article 2(3) of the ICCPR provides that States shall undertake to ensure the right to an effective remedy for any violation of rights or freedoms recognised by the ICCPR. It includes the right to have a remedy determined by competent judicial, administrative or legislative authorities. This right also encompasses the duty to ensure component authorities enforce any such remedies when granted.

135. Article 14(1) of the ICCPR provides that all persons shall be equal before the courts and tribunals. It further provides that everyone is entitled, in the determination of their 'rights and obligations in a suit at law', to a 'fair and public hearing by a competent, independent and impartial tribunal established by law'.

Conferring jurisdiction on the Tribunal

136. Schedule 15 promotes the right to an effective remedy by making consequential amendments to provide that decisions may be reviewable by the Tribunal (where they were previously reviewable by the AAT). This maintains the ability of persons to seek independent, external review of government decisions for decisions made under the Acts in the Veterans' Affairs portfolio.

Applications cannot be made to the guidance and appeals panel

137. The schedule provides that where the VRB has made a determination under the Veterans' Entitlements Act 1986 (VEA) or the Military Rehabilitation and Compensation Act 2004 (MRCA) prior the Tribunal's review, there cannot be a further appeal of the Tribunal's decision to the guidance and appeals panel. The legitimate objective for this measure is to support the efficient operation of the merits review system as a whole and to promote the fast resolution of matters.

138. The schedule maintains the existing pathway for applicants seeking review under the VEA or the MRCA to seek review by the VRB prior to review by the Tribunal. These applicants will not be able to seek further review from the guidance and appeals panel, as there is already a layer of external administrative review for these matters. Allowing access to two further layers of review in the Tribunal is unnecessary and would delay the finalisation of matters. If Tribunal review does not provide a satisfactory response, the claimant may pursue judicial review in the courts on points of law.

139. Precluding applicants to seek review from the guidance and appeals panel is proportionate, as the President of the Tribunal retains the ability to refer matters to the guidance and appeals panel on first review, should the President be satisfied that the application raises an issue of significance to administrative decision-making and if it is appropriate in the interests of justice to re-constitute the Tribunal. This provides that the key systemic benefits of the guidance and appeals panel remains available to applicants.

140. To the extent this Schedule can be considered a limitation on Article 2(3) of the ICCPR, the limitation is permissible.

141. These rights are promoted through the amendments to Veterans' Affairs portfolio legislation, which retain existing special arrangements for certain tribunal procedures and practices, in recognition of military service. The Schedule also retains the existing unique arrangements of having two merits review bodies for veteran matters through the VRB and the Tribunal.

Conclusion

142. The Schedule is compatible with human rights. Despite certain decisions being excluded from application to the guidance and appeals panel, the Schedule advances the human rights of veterans and their dependants to an effective remedy and a fair and public hearing. To the extent that the portfolio may limit any human rights, those limitations are reasonable, necessary and proportionate.

Schedule 16 and 17: Transitional provisions and repeal of the AAT Act

143. Schedule 16 of the Consequential Bill contains measures to effect the transition from the AAT to the ART. This includes transitioning the Tribunal's active, pending and potential caseloads, including matters currently before the courts, to minimise disruption and to maintain review rights. The Consequential Bill also contains conditions for certain AAT members (including the President) to transition to the ART, and sets out arrangements for certain members who do not.

144. In addition to the rights engaged, as outlined above, the Schedule engages the following rights:

•

right to an effective remedy and a fair and public hearing in Articles 2(3) and 14 of the ICCPR

•

right to work and rights in work in Articles 6(1) and 7 of the ICESCR.

Right to an effective remedy and a fair and public hearing in Articles 2(3) and 14 of the ICCPR

145. Article 2(3) of the ICCPR requires that a person whose rights or freedoms are violated shall have an effective and enforceable remedy determined by competent judicial, administrative or legislative authorities. Article 14(1) of the ICCPR provides that all persons shall be equal before the courts and tribunals. It further provides that everyone is entitled, in the determination of their 'rights and obligations in a suit at law', to a 'fair and public hearing by a competent, independent and impartial tribunal established by law'. These rights are promoted through the transitional provisions.

146. The transitional provisions in Schedule 16 engage with the right to a fair and public hearing in Article 14(1) of the ICCPR and the right to an effective remedy in Article 2(3) of the ICCPR. Schedule 16 provides for the continuity of applications to, and proceedings in, the AAT before the commencement day of the new Tribunal.

147. Schedule 16 ensures that applicants who had a right to file, or have filed, an application to the AAT are not disadvantaged as a result of the commencement of the ART Bill. To the extent possible, Schedule 16 ensures continuity in reviews that have commenced prior to the Tribunal coming into operation, minimising confusion and unnecessary delay, and ensuring the applicant's right to a fair hearing and effective remedy are promoted.

Right to work and rights in work in Articles 6(1) and 7 of the ICESCR

148. Article 6(1) guarantees the right to work, which includes the right of everyone to the opportunity to gain their living by work which they freely choose or accept. Article 7 recognises the right of everyone to the enjoyment of just and favourable conditions of work.

149. The transitional provisions in Schedule 16 and 17 engage these rights. Repeal of the AAT Act would cease the employment of existing members and staff in the AAT. Schedule 16 provides transitional provisions which promote the right to work by providing for the continued employment in the new Tribunal of all ongoing and non-ongoing staff, members who are judges, and members who have been appointed to the AAT through a merit-based process since January 2023.

150. Schedule 16 ensures that members of the AAT who automatically transfer to the Tribunal (because they have been appointed through a merit-based process since January 2023) will retain the same terms and conditions of employment, and that their remuneration will not be reduced for the period remaining on the term of their AAT appointment. Accordingly, their terms and conditions will not be diminished.

151. Schedule 16 ensures that members of the AAT who are appointed to the Tribunal will have their previous remuneration carried over for up to four months (unless their remuneration as a member of the ART would be higher). These arrangements ensure that the AAT members' right to work and rights in work are promoted.

152. All current members have had the opportunity to apply for membership of the Tribunal through a merit-based process consistent with the Guidelines of Appointments to the AAT. Schedule 16 provides that full-time members of the AAT who are not appointed to the Tribunal, but whose terms as AAT members would have continued beyond the abolition of the AAT, receive compensation for the termination of their appointment.

Conclusion

153. This Schedule is compatible with human rights. It advances the protection of human rights, specifically the right to an effective remedy and a fair hearing. To the extent that the Schedule may limit any human rights, those limitations are reasonable, necessary and proportionate.

NOTES ON CLAUSES

Item 1: Short title

154. This item provides for the short title of the Act to be enacted by the Bill to be the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Consequential Bill).

Item 2: Commencement

155. This item provides for the commencement of each provision in the Consequential Bill, as set out in the table at subclause 2(1).

156. Table item 1 provides that items 1-4 of the Consequential Bill commence on the day the Consequential Bill receives the Royal Assent.

157. Table item 2 provides that Schedules 1-15 of the Consequential Bill (which contains consequential amendments, including reference changes, to a number of Commonwealth Acts) will commence at the same time as the Administrative Review Tribunal Bill 2024 (ART Bill) commences.

158. Table item 2A provides that Schedule 16, item 1 (which contains the definitions needed to support the transition from the AAT to the ART) commences the day after the Consequential Bill receives the Royal Assent. This item contains definitions which are referred to in other items in Schedule 16 which will commence on the day after the Consequential Bill receives Royal Assent. The definitions must be in effect in order for Schedule 16 to be correctly understood.

159. Table item 3 provides that Schedule 16, items 2-30 will commence at the same time as the ART Bill.

160. Table item 4 provides that Schedule 16, item 31 will commence the day after the Consequential Bill receives the royal assent.

161. Table item 4A provides that Schedule 16, items 32 (AAT members not appointed as ART members) and 33 (Compensation) commence at the same time as other Schedules in the Consequential Bill. That is, they are to commence at the same time as the ART Bill, but will not commence if the ART Bill does not commence.

162. Table item 4B provides that Schedule 16, item 33A (Appointments to commence at or shortly after the transition time) will commence the day after the ART Bill receives the Royal Assent. Section 4 of the Acts Interpretation Act 1901 (Acts Interpretation Act) empowers the Attorney-General to make appointments under the ART Bill between its enactment and commencement. It is important for the effective operation of the item for it to commence on enactment of the ART Bill so that it applies to any appointments made from the time they are able to be made.

163. Table item 5 provides that Schedule 16, items 34-51 commence at the same time as other Schedules in the Consequential Bill. That is, they are to commence at the same time as the ART Bill, but will not commence if the ART Bill does not commence.

164. Table item 5A provides that Schedule 16, item 52 (Consultation in relation to rules before the transition time) commences the day after the Bill receives the Royal Assent. This item enables the Minister to make rules under the ART Bill ahead of commencement of the ART Bill (through consultation with the AAT President). As such, the provision must commence as soon as possible to allow sufficient time for the Minister to develop rules, and undertake the appropriate consultation for rules to be settled and in place ahead of the Tribunal's commencement.

165. Table item 6 provides that Schedule 17 (which repeals the Administrative Appeals Tribunal Act 1975 (AAT Act)) commences at the same time as other Schedules in the Consequential Bill. That is, they are to commence at the same time as the ART Bill, but will not commence if the ART Bill does not commence.

166. Item 2(2) specifies that information in column 3 of the table at item 2(1) is not a part of the Consequential Bill, and information may be inserted in this column, or information in it may be edited, in any published version of the Consequential Bill.

Item 3: Schedules

167. This item clarifies the interaction of amendments to legislation within Schedules to the Consequential Bill. Where legislation is amended 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 Administrative Appeals Tribunal Act 1975 etc.

168. This item updates references in legislation in force at the time that the ART Bill commences to appropriate, equivalent, or near equivalent references.

169. The item updates references to the AAT Act, provisions of the AAT Act, the Administrative Appeals Tribunal (AAT) itself or to the Registrar of the AAT to references to the ART Bill, the equivalent provision/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 by the Consequential Bill, or the Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Bill, it can still operate as originally intended.

SCHEDULE 1 - TREASURY

OUTLINE

170. Schedule 1 of the Consequential Bill contains consequential amendments to a number of Acts in the Treasury portfolio.

171. The amendments retain special provisions that are fundamental to the operation of Tribunal review for tax and charity matters, including provisions that disapply – or apply instead of – provisions of the ART Bill. These provisions ensure the workability of these frameworks, protect tax revenue collection and uphold longstanding core tax principles and practices. The schedule includes provisions:

•

restricting who can apply for review, who can be joined as a party to proceedings and mandating private hearings at the applicant's request to protect taxpayer confidentiality and otherwise ensure the workability of proceedings

•

retaining the longer 60-day standard timeframe for lodging applications to ensure consistency with the broader review frameworks for such matters and avoid disadvantaging applicants

•

maintaining rules limiting the application for review to the Tribunal to the grounds stated in the application for internal review to ensure the review is focused on directly relevant issues, promoting the efficient conduct of proceedings

•

retaining rules which require the initial lodgement with the Tribunal of all documents that are necessary to the review (rather than all documents relevant to the review), noting the Tribunal will be able to request additional documents it requires in particular cases and this ensures the workability and efficient conduct of tax proceedings

•

maintaining rules which provide that the applicant has the burden of proof for tax and charity matters, to ensure the workability of such proceedings and consistency with Australia's tax system being based on self-assessment

•

restricting the operation of the Tribunal's power to make orders staying or otherwise affecting the implementation of a decision whilst the decision is under review, to protect the integrity and workability of the tax system and noting the strong linkages charity decisions have with other government decisions, and avoid imposing undue costs associated with multiple changes to a decision whilst it is still under review.

172. Some amendments remove special procedures for tax matters. In these cases, the standard provisions in the ART Bill apply. Other amendments provide greater harmonisation of provisions that apply instead of the ART Bill provisions for tax matters.

173. In addition, the amendments remove the general exemption from the standard framework for a decision-maker to give reasons for a decision on request, which currently applies for taxation matters. This is consistent with the current administrative practice of the Australian Taxation Office, where reasons are generally already given for decisions in accordance with best practice for administrative decision-making.

174. Amendments are made to ensure that the new guidance and appeals panel framework operates consistently with the broader taxation and charity frameworks.

175. The Schedule also makes a range of minor amendments. This includes amendments to update terminology, such as outdated references to the AAT or AAT Act. These amendments ensure that the Tribunal has jurisdiction to review decisions that are reviewable by the AAT and that various provisions continue to operate in the same way as the current law for the Tribunal. Other minor amendments include relocating exceptions from standard provisions from the AAT Act to a Treasury portfolio Act, replacing references to provisions of the AAT Act with references to the equivalent provision under the ART Bill and repealing redundant provisions which contain outdated terminology. In some cases, provisions are amended to cover both the AAT and Tribunal to ensure these provisions operate as intended or to manage transitional issues.

176. This Schedule contains consequential amendments covering the following Acts in the Treasury portfolio:

•

A New Tax System (Australian Business Number) Act 1999

•

ASIC Supervisory Cost Recovery Levy (Collection) Act 2017

•

Australian Charities and Not-for-profits Commission Act 2012

•

Australian Securities and Investments Commission Act 2001

•

Australian Small Business and Family Enterprise Ombudsman Act 2015

•

Business Names Registration Act 2011

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Business Names Registration (Transitional and Consequential Provisions) Act 2011

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Commonwealth Registers Act 2020

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Competition and Consumer Act 2010

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Corporations Act 2001

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Crimes (Taxation Offences) Act 1980

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Excise Act 1901

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Financial Regulator Assessment Authority Act 2021

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Financial Sector (Transfer and Restructure) Act 1999

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Fringe Benefits Tax Assessment Act 1986

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Income Tax Assessment Act 1936

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Income Tax Assessment Act 1997

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National Consumer Credit Protection Act 2009

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Payment Times Reporting Act 2020

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Petroleum Excise (Prices) Act 1987

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Petroleum Resource Rent Tax Assessment Act 1987

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Retirement Savings Accounts Act 1997

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Small Superannuation Accounts Act 1995

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Superannuation Industry (Supervision) Act 1993

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Superannuation (Self Managed Superannuation Funds) Taxation Act 1987

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Tax Agent Services Act 2009

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Taxation Administration Act 1953

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Taxation (Interest on Overpayments and Early Payments) Act 1983.

177. Amendments to a particular Act may be contained in both Part 1 (Main amendments) and Part 2 (Bulk amendments) of the Schedule.

178. Schedule 4 of the Consequential Bill (Amendments relating to security matters) contains consequential amendments to the Foreign Acquisitions and Takeovers Act 1975.

PART 1 - MAIN AMENDMENTS

General terminology changes

179. A range of items in this Schedule make simple terminology changes, such as repealing outdated references to the Administrative Appeals Tribunal, the AAT and the Administrative Appeals Tribunal Act 1975 and replacing them with references to the Administrative Review Tribunal, the ART and the Administrative Review Tribunal Act 2024. These amendments ensure that the Tribunal has jurisdiction to review decisions that are reviewable by the AAT, and that the provisions under those laws continue to operate in substantively the same way for the Tribunal.

Australian Charities and Not-for-profits Commission Act 2012

Items 1, 2 and 3: Subsection 160-10(7), paragraph 160-25(a) and Division 165 (heading)

Terminology changes

180. These items make terminology changes. See explanation of general terminology changes above.

Item 4: Sections 165-5 to 165-45

Special rules affecting operation of standard ART Bill provisions for charity context

181. This item includes amendments that retain special provisions that are fundamental to the operation of Tribunal review for charity matters, including provisions that disapply – or apply instead of – provisions of the ART Bill. These provisions ensure the workability of the charity framework. The key special rules are outlined above in the outline of this Schedule.

182. Some amendments remove special procedures for charity matters. In these cases, the standard provisions in the ART Bill will apply.

183. Amendments are made to ensure that the new guidance and appeals panel framework operates consistently with the broader charity framework.

184. This is achieved by repealing sections 165-5 to 165-45 of the ACNC Act and substituting new provisions, as explained in detail below.

Section 165-5 ART Act applies subject to this Division

185. Generally, this provision has been amended to reflect updated terminology and modern drafting practices. This ensures that the provision operates in substantively the same way in relation to the Tribunal. The provision provides that the ART Bill applies for certain decisions and applications subject to Division 165 of the ACNC Act (which contains key provisions relating to the procedure on review that disapply, or apply instead of, ART Bill provisions).

Ensuring majority of special rules for charity matters apply for proceedings of the guidance and appeals panel

186. In addition, these amendments clarify that generally, the relevant provisions in the ACNC Act apply for proceedings of the guidance and appeals panel in the same way as they do for other proceedings of the Tribunal.

Special rules for charity matters that apply differently where a Tribunal decision is referred to the guidance and appeals panel

187. However, some special procedures for applications for review of charity decisions do not apply to guidance and appeals panel proceedings.

188. Specifically, the following provisions do not apply:

•

section 165-15 of the ACNC Act (when and how to apply to the ART), as amended by this Schedule

•

subsections 165-25(1) and (2) of the ACNC Act (giving documents to the ART), as amended by this Schedule

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subsections 165-10(1), (2) and (3) of the ACNC Act (special rules for objection decisions or extension of time refusal decisions), as amended or inserted by this Schedule.

189. The provisions in section 165-15 of the ACNC Act which relate to when and how to apply to the Tribunal for review of a decision are not needed for Tribunal decisions referred to the guidance and appeals panel. A Tribunal decision is referred to the guidance and appeals panel through the President making a referral after application by a party to the proceeding (clauses 123 and 128 of the ART Bill). Clauses 124 and 125 of the ART Bill, which provide general rules about when and how to apply for referral of a Tribunal decision to the guidance and appeals panel, will apply to these proceedings.

190. The provisions in subsections 165-25(1) and (2) of the ACNC Act which relate to initial lodgement of documents with the Tribunal are not needed for Tribunal decisions referred to the guidance and appeals panel, as the Tribunal already has all the documents from the consideration of the matter when it was initially lodged. This is provided for by clause 131 of the ART Bill, which allows the Tribunal to have regard to documents lodged in the earlier proceeding for a proceeding of the guidance and appeals panel.

191. Subsection 165-10(1) of the ACNC Act relates to the special rules for who can apply and when to apply to the Tribunal for a review of a charity decision. Clauses 123 and 125 of the ART Bill, which provide general rules for who can apply and when to apply to refer a Tribunal decision to the guidance and appeals 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 refer a Tribunal decision to the guidance and appeals panel. These are not needed for matters already referred to the guidance and appeals panel.

Section 165-10 Special rules for objection decisions or extension of time refusal decisions

193. These amendments update legislative references to provisions of the AAT Act, replacing these with references to the equivalent provisions under the ART Bill. This ensures that the provision continues to disapply provisions about who can apply to the Tribunal, the operation and implementation of a decision that is subject to review and the operation and implementation of a decision that is subject to appeal for certain decisions under the ACNC Act.

Subsection 165-10(1): Who can apply for review

194. Clause 17 of the ART Bill provides that anyone whose interests are affected by a decision may apply to the Tribunal for review. Subsection 165-10(1) disapplies this for objection decisions and extension of time decisions. Disapplying this provision ensures that only the entity who received the decision can initiate Tribunal review, which is necessary for the workability of the framework in the charity context for a number of reasons.

195. Entities registered as charities receive tax benefits and it is a principle of our tax system that disputes by persons against tax decisions are matters solely between the person and the decision-maker. It also ensures donors and members of charities cannot apply for review on the basis that their interests are affected by a decision. Such persons who are indirectly affected by decisions may also not have access to private information considered in objection decisions.

Subsection 165-10(1): When to apply for review

196. Clause 18 of the ART Bill provides that the rules may provide the time limit for an application to the Tribunal, but that this cannot be less than 28 days after the day the decision is made. Subsection 165-10(1) disapplies this for objection decisions and extension of time decisions. This provides clarity on the interaction between amended section 165-15 of the ACNC Act (explained further below) and the general rule for when to apply for review under the ART Bill.

Subsections 165-10(2) and (3): Special rules affecting operation of standard provisions in ART Bill about when to apply to refer Tribunal decision to the guidance and appeals panel, to support certainty for the finality of charity decisions

197. This amendment adjusts the operation of clause 125 of the ART Bill which allows the President to, at any point in time, extend the period for applying for a referral to the guidance and appeals panel beyond the standard 28-day period (from the date the Tribunal provides a statement of reasons for the decision) that otherwise applies. Instead, this amendment provides the President may only extend the period for making such an application within that 28-day period. Further, if the President allows a longer period than the standard 28 days, then the President must notify the Commissioner of the ACNC as soon as practicable after providing that extension of time.

198. Clause 126 of the ART Bill requires the President to give notice of their decision to refer the Tribunal decision to the guidance and appeals panel or refuse the guidance and appeals panel referral application to both the applicant and the decision-maker.

199. Combined with the amendments made by this item, this gives the Commissioner of the ACNC certainty about when a decision becomes final and when appropriate action to implement a Tribunal decision can begin. See explanation of amendments inserting new section 165-35 of the ACNC Act (which replaces former section 165-45) below regarding the test for when charity decisions become final, the importance of certainty for this test, and the Commissioner of the ACNC's obligations regarding implementing final decisions.

Subsection 165-10(4): Operation and implementation of a decision that is subject to review

200. Clause 32 of the ART Bill provides that a decision that is subject to review by the Tribunal continues to operate, unless the Tribunal makes an order staying or otherwise affecting the operation or implementation of the decision, to ensure the effectiveness of the review.

201. This standard provision is disapplied in the charity context partly because a more specific rule tailored to the charity context is already provided under the ACNC Act. Section 165-50 of the ACNC Act provides that the fact that a review is pending does not in the meantime interfere with, or affect, the administrative decision and any tax, additional tax or other amount may be recovered as if no review were pending.

202. In addition, it is necessary to disapply the provisions allowing the Tribunal to make orders staying or otherwise affecting the operation or implementation of the decision, in order to provide certainty for the sector.

203. For example, the Commissioner of the ACNC's decisions have flow-on implications for the work of other government departments and agencies. Given these linkages, providing the Tribunal with the authority to change objection decisions made by the Commissioner of the ACNC without a full review would introduce administrative costs for these other departments and agencies who would have to change tax assessments, the issuance of grants or similar decisions on multiple occasions.

Subsection 165-10(5): Tribunal decision continues to operate unless Tribunal orders otherwise – rules disapplied to ensure guidance and appeals panel framework consistent with charity framework

204. The amendments disapply clause 127 of the ART Bill relating to the status of a first Tribunal decision, where there is a subsequent referral to the guidance and appeals panel for the Tribunal to consider the decision again.

205. Clause 127 of the ART Bill provides that a referral to the guidance and appeals panel does not affect the operation of the first Tribunal decision or prevent the taking of action to implement that Tribunal decision.

206. This is disapplied for charity matters because it is contrary to the intention underpinning new section 165-35 of the ACNC Act, which requires action to implement a Tribunal decision only once it has become final. New section 165-35 of the ACNC Act (which replaces former section 165-45) ensures that the Commissioner of the ACNC is required to implement a Tribunal decision within 60 days after the decision becomes final.

207. A decision is not considered final until the period for lodging a court appeal has been exhausted. New section 165-35 of the ACNC Act (which replaces former section 165-45) also ensures that a decision will not be considered final until the period for applying for a guidance and appeals panel referral has been exhausted, and any guidance and appeals panel review of the Tribunal has also been finalised. For further information, see explanation of amendments inserting new section 165-35 of the ACNC Act (which replaces former section 165-45) below.

208. Clause 127 of the ART Bill provides that the Tribunal may stay the operation or implementation of the first Tribunal decision in order to secure the effectiveness of a guidance and appeals panel referral application.

209. This is disapplied for charity matters because it is unnecessary. In the charity context, the Commissioner of the ACNC is not required to implement the first Tribunal decision until the decision or dispute is finalised (making a stay of that Tribunal decision unnecessary). For further information, see explanation of new section 165-35 of the ACNC Act (which replaces former section 165-45) as described briefly above and in further detail below.

Subsection 165-10(6): Operation and implementation of a decision that is subject to appeal

210. Clause 178 of the ART Bill provides that a decision of the Tribunal that has been appealed under the ART Bill to the FCA or the FCFCOA continues to operate. Clause 178 also ensures the Court may make an order staying or otherwise affecting the operation or implementation of either the Tribunal decision or the original decision in order to ensure the effectiveness of the hearing.

211. Disapplying this provision in the charity context is necessary to provide certainty for the sector, as further explained above in relation to the rules about the operation and implementation of a decision that is subject to review.

Section 165-15 When and how to apply to the ART

When to apply

212. The amendments ensure that despite the general rule for when to apply for review provided for under clause 18 of the ART Bill, an application for review of a decision must be made within 60 days after the person has been served with notice of the decision. This maintains the position under the existing law, which ensures consistency with the time period for lodging objections with the Commissioner of the ACNC, consistency with the timeframe for filing an appeal to the FCA, as well as with the timeframes that apply for tax matters.

213. See explanation of section 14ZZC of the TAA for further information.

How to apply

214. The amendments also ensure that despite subclause 34(1) of the ART Bill, which relates to the manner in which applications are to be made, consistent with the existing law, applications in the charity context must be in writing and set out a statement of reasons for the application.

215. For charity matters, it is always appropriate for applications to be made in writing and set out a statement of reasons for the application, including the grounds on which review is sought. Under section 165-40 of the ACNC Act, the grounds of review are limited to the grounds stated in the original objection by the applicant. The subject matter of such decisions concern the affairs of the applicant, who is best placed to know the details of their own affairs.

216. Although a failure to include a statement of reasons does not affect the validity of the application, ensuring an application for review includes these minimum content requirements ensures the Tribunal and the Commissioner of the ACNC are put on notice about the scope of the review. This includes being put on notice about information the Commissioner of the ACNC needs in order to meet their initial lodgement obligations, as set out in section 165-25 of the ACNC Act (as amended by this Schedule).

217. It is expected that where an application does not include a statement of reasons for the application in the first instance, such a statement will need to be provided before the Tribunal notifies the decision-maker of the application for review of the decision for the purposes of subsection 165-25(2) (as amended by this Schedule), noting that the Commissioner of the ACNC has 28 days to lodge initial documents with the Tribunal starting from the day the Tribunal notifies them of the application.

218. Clause 34 of the ART Bill provides that the manner of applying and required content of the application will be set out in practice directions. An application for review in the charity context must still comply with any such requirements set out in practice directions, to the extent that the requirements are consistent with the application being in writing and setting out a statement of reasons for the application.

Prescribed fees

219. Consistent with the standard provisions in the ART Bill, a valid application does not require the application to be accompanied by the prescribed application fee. Under the ART Bill, a fee may be payable in relation to the application and an application may be dismissed if the fee is not paid within a particular time. Prior to these amendments, a valid application for charity and other matters required the application to be accompanied by the prescribed application fee.

Section 165-20 Parties to proceedings for review

220. The amendments ensure that, despite paragraph 22(1)(c) of the ART Bill, the Tribunal may only join another party to the proceedings if the Tribunal is satisfied that the applicant gives their consent.

221. This retains the position under the existing law which maintains the principle of confidentiality in taxation hearings.

Section 165-25 Giving documents to the ART

Subsections 165-25(1), (2), (3) and (4): Initial obligation to lodge documents and ongoing obligation to lodge additional documents

222. The amendments replace clause 23 of the ART Bill, which is about the decision-maker giving reasons and documents to the Tribunal, with rules tailored for the charity context.

223. This includes providing a list of certain documents that are required for initial lodgement, which utilises language from the existing law which is well understood and consistent with language used in the ACNC Act.

224. Clause 23 of the ART Bill requires a decision-maker to give documents that are in their possession and control that are considered to be relevant to the review. In contrast, these amendments ensure that in the charity context, the decision-maker is required to give documents that are in their possession and control that are considered to be necessary to the review of the relevant decision and to give a list of such documents. This aligns with the lodgement requirements that apply for taxation matters, which facilitate the efficient conduct of proceedings, avoiding large volumes of documents being lodged with the Tribunal that may never be referred to or are otherwise unnecessary.

225. This item also replaces clause 25 of the ART Bill, which provides an ongoing obligation on a decision-maker to give additional documents to the Tribunal that are relevant to the review that come into their possession or control at any time during the proceeding. Instead, decision-makers must give the Tribunal additional documents that are necessary to the review that come into their possession or control. This ensures the requirements for ongoing lodgement aligns with the special rules for initial lodgement of documents with the Tribunal.

226. Clause 26 of the ART Bill provides the Tribunal with the power to obtain any additional documents it requires in particular cases. Subsections 165-25(5) and (6) of the ACNC Act facilitates the Tribunal's exercise of such powers (see below).

Subsections 165-25(5) and (6): Requesting list of relevant documents

227. The amendments insert subsection 165-25(5) of the ACNC Act to ensure that consistent with the existing law, the Tribunal can require a decision-maker to lodge with the Tribunal a copy of a list of documents in their possession or control considered to be relevant to the review. The list of relevant documents would enable the Tribunal to consider whether further documents should be lodged for charity matters.

228. Subsection 165-25(6) of the ACNC Act clarifies that the Tribunal's power to request the list of relevant documents is in addition to the Tribunal's powers provided for under the ART Bill to require additional documents be lodged.

Requesting documents orally in a conference

229. Section 165-25 of the ACNC Act provides the AAT with the power to request documents orally at a conference, as subsection 37(2) of the AAT Act only allows the AAT to request documents in writing.

230. This is not necessary for the ART Bill, as the Tribunal will have the ability to request documents either orally or by written notice under clause 26 of the ART Bill.

Subsection 165-25(7): Deeming rules

231. The amendments insert subsection 165-25(7) of the ACNC Act which provides that for the purposes of the ART Bill, the requirement to give documents in section 165-25 is taken to be the requirement to give documents under particular provisions in the ART Bill. Similarly, documents given under section 165-25 are taken to be given under particular provisions in the ART Bill.

232. The deeming rules clarify that satisfying the requirements about giving documents to the Tribunal in section 165-25 of the ACNC Act will satisfy the requirements in the ART Bill.

233. The deeming rules also ensure that various provisions under the ART Bill, which will apply if a decision-maker is required to give documents under particular provisions of the ART Bill or if a decision-maker has given documents under particular provisions of the ART Bill, operate as intended.

234. Some examples are:

•

Under the ART Bill, if a decision-maker is required to give the Tribunal a statement or copy of a document under particular provisions of that Bill, then the decision-maker is also required to give a copy of the statement or document to each other party to the proceeding. The deeming rules ensure that if a decision-maker is instead subject to requirements to give statements or documents under section 165-25 of the ACNC Act, then the decision-maker is still also required to give copies to other parties to the proceeding.

•

Under the ART Bill, if a decision-maker is required to give the Tribunal a statement or copy of a document under particular provisions of the ART Bill, the Tribunal has flexibility to adjust the requirements, such as by changing the period for compliance, adjusting the number of copies required, or exempting the decision-maker from the requirements. The deeming rules ensure that if a decision-maker is instead subject to requirements to give statements or documents under section 165-25 of the ACNC Act, then the Tribunal still has the same flexibility to adjust the requirements.

•

Under the ART Bill, if a decision-maker is required to give the Tribunal or a party to the proceeding a statement or copy of a document under particular provisions of the ART Bill but the Tribunal is resolving whether to restrict publication or disclosure 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 instead subject to requirements to give statements or documents under section 165-25 of the ACNC Act, then this potential exemption from providing documents operates in the same way.

235. The amendments insert a note to subsection 165-25(7) of the ACNC Act, which also explains the effect of the deeming rules in subsection 165-25(7).

Repeal of section 165-30 Modification of section 38 of the AAT Act

236. These amendments repeal section 165-30 of the ACNC Act, which ensures that the AAT could obtain additional statements from a person who lodged a statement giving the reasons for a decision with the Tribunal. The provision is no longer required as this outcome will be achieved by subsection 165-25(7) of the ACNC Act, as introduced by this Schedule.

237. Subsection 165-25(7) of the ACNC Act, as introduced by this Schedule, ensures that for the purposes of the ART Bill, the requirement to give a statement giving the reasons for the decision under the ACNC Act is taken to be the requirement to give a statement of reasons for the decision to the Tribunal under paragraph 23(a) of the ART Bill.

238. Subsection 165-25(7) of the ACNC Act applies more broadly for the purposes of the ART Bill than section 165-30. Section 165-30 achieves the same outcome (but only in relation to the operation of section 38 of the AAT Act (power of Tribunal to obtain additional documents). See also explanation of deeming rules in subsection 165-25(7) of the ACNC Act above.

Repeal of section 165-35 Modification of section 43 of the AAT Act

239. These amendments repeal section 165-35 of the ACNC Act, which clarifies that the AAT could still publish reasons for a decision, where hearings for the proceeding were held privately.

240. This provision is no longer necessary, as this clarification is instead made in the ART Bill (see note to subclause 113(4) of the ART Bill).

Section 165-30 Grounds of objection and burden of proof (former section 165-40)

241. The amendments update terminology in section 165-40 to ensure the provision operates in the same way for the Tribunal, and renumber this provision as section 165-30.

242. The provision generally limits the grounds of the application to those covered in the original objection (unless the Tribunal orders otherwise). This ensures that the Tribunal has sufficient knowledge and information to handle the review and that only relevant facts are considered to promote administrative efficiency by limiting the scope of appeals to directly relevant issues.

243. The law in relation to the burden of proof for charity matters has also not been altered, which is consistent with the settings for taxation matters.

Section 165-35 Implementation of ART decisions (former section 165-45)

244. Generally, the amendments update terminology in section 165-45 to ensure the provision continues to operate in substantively the same way for the Tribunal, and renumber this provision as section 165-35. The provision ensures that the Commissioner of the ACNC is required to implement or otherwise take action to give effect to the Tribunal's decision within 60 days of the decision becoming final.

245. The amendments also make changes to the test for when charity decisions become final to account for a referral to the guidance and appeals panel.

Accounting for guidance and appeals panel referral in test for when charity decisions become final

246. The amendments inserting new section 165-35 ensure that a charity decision will not be considered final until the period for applying for a guidance and appeals panel referral has been exhausted, including any additional period provided for such referral applications by the President. This ensures that if the President extends the period for making an application for a referral beyond the standard 28-day period that applies, then the decision will not be considered final. The President's discretion to extend this period is subject to special provisions affecting its operation, as explained for the amendments to section 165-10 of the ACNC Act above.

247. If a decision is referred to the guidance and appeals panel for a second review by the Tribunal, the decision will also not be considered final.

248. Ensuring that the Commissioner of the ACNC is not obliged to take action to give effect to a decision until after it becomes final and having a clear test for when charity decisions become final supports administrative efficiency. As further explained above in relation to subsection 165-10(1) of the ACNC Act (about the operation and implementation of a decision that is subject to review), charity decisions have strong linkages with other government decisions and implementing a decision that has not been finalised would introduce administrative costs for other departments and agencies who would potentially have to change tax assessments, the issuance of grants or similar decisions on multiple occasions.

Item 5: Section 165-55

Section 165-55 Reviews may be combined

249. These amendments clarify that an entity can group related decisions together when applying to the Tribunal for review and the Tribunal may deal with those together. The decisions must be directly related and it must be useful from a procedural and efficiency perspective to consider decisions jointly.

250. This clarification is particularly important in the charity context given the linkages between a decision of the Commissioner of the ACNC to register an entity and the fact that ACNC registration will be a necessary precondition for entities to access other forms of Commonwealth government support.

251. Having joint actions is intended to promote cost savings and administrative efficiency for the not-for-profit sector, as well as ensuring that the totality of issues are considered by the Tribunal when reviewing and assessing decisions taken by the Commissioner of the ACNC, and related decisions made in other Commonwealth government agencies and departments.

Items 6 and 7: Section 300-5 (definitions of AAT Act and AAT extension application )

Terminology changes

252. These items make terminology changes. See explanation of general terminology changes above.

253. Item 7 also updates a legislative reference, replacing a reference to subsection 29(7) of the AAT Act with a reference to the equivalent provision in the ART Bill, clause 19.

Australian Securities and Investments Commission Act 2001

Items 8, 9, 10 and 11: Section 244 (heading), subsection 244(1) (definition of decision ), subsection 244(2) and paragraph 244A(2)(b)

Terminology changes

254. These items make terminology changes. See explanation of general terminology changes above.

Items 12 and 13: Subsections 244A(5) and (6)

Notice of reviewable decision and review rights – special rules in the Australian Securities and Investments Commission Act 2001

255. These items update a legislative reference and insert a new subsection to preserve special provisions for giving notice of a decision and a person's review rights under the Australian Securities and Investments Commission Act 2001. The provisions ensure the workability of such notice requirements for these decisions. These items are technical amendments and are needed to ensure these provisions continue to operate in substantively the same way in relation to the Tribunal.

256. See below at items 19 and 20 for further information relating to analogous provisions in the Corporations Act.

Competition and Consumer Act 2010

Items 14 and 15: Paragraph 10.85(1)(b) and subsection 10.85(2)

Notice of review rights and ability to request statement of reasons

257. These items update legislative references, replacing the references to section 28 and subsection 28(4) of the AAT Act in paragraph 10.85(1)(b) and subsection 10.85(2) of the Competition and Consumer Act 2010 with references to the equivalent provisions in the ART Bill, clause 268 and subclause 269(7) respectively. Section 28 of the AAT Act, and the equivalent provision in the ART Bill, clause 268, allows a person whose interests are affected by a decision to request a statement of reasons from the decision-maker. Subsection 28(4) of the AAT Act, and the equivalent provision in the ART Bill, subclause 269(7), provides that a decision-maker may refuse the request if the person has already been given reasons. Section 10.85 of the Competition and Consumer Act 2010 requires that notice of certain decisions under that Act include notice that a person may make a request for a statement of reasons under section 28 of the AAT Act, unless the exception in subsection 28(4) applies.

258. These items are technical amendments and are needed to ensure these provisions continue to operate in substantively the same way in relation to the Tribunal, so that a decision-maker must notify relevant persons that they may request a statement of reasons under the ART Bill unless the person has already been given such a statement.

Corporations Act 2001

Item 16: Subsection 798G(2)

Enabling certain legislative instruments to provide for applications to the ART and make changes to standard provisions

259. This item inserts new subsection (2), which provides that a legislative instrument made under section 798G of the Corporations Act (about market integrity) may:

•

provide for applications to be made to the Tribunal for review of decisions made under the rules, and

•

contain provisions that apply in addition to, instead of or contrary to the ART Bill.

260. Various legislative instruments made by ASIC under section 798G of the Corporations Act apply instead of or contrary to provisions of the AAT Act. For example, section 27 of the AAT Act (and its equivalent, clause 17 of the ART Bill), provides that a person whose interests are affected by a reviewable decision may apply to the Tribunal for review of the decision. Certain ASIC instruments limit who may apply for review to the Tribunal to entities directly affected by a reviewable decision, such as market participants who applied for a decision or in respect of which the decision was made.

261. Similarly, such ASIC instruments also limit who the decision-maker must give notice of a decision and review rights to, such that only entities directly affected by a reviewable decision should be notified. Section 27A of the AAT Act (and its equivalent, clause 266 of the ART Bill) would otherwise require ASIC to take reasonable steps to give notice of a decision to any person whose interests are affected by the decision.

262. These instruments contain references to the AAT and AAT Act and will therefore require consequential amendments. This item ensures that ASIC has the ability to include similar rules when remaking or amending such legislative instruments.

Item 17: Subsection 1297(1)

Updating legislative references

263. This item updates legislative references, replacing references to sections 41 and 44A of the AAT Act in section 1297 of the Corporations Act with references to the equivalent provisions in the ART Bill, clauses 32 and 178. Section 1297 of the Corporations Act provides when a decision of the Companies Auditors Disciplinary Board to cancel or suspend a person's registration as an auditor comes into effect. This is subject to sections 41 and 44A of the AAT Act. Section 41 of the AAT Act provides the AAT with the power to make an order staying or otherwise affecting the operation of a decision (in this context, the board decision) to ensure the effectiveness of the review. Section 44A of the AAT Act gives the FCA similar power to make an order staying or otherwise affecting the operation or implementation of a reviewable decision (in this context, the original board decision), to ensure the effectiveness of an appeal. Clauses 32 and 178 of the ART Bill respectively retain the effect of these provisions for the Tribunal.

264. This item is a technical amendment and is needed to ensure that subsection 1297(1) of the Corporations Act continues to operate in substantively the same way in relation to the Tribunal, so that the time when decisions of the Companies Auditors Disciplinary Board come into effect will continue to be subject to orders of the Tribunal or the FCA.

Item 18: Subsection 1299K(1)

Updating legislative references

265. This item makes analogous amendments to the amendments made by item 17 discussed above, replacing references to sections 41 and 44A of the AAT Act in section 1299K of the Corporations Act with references to the equivalent provisions in the ART Bill, clauses 32 and 178. Section 1299K of the Corporations Act provides when a decision of ASIC to cancel or suspend a company's registration as an authorised audit company comes into effect.

266. This item is a technical amendment and is needed to ensure that subsection 1299K(1) continues to operate in substantively the same way in relation to the Tribunal, so that the time when such decisions of ASIC come into effect will continue to be subject to orders of the Tribunal or the FCA.

Items 19 and 20: Subsections 1317D(5) and (6)

Notice of reviewable decision and review rights – special rules in Corporations Act

267. These items update a legislative reference and insert a new subsection to preserve special provisions for giving notice of a decision and a person's review rights under the Corporations Act. The provisions ensure the workability of such notice requirements for decisions under the Corporations Act. These items are technical amendments and are needed to ensure that the provisions continue to operate in substantively the same way in relation to the Tribunal.

268. Section 1317D of the Corporations Act ensures that a decision-maker is not required to give notice to a person or class of persons affected by a decision if the decision-maker determines that, having regard to the cost of giving the notice and the way in which the person or class of persons interests are affected, notice is not warranted. It is thus envisaged that the decision-maker will give the requisite notice to persons most directly affected by a decision, but will not be required to give notice to persons who are only remotely affected, if the cost of giving notice to 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, including the relevant company and its directors, shareholders and creditors. The difficulty in identifying affected persons is magnified by both the broad array of decisions that are subject to review and the high volume of decisions made each year.

270. To limit any possible detriment to a person who does not receive notice of a decision and who, as a result, is out of time in making an application for review of the decision, subsection 1317D(5) provides that the absence of notice constitutes special circumstances for the purposes of subsection 29(6) of the AAT Act. Subsection 29(6) allows the AAT to entertain an application for review that is made out of time, if it is of the opinion that there are special circumstances that justify it doing so. Item 19 replaces the reference to subsection 29(6) of the AAT Act with a reference to the equivalent provision in the ART Bill, subclause 20(2).

Relocating exception to standard provisions from AAT Act to Corporations Act

271. Subsection 27A(1) of the AAT Act requires a person who makes a reviewable decision to take reasonable steps to give any person whose interests are affected by the decision notice in writing or otherwise of the making of the decision and the right of the person to have the decision reviewed.

272. There is an exception to this general principle in paragraph 27A(2)(d) of the AAT Act for a decision under the Corporations Act that is reviewable by the AAT (which is supplemented by the special rules in the Corporations Act, described above). The ART Bill does not contain an equivalent exception, as these rules will be included in the Corporations Act. The insertion of new subsection (6) by item 20 clarifies that section 1317D of the Corporations Act, rather than clause 266 of the ART Bill, applies to the making of a decision to which section 1317B of the Corporations Act applies.

Items 21, 22 and 23: Section 1621 (heading) and subsections 1621(1) and (4)

Ensuring transitional arrangements apply for ART

273. These items insert references to the Tribunal alongside existing references to the AAT in the heading of section 1621 and subsections 1621(1) and (4) of the Corporations Act, extending the operation of these provisions to the Tribunal. This ensures that transitional arrangements associated with amendments made by the Insolvency Law Reform Act 2016 to the Corporations Act apply to the Tribunal and continue to apply, where applicable, for the AAT.

Excise Act 1901

Items 24 and 25: Subsections 165A(13) and (14)

Terminology changes

274. These items make terminology changes. See explanation of general terminology changes above.

Item 26: Subsection 165A(15)

Transitional rule to ensure correct period disregarded for purposes of Excise Act 1901

275. This item inserts new subsection (15), which ensures that where unresolved matters are transferred from the AAT to the Tribunal, subsection 165A(14) of the Excise Act 1901 operates to account for the entire period when proceedings are on foot. That is, for the purposes of subsection 165A(14) of the Excise Act 1901, the period to be disregarded is the period starting when the application was made to the AAT and ending with the final determination by the Tribunal (or by a court on appeal from the Tribunal).

276. Subsection 165A(14) of the Excise Act 1901 ensures that any period when relevant amounts are being disputed, either in the Tribunal or in the courts, is to be disregarded when calculating whether 60 days has passed since a producer has received notification that they either overpaid or underpaid a duty owed to the Commonwealth. Under the Excise Act 1901, the amount owed (either by the producer or the Commonwealth) becomes payable, and interest begins accruing, after this 60-day period.

Fringe Benefits Tax Assessment Act 1986

Items 27 and 28: Subsection 123B(5) and subsection 136(1) (definition of Tribunal )

Repealing provisions no longer necessary

277. These items repeal all provisions relating to the AAT in the Fringe Benefits Tax Assessment Act 1986.

278. Subsection 123B(5) of the Fringe Benefits Tax Assessment Act 1986 provides transitional rules relating to the introduction of section 123B of the Fringe Benefits Tax Assessment Act 1986 (which commenced on 25 May 1992 and provided the Commissioner of Taxation with discretion to dispense with substantiation requirements in certain circumstances). The transitional rule is spent and the subsection is 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: Subsection 202F(2)

Updating legislative references

280. This item updates a legislative reference, replacing the reference to subsection 41(2) of the AAT Act in subsection 202F(2) of the Income Tax Assessment Act 1936 with a reference to the equivalent provision in the ART Bill, clause 32. Subsection 41(2) of the AAT Act, and the equivalent clause 32 of the ART Bill, provides the Tribunal's power to stay or otherwise affect the operation or implementation of a decision.

281. Subsection 202F(2) of the Income Tax Assessment Act 1936 clarifies that, where an application has been made to the Tribunal for review of a decision under paragraph 202F(1)(a), the types of orders that can be made by the Tribunal under subsection 41(2) of the AAT Act include an order to issue a tax file number to the applicant.

282. This item is a technical amendment and is needed to ensure that subsection 202F(2) of the Income Tax Assessment Act 1936 continues to operate in substantively the same way in relation to the Tribunal.

Item 30: Subsection 202FA(1)

Notice of review rights and ability to request statement of reasons

283. This item updates a legislative reference, replacing the reference to section 28 of the AAT Act in subsection 202FA(1) of the Income Tax Assessment Act 1936 with a reference generally to the ART Bill. Section 28 of the AAT Act, and the equivalent provision in the ART Bill, clause 268, allows a person whose interests are affected by a decision to request a statement of reasons from the decision-maker.

284. Subsection 202FA(1) of the Income Tax Assessment Act 1936 requires that notice of certain decisions under that Act include notice that a person may make a request for a statement of reasons under section 28 of the AAT Act.

285. This item is a technical amendment and is needed to ensure that subsection 202FA(1) of the Income Tax Assessment Act 1936 continues to operate in substantively the same way in relation to the Tribunal, so that a decision-maker must notify relevant persons of their ability to apply to the Tribunal for review of a decision and request a statement of reasons under the ART Bill.

Income Tax Assessment Act 1997

Items 31, 34, 35: Subsections 34-33(5), 376-250(4), 378-85(4), and item 64 of Part 2 (Bulk amendments - Amendments of listed provisions): Table items relating to subsections 34-33(4), 376-250(3) and 378-85(3) of the Income Tax Assessment Act 1997

Notice of review rights and ability to request statement of reasons

286. These items update legislative references, replacing the references to section 28 of the AAT Act in subsections 34-33(5), 376-250(4) and 378-85(4) of the Income Tax Assessment Act 1997 with references to the equivalent provision in the ART Bill, clause 268. Section 28 of the AAT Act, and the equivalent provision in the ART Bill, clause 268, allows a person whose interests are affected by a decision to request a statement of reasons from the decision-maker. Subsections 34-33(5), 376-250(4) and 378-85(4) of the Income Tax Assessment Act 1997 require that notice of certain decisions under that Act include notice that a person may make a request for a statement of reasons under section 28 of the AAT Act.

287. These items are technical amendments and are needed to ensure that subsections 34-33(5), 376-250(4) and 378-85(4) of the Income Tax Assessment Act 1997 continue to operate in substantively the same way in relation to the Tribunal, so that decision-maker must notify relevant persons that they may request a statement of reasons under the ART Bill.

Item 32: Paragraph 355-710(3)(b)

Terminology change

288. This item makes a terminology change. See explanation of general terminology changes above.

Item 33: Subsection 355-710(4)

Ensuring assessments can be amended to reflect historic AAT decisions

289. This item inserts new subsection (4), which provides that paragraph 355-710(3)(b) applies as if a reference to a decision under the ART Bill to vary or set aside certain decisions includes a reference to a decision under the AAT Act. This means that the Commissioner of Taxation may amend an assessment at any time, where the assessment is affected by a decision of the AAT.

290. This amendment ensures subsection 355-710(3) of the Income Tax Assessment Act 1997 continues to apply for AAT decisions made before the transition to the Tribunal. Other amendments in this Schedule ensure that the Commissioner is able to amend assessments that are affected by a decision of the Tribunal.

Items 34 and 35: Subsections 376-250(4) and 378-85(4)

291. See explanation of these items above.

Items 36 and 37: Subsection 995-1(1) (definition of AAT )

Updating definition

292. These items amend subsection 995-1(1) of the Income Tax Assessment Act 1997 to replace the definition of AAT with a definition of ART.

National Consumer Credit Protection Act 2009

Items 38 and 39: Subsections 327(1) and (1A)

Terminology changes

293. These items make terminology changes. See explanation of general terminology changes above.

Item 40: Subsection 327(2)

Repealing provisions no longer necessary

294. This item repeals subsection 327(2) of the National Consumer Credit Protection Act 2009, as the provision duplicates the effect of an exception under the ART Bill and is unnecessary.

295. Subsection 327(2) provides that section 27A of the AAT Act, which requires a decision-maker to take reasonable steps to give persons whose interest are affected by a decision notice of the decision and their right to have the decision reviewed, does not apply. Under paragraph 266(6)(a) of the ART Bill, a decision-maker is not required to give notice if notice is required under another Act or instrument. Subsection 328(2) of the National Consumer Credit Protection Act 2009 provides for notice of a reviewable decision and review rights, which enlivens this exception.

Payment Times Reporting Act 2020

Item 41: Subsection 53(3) (note)

Updating legislative references

296. This item updates a legislative reference, replacing the reference to section 27A of the AAT Act in the note to subsection 53(3) of the Payment Times Reporting Act 2020 with a reference to the equivalent provision in the ART Bill, clause 266. Section 27A requires a decision-maker to take reasonable steps to give any person whose interests are affected by the decision notice of the decision and the right of the person to have the decision reviewed. Clause 266 of the ART Bill prescribes the same.

297. This item is a technical amendment and is needed to ensure the note in subsection 53(3) remains accurate.

Petroleum Excise (Prices) Act 1987

Item 42: Subsections 12(7) and (8)

Period for making applications for deemed decisions

298. This item amends subsection 12(7) of the Petroleum Excise (Prices) Act 1987 to provide a time period for making an application for review for a decision that is taken to be made because a decision-maker has not made an active decision within a specified time period (a 'deemed decision'). The subsection specifies that the time period for making an application to the Tribunal for review of a deemed decision is 28 days beginning on the day on which the decision is taken to be confirmed. The amendment ensures that subsection 12(7) continues to operate in substantively the same way for the Tribunal.

299. This item also inserts new subsection (8), which provides that the timeframe in subsection (7) applies regardless of clause 18 of the ART Bill. Clause 18 of the ART Bill provides that the general timeframe for making an application for review under the ART Bill will be prescribed by rules.

Retirement Savings Accounts Act 1997

Item 43: Subsections 189(8), (9) and (10)

Subsection 189(8): Period for making applications for deemed decisions

300. This item amends subsection 189(8) of the Retirement Savings Accounts Act 1997 to provide a time period for making an application for review for a decision that is taken to be made because a decision-maker has not made an active decision within a specified time period (a 'deemed decision'). The subsection specifies that the time period for making an application to the Tribunal for review of a deemed decision is 28 days beginning on the day on which the decision is taken to be confirmed.

301. The subsection also stipulates that the timeframes applies regardless of clause 18 of the ART Bill. Clause 18 of the ART Bill provides that the general timeframe for making an application for review under the ART Bill will be prescribed by rules.

302. The amendment ensures that subsection 189(8) continues to operate in substantively the same way for the Tribunal.

303. This item also inserts a note which provides that under clause 19 of the ART Bill a person may apply to the Tribunal to extend this timeframe.

Subsection 189(9): Operation of decision despite request for internal review

304. This item updates a legislative reference, replacing a reference to section 41 of the AAT Act in subsection 189(9) of the Retirement Savings Accounts Act 1997 with a reference to the equivalent provision in the ART Bill, clause 32. Section 41 of the AAT Act, and the equivalent clause 32 of the ART Bill, provides the Tribunal's power to stay or otherwise affect the operation or implementation of a decision. Subsection 189(9) provides that a request for internal review is taken to be an application to the Tribunal for review of the decision for the purposes section 41 of the AAT Act.

305. This ensures that a request for internal review does not affect the operation of the decision or prevent the taking of action to implement the decision. It also ensures that at an early stage (at the stage where they have initiated internal review of the decision), a person can apply to the Tribunal for an order staying or otherwise affecting the operation or implementation of the decision.

306. This item is a technical amendment and is needed to ensure that subsection 189(9) of the Retirement Savings Accounts Act 1997 operates in substantively the same way in relation to the Tribunal.

Subsection 189(10): Clarifying that only the Tribunal may make such orders

307. This item also inserts new subsection (10) to clarify that only the Tribunal (as opposed to a decision-maker) can make an order under subclause 32(2) of the ART Bill. This brings the provision into line with other analogous legislation in the Treasury portfolio which contain such a clarification, such as section 67 of the Insurance Acquisitions and Takeovers Act 1991.

Small Superannuation Accounts Act 1995

Item 44: Subsection 58(3A)

Transitional rule to ensure certain requests have no effect if made during particular period

308. This item ensures that subsection 58(3) of the Small Superannuation Accounts Act 1995 applies to circumstances when an application to the AAT has not been finalised. Applications made to the AAT which have not been finalised before the commencement of the Tribunal will be transferred to the Tribunal.

309. The intent is that an individual's request, as referred to under section 58 of the Small Superannuation Accounts Act 1995, should have no effect during the period when a proceeding for review in the Tribunal has not been finalised.

Item 45: Section 84

Subsection 84(1): Period for making applications for deemed decisions

310. This item amends subsection 84(1) of the Small Superannuation Accounts Act 1995 to provide a time period for making an application for review of a decision that is taken to be made because a decision-maker has not made an active decision within a specified time period (a 'deemed decision'). The subsection specifies that the time period for making an application to the Tribunal for review of a deemed decision is 28 days beginning on the day on which the decision is taken to be confirmed.

311. This amendment is made despite clause 18 of the ART Bill, which provides that the general timeframe for making an application for review under the ART Bill will be prescribed by rules. The amendment ensures that subsection 84(1) continues to operate in substantively the same way for the Tribunal.

312. This item also inserts a note that a person may apply to the Tribunal under clause 19 of the ART Bill to extend the time period specified by this item.

Subsections 84(2) and (3): Operation of decision despite request for internal review and clarifying that only the Tribunal may make certain orders

313. This item makes analogous amendments to subsections 84(2) and (3) of the Small Superannuation Accounts Act 1995 to those made to subsections 189(9) and (10) of the Retirement Savings Accounts Act 1997 by item 43. See above for explanation of those amendments.

Superannuation Industry (Supervision) Act 1993

Item 46: Subsections 344(9), (10) and (11)

Subsection 344(9): Period for making applications for deemed decisions

314. This item makes analogous amendments to subsection 344(9) of the Superannuation Industry (Supervision) Act 1993 to those made to subsection 84(1) of the Small Superannuation Accounts Act 1995 by item 45. See above for explanation of those amendments.

Subsections 344(10) and (11): Operation of decision despite request for internal review and clarifying that only the Tribunal may make certain orders

315. This item makes analogous amendments to subsection 344(10) of the Superannuation Industry (Supervision) Act 1993 to those made to subsections 189(9) and (10) of the Retirement Savings Accounts Act 1997 by item 43. See above for explanation of those amendments.

Superannuation (Self Managed Superannuation Funds) Taxation Act 1987

Item 47: Subsections 16(7), (8), (9) and (10)

Subsection 16(7): Period for making applications for deemed decisions

316. This item makes analogous amendments to subsection 16(7) of the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 to those made to subsection 84(1) of the Small Superannuation Accounts Act 1995 by item 45. See above for explanation of those amendments.

Subsections 16(8) and (9): Operation of decision despite request for internal review and clarifying that only the Tribunal may make certain orders

317. This item makes analogous amendments to subsection 16(8) of the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 to those made to subsections 189(9) and (10) of the Retirement Savings Accounts Act 1997 by item 43. See above for explanation of those amendments.

Subsection 16(10): Harmonisation of tax hearing rules

318. This item inserts subsection 16(10) of the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 which stipulates that a hearing of a proceeding in relation to a reviewable decision under that Act must be held in private if the applicant requests it. This differs from existing subsection 16(9) of the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 which makes hearings of such proceedings private in all circumstances.

319. This amendment provides consistency with the rules for private hearings that apply for other tax matters, as set out in section 14ZZE of the TAA (which will be retained by amendments set out in this Schedule). This maintains the principle of confidentiality in taxation hearings.

320. Existing subsection 16(9) of the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 also provides the Tribunal with powers to give directions about who may be present at a private hearing and directions about non-publication and non-disclosure in such circumstances. These powers are retained under various provisions in the ART Bill (which are equivalent to section 35 of the AAT Act).

Taxation Administration Act 1953

Items 48 and 49: Section 14ZQ (definitions of AAT, AAT Act and AAT extension application)

Terminology changes

321. These items make terminology changes. See explanation of general terminology changes above.

322. Item 48 also updates a legislative reference, replacing a reference to subsection 29(7) of the AAT Act with a reference to the equivalent provision in the ART Bill, clause 19.

Item 50: Sections 14ZZA to 14ZZM

Special provisions affecting operation of standard ART Bill provisions for tax context

323. This item includes amendments that retain special provisions that are fundamental to the operation of Tribunal review for taxation matters, including provisions that disapply – or apply instead of – provisions of the ART Bill. These provisions ensure the workability of this framework, protect tax revenue collection and uphold longstanding core tax principles and practices.

324. Some amendments remove special procedures for tax matters. In these cases, the standard provisions in the ART Bill will apply.

325. The majority of the special provisions for tax are analogous to those in the ACNC Act for charity matters (as amended by this Schedule). These special rules are outlined above in the outline for this Schedule.

326. The amendments also remove the general exemption from the standard framework for a decision-maker to give reasons for a decision on request, which currently applies for taxation matters. This is consistent with the current administrative practice of the Australian Taxation Office, where reasons are generally already given for decisions in accordance with best practice for administrative decision-making.

327. Amendments are made to ensure that the guidance and appeals panel framework under the ART Bill operates consistently with the broader taxation framework.

328. Item 50 achieves this by repealing sections 14ZZA to 14ZZM of the TAA and substituting new provisions, as explained in detail below.

Section 14ZZA: ART Act applies subject to this Division

329. Generally, this provision has been amended to reflect updated terminology and modern drafting practices. This ensures that the provision operates in substantively the same way in relation to the Tribunal. The provision provides that the ART Bill applies for certain decisions and applications, subject to Division 4 of Part IVC of the TAA (which contains key provisions relating to the procedure on review that disapply, or apply instead of, ART Bill provisions).

Ensuring majority of special provisions for tax apply where a Tribunal decision is referred to the guidance and appeals panel

330. In addition, the amendments clarify that generally, the relevant provisions in the TAA apply for proceedings of the guidance and appeals panel in the same way as they do for other proceedings of the Tribunal.

Special rules for tax matters that apply differently where a Tribunal decision is referred to the guidance and appeals panel

331. However, some special procedures for applications for review of tax decisions do not apply to guidance and appeals panel proceedings.

332. Specifically, the following provisions do not apply:

•

section 14ZZC 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 the ART), as amended by this Schedule

•

subsections 14ZZB(1) to (4) of the TAA (special rules for reviewable objection decisions or extension of time refusal decisions), as amended or inserted by this Schedule.

333. The provisions in section 14ZZC of the TAA which relate to when and how to apply to the Tribunal for review of a decision are not needed for Tribunal decisions referred to the guidance and appeals panel. A Tribunal decision is referred to the guidance and appeals panel through the President making a referral after application by a party to the proceeding (clauses 123 and 128 of the ART Bill). Clauses 124 and 125 of the ART Bill, which provide special general rules about when and how to apply for referral of a Tribunal decision to the guidance and appeals panel, will apply to these proceedings.

334. The provisions in subsections 14ZZF(1) and (2) of the TAA which relate to initial lodgement of documents with the Tribunal are not needed for Tribunal decisions referred to the guidance and appeals panel, as the Tribunal already has all the documents from the consideration of the matter when it was initially lodged. This is provided for by clause 131 of the ART Bill, which allows the Tribunal to have regard to documents lodged in the earlier proceeding for a proceeding of the guidance and appeals panel.

335. Subsection 14ZZB(1) of the TAA relates to requesting reasons for a reviewable decision from a decision-maker. This provision is not relevant for Tribunal decisions referred to the guidance and appeals panel and therefore does not apply.

336. Subsection 14ZZB(2) of the TAA relates to the special rules for who can apply and when to apply to the Tribunal for a review of a tax decision. Clauses 123 and 125 of the ART Bill, which provide general rules for who can apply and when to apply to the President to refer a Tribunal decision to the guidance and appeals panel, will apply to these proceedings.

337. The provisions in subsections 14ZZB(3) and (4) of the TAA relate to the period for applying to refer a Tribunal decision to the guidance and appeals panel. These provisions are not needed for matters already referred to the guidance and appeals panel.

Section 14ZZB: Special rules for reviewable objection decisions or extension of time refusal decisions

Subsection 14ZZB(1): Requesting reasons for decision

338. Existing section 14ZZB of the TAA disapplies section 28 of the AAT Act in relation to a reviewable objection decision. Section 28 of the AAT Act provides a framework for a person to request a statement of reasons for a decision from a decision-maker.

339. Clauses 268, 269, 270 and 271 of the ART Bill provide a broadly equivalent framework to section 28 of the AAT Act, that allows a person affected by a reviewable decision to request reasons for a decision from a decision-maker. Generally, the decision-maker has 28 days from receiving this request to provide the reasons, and is required to explain any refusal to give reasons. Under the ART Bill, the person can apply to the Tribunal to challenge a decision to refuse to give reasons or to challenge the adequacy of reasons.

340. The amendments in this Schedule remove the general exemption from this standard framework for taxation matters. This means that generally, the Commissioner of Taxation will be required under the legislation to give reasons for decisions to a person on request, as per the standard framework under the ART Bill. This is consistent with the current administrative practice of the Australian Taxation Office, where reasons are generally already given for decisions.

341. The amendments still provide an exemption from the standard framework for certain taxation decisions. The standard provisions under the ART Bill are disapplied for decisions which are deemed to have been made by operation of the law (that is decisions taken to have been made under sections 14ZYA and 14ZYB of the TAA). In these circumstances, where the objection is deemed to have been disallowed by the operation of the law, there are no reasons that could be provided.

Subsection 14ZZB(2): Who can apply for review

342. Clause 17 of the ART Bill provides that anyone whose interests are affected by a decision may apply to the Tribunal for review. Subsection 14ZZB(2) disapplies this for reviewable objection decisions and extension of time decisions. Disapplying this provision ensures that only the entity who received the decision can initiate Tribunal review, which is necessary for the workability of the framework in the tax context.

343. It is a principle of our tax system that disputes by persons against tax decisions are matters solely between the person and the decision-maker.

Subsection 14ZZB(2): When to apply for review

344. Clause 18 of the ART Bill provides that the rules may provide the time limit for an application to the Tribunal, but that this cannot be less than 28 days after the day the decision is made. Subsection 14ZZB(2) disapplies this for reviewable objection decisions and extension of time decisions. This provides clarity on the interaction between amended section 14ZZC of the TAA (explained further below) and the general rule for when to apply for review provided for under the ART Bill.

Subsections 14ZZB(3) and (4): Special provisions affecting operation of provisions in ART Bill about when to apply to refer Tribunal decision to the guidance and appeals panel, to support certainty for the finality of taxation decisions

345. This amendment adjusts the operation of clause 125 of the ART Bill which allows the President to, at any point in time, extend the period for applying for a referral to the guidance and appeals panel beyond the standard 28-day period (from the date the Tribunal provides a statement of reasons for the decision) that otherwise applies. Instead, this amendment provides the President may only extend the period for making such an application within that 28-day period. Further, if the President allows a longer period than the standard 28 days, then the President must notify the Commissioner of Taxation as soon as practicable after providing that extension of time.

346. Clause 126 of the ART Bill requires the President to give notice of their decision to refer the Tribunal decision to the guidance and appeals panel or refuse the guidance and appeals panel referral application to both the applicant and the decision-maker.

347. Combined with the amendments made by this item, this gives the Commissioner of Taxation certainty about when a decision becomes final and when appropriate action to implement a Tribunal decision can begin. See explanation of amendments to section 14ZZL below regarding the test for when taxation decisions become final, the importance of certainty for this test and the Commissioner of Taxation's obligations regarding implementing final decisions.

Subsections 14ZZB(5) and (6): Operation and implementation of a decision that is subject to review – rules partially disapplied

348. Clause 32 of the ART Bill provides that a decision that is subject to review by the Tribunal continues to operate, unless the Tribunal makes an order staying or otherwise affecting the operation or implementation of the decision, to ensure the effectiveness of the review.

349. Generally, this provision does not apply in the tax context. However, the provision still applies for reviewable objection decisions relating to a small business taxation assessment decision, subject to section 14ZZH. See below for information about section 14ZZH.

350. Clause 32 is disapplied for general taxation matters partly because a more specific rule tailored to the tax context is already provided under the TAA. Subsection 14ZZM(1) of the TAA provides that the fact that a review is pending does not in the meantime interfere with, or affect, the administrative decision and any tax, additional tax or other amount may be recovered as if no review were pending.

351. In addition, for general taxation matters (other than those involving a small business taxation assessment decision), disapplying the standard provisions relating to the Tribunal's ability to make orders staying or otherwise affecting the operation or implementation of the original decision limit risks to tax revenue and the proper administration of the tax system.

Subsection 14ZZB(7): Tribunal decision continues to operate unless Tribunal orders otherwise – rules disapplied to ensure guidance and appeals panel framework consistent with tax framework

352. The amendments disapply clause 127 of the ART Bill relating to the status of a Tribunal decision, where there is a subsequent referral to the guidance and appeals panel for the Tribunal to consider the decision again.

353. Clause 127 of the ART Bill provides that a referral to the guidance and appeals panel does not affect the operation of the first Tribunal decision or prevent the taking of action to implement that Tribunal decision.

354. This is disapplied for taxation matters because it is contrary to the intention underpinning section 14ZZL of the TAA, which requires action to implement a Tribunal decision only once it has become final. Section 14ZZL of the TAA (as amended by this Schedule) requires the Commissioner of Taxation to implement a Tribunal decision within 60 days after the decision becomes final.

355. A decision is not considered final until the period for lodging a court appeal has been exhausted. Section 14ZZL of the TAA (as amended by this Schedule) also ensures that a decision will not be considered final until the period for applying for a guidance and appeals panel referral has been exhausted, and any guidance and appeals panel review of the Tribunal has also been finalised. For further information, see explanation of amendments to section 14ZZL below.

356. Clause 127 of the ART Bill provides that the Tribunal may stay the operation or implementation of the first Tribunal decision in order to secure the effectiveness of a guidance and appeals panel referral application. This is disapplied for taxation matters because it is unnecessary. In the tax context, the Commissioner of Taxation is not required to implement the first Tribunal decision until the decision or dispute is finalised (making a stay of that Tribunal decision unnecessary). See section 14ZZL of the TAA, as described briefly above and in further detail below.

Subsection 14ZZB(8): Operation and implementation of a decision that is subject to appeal

357. Clause 178 of the ART Bill provides that a decision of the Tribunal that has been appealed under the ART Bill to the FCA or the FCFCOA continues to operate. Clause 178 also ensures the Court may make an order staying or otherwise affecting the operation or implementation of either the Tribunal decision or the original decision in order to ensure the effectiveness of the hearing.

358. This provision is disapplied in the tax context. The application of the standard rule would be inconsistent with the Commissioner of Taxation being required to give effect to a Tribunal decision only after the decision became final (after any appeals from the decision were fully determined). See sections 14ZZL and 14ZZQ of the TAA for rules requiring the Commissioner to implement Tribunal decisions or court orders within 60 days after these decisions or orders become final. These rules protect tax revenue and the integrity of the tax system.

Section 14ZZC: When and how to apply to the ART

When to apply

359. The amendments ensure that despite the general rule for when to apply for review provided for under clause 18 of the ART Bill, an application for review of a decision must be made within 60 days after the person has been served with notice of the decision. This maintains the position under the existing law, which ensures consistency with the time period for lodging objections with the Commissioner of Taxation, consistency with the timeframe for filing an appeal to the FCA, as well as with the timeframes that apply for charity matters. These timeframes are already harmonised across over 15 tax and superannuation Acts.

How to apply

360. The amendments also ensure that despite subclause 34(1) of the ART Bill, which relates to the manner in which applications are to be made, consistent with the existing law, applications in the tax context must be in writing and set out a statement of reasons for the application.

361. For tax matters, it is always appropriate for applications to be made in writing and set out a statement of reasons for the application, including the grounds on which review is sought. Under section 14ZZK of the TAA, the grounds of review are limited to the grounds stated in the original objection by the applicant. The subject matter of such decisions concern the affairs of the applicant, who is best placed to know the details of their own affairs.

362. Although a failure to include a statement of reasons does not affect the validity of the application, ensuring an application for review includes these minimum content requirements ensures the Tribunal and the Commissioner of Taxation are put on notice about the scope of the review. This includes being put on notice about information the Commissioner of Taxation needs in order to meet their initial lodgement obligations, as set out in section 14ZZF of the TAA (as amended by this Schedule).

363. It is expected that where an application does not include a statement of reasons for the application in the first instance, such a statement will need to be provided before the Tribunal notifies the decision-maker of the application for review of the decision for the purposes of subsection 14ZZF(2) (as amended by this Schedule), noting that the Commissioner of Taxation has 28 days to lodge initial documents with the Tribunal starting from the day the Tribunal notifies them of the application.

364. Clause 34 of the ART Bill provides that the manner of applying and the required content of the application will be set out in practice directions. An application for review in the taxation context must still comply with any such requirements set out in practice directions, to the extent that the requirements are consistent with the application being in writing and setting out a statement of reasons for the application.

Prescribed fees

365. Consistent with the current law for taxation matters, a valid application does not require the application to be accompanied by the prescribed application fee. Under the ART Bill, a fee may be payable in relation to the application and an application may be dismissed 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 the ART Bill, the Tribunal may only join another party to the proceedings if the original applicant gives their consent.

367. This retains the position under the existing law which maintains the principle of confidentiality in taxation hearings.

Section 14ZZE: Hearings before ART to be held in private if applicant so requests

368. Clause 69 of the ART Bill provides that generally hearings should be held publicly. These amendments ensure that despite this provision, for taxation matters, a hearing must be in private if the applicant requests it.

369. This retains the position under the existing law which maintains the 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 to lodge additional documents

370. The amendments replace clause 23 of the ART Bill, which is about the decision-maker giving reasons and documents to the Tribunal, with rules tailored for the tax context.

371. This includes providing a list of certain documents that are required for initial lodgement, which utilises language from the existing law which is well understood and consistent with language used in the TAA.

372. Clause 23 of the ART Bill requires a decision-maker to give documents that are in their possession and control that are considered to be relevant to the review. In contrast, these amendments ensure that in the tax context, the decision-maker is required to give documents that are in their possession and control that are considered to be necessary to the review of the relevant decision, and to give a list of such documents. This facilitates the efficient conduct of proceedings, avoiding large volumes of documents being lodged with the Tribunal that may never be referred to or are otherwise unnecessary.

373. This item also replaces clause 25 of the ART Bill, which provides an ongoing obligation on a decision-maker to give additional documents to the Tribunal that are relevant to the review that come into their possession or control at any time during the proceeding. Instead, decision-makers must give the Tribunal additional documents that are necessary to the review that come into their possession or control. This ensures the requirements for ongoing lodgement aligns with the special provisions for initial lodgement of documents with the Tribunal.

374. Clause 26 of the ART Bill provides the Tribunal with the power to obtain any additional documents it requires in particular cases. Subsections 14ZZF(5) and (6) of the TAA facilitates the Tribunal's exercise of such powers (see below).

Subsections 14ZZF(5) and (6): Requesting list of relevant documents

375. The amendments insert subsection 14ZZF(5) of the TAA to ensure that consistent with the existing law, the Tribunal can require a decision-maker to lodge with the Tribunal a copy of a list of documents in their possession or control considered to be relevant to the review. The list of relevant documents would enable the Tribunal to consider whether further documents should be lodged for tax matters.

376. Subsection 14ZZF(6) of the TAA clarifies that the Tribunal's power to request the list of relevant documents is in addition to the Tribunal's powers under clause 26 of the ART Bill to require additional documents be lodged.

Requesting documents orally in a conference

377. Section 14ZZF of the TAA provides the AAT with the power to request documents orally at a conference, as subsection 37(2) of the AAT Act only allows the AAT to request documents in writing.

378. This is not necessary for the ART Bill, as the Tribunal will have the ability to request documents either orally or by written notice under clause 26 of the ART Bill.

Subsection 14ZZF(7): Deeming rules

379. The amendments insert subsection 14ZZF(7) of the TAA which provides that for the purposes of the ART Bill, the requirement to give documents in section 14ZZF is taken to be the requirement to give documents under particular provisions in the ART Bill. Similarly, documents given under section 14ZZF are taken to be given under particular provisions in the ART Bill.

380. The deeming rules clarify that satisfying the requirements about giving documents to the Tribunal in section 14ZZF of the TAA will satisfy the requirements provided for by the ART Bill.

381. The deeming rules also ensure that various provisions under the ART Bill, which will apply if a decision-maker is required to give documents under particular provisions of the ART Bill or if a decision-maker has given documents under particular provisions of the ART Bill, operate as intended.

382. See explanation above relating to amendments to section 165-25 of the ACNC Act for examples of how analogous deeming rules operate.

383. The amendments insert a note to subsection 14ZZF(7) of the TAA, which also explains the effect of the deeming rules in subsection 14ZZF(7).

Repeal of section 14ZZG: Modification of section 38 of the AAT Act

384. These amendments repeal section 14ZZG of the TAA, which provides that the AAT can obtain additional statements from a person who lodged a statement giving the reasons for a decision with the Tribunal. The provision is no longer required as this outcome will be achieved by subsection 14ZZF(7) of the TAA, as introduced by this Schedule.

385. Subsection 14ZZF(7) of the TAA, as introduced by this Schedule, ensures that for the purposes of the ART Bill, the requirement to give a statement giving the reasons for the decision under the TAA is taken to be the requirement to give a statement of reasons for the decision to the Tribunal under paragraph 23(a) of the ART Bill.

386. Subsection 14ZZF(7) of the TAA applies more broadly for the purposes of the ART Bill than section 14ZZG. Section 14ZZG achieves the same outcome (but only in relation to the operation of section 38 of the AAT Act (power of Tribunal to obtain additional documents)). See also explanation of deeming rules in subsection 14ZZF(7) of the TAA above.

Section 14ZZH: Limitation on orders staying or affecting reviewable objection decisions relating to small business taxation assessment decisions

387. Section 14ZZH is amended to ensure that the Tribunal's standard powers to make orders staying, or otherwise affecting the implementation of a decision, are subject to certain limitations for small business taxation assessment decisions. This amendment ensures that section 14ZZH continues to operate in substantively the same way for the Tribunal. However, the limitations are no longer restricted to proceedings in the Small Business Taxation Division of the AAT, reflecting that the Tribunal will not conduct itself using the same structure.

388. The provision continues to allow the Tribunal, in a proceeding for review of a prescribed reviewable objection decision, to make orders staying or otherwise affecting the implementation of a decision for small business taxation assessment decisions, which is not otherwise available for general taxation matters. However, this is subject to limitations designed to limit risks to tax revenue and the proper administration of the tax system.

Section 14ZZJ: Publishing ART decisions

389. Consistent with the existing law, section 14ZZJ of the TAA provides that where a hearing is private, no FCA appeal has been lodged and the Tribunal publishes reasons for the decision, the Tribunal must ensure that as far as practicable, that its reasons for the decision are framed so as not to be likely to enable the identification of the person who made the relevant application.

390. This balances the principle of taxpayer confidentiality with the continued availability of precedents for use by taxpayers and their professional advisors.

391. Existing section 14ZZJ clarifies that the AAT could still publish reasons for a decision, where hearings for the proceeding were held privately. This provision is no longer necessary, as this clarification is instead made in the ART Bill (see note to subclause 113(4) of the ART Bill).

Section 14ZZK: Grounds of objection and burden of proof

392. The amendments update terminology in section 14ZZK to ensure the provision continues to operate in the same way for the Tribunal.

393. The provision generally limits the grounds of the application to those covered in the original objection (unless the Tribunal orders otherwise). This ensures that the Tribunal has sufficient knowledge and information to handle the review and that only relevant facts are considered to promote administrative efficiency by limiting the scope of appeals to directly relevant issues.

394. The law in relation to the burden of proof for tax matters has not been altered, which has been a longstanding core feature of Australia's tax system.

Section 14ZZL: Implementation of ART decisions

395. Generally, the amendments update terminology in section 14ZZL to ensure the provision continues to operate in substantively the same way for the Tribunal. The provision ensures that the Commissioner of Taxation is required to implement or otherwise take action to give effect to the Tribunal's decision within 60 days of the decision becoming final.

396. The amendments also make changes to the test for when taxation decisions become final to account for a referral to the guidance and appeals panel.

Accounting for guidance and appeals panel referral in test for when tax decisions become final

397. The amendments to section 14ZZL ensure that a taxation decision will not be considered final until the period for applying for a guidance and appeals panel referral has been exhausted, including any additional period provided for such referral applications by the President. This ensures that if the President extends the period for making an application for a referral beyond the standard 28-day period that applies, then the decision will not be considered final. The President's discretion to extend this period is subject to special provisions affecting its operation, as explained for the amendments to section 14ZZB of the TAA above.

398. If a decision is referred to the guidance and appeals panel, essentially for a second review by the Tribunal, the decision will also not be considered final.

399. Ensuring that the Commissioner of Taxation is not obliged to take action to give effect to a decision until after it becomes final and having a clear test for when taxation decisions become final supports the proper administration of the tax system. For example, otherwise the Commissioner of Taxation might be required to take steps to implement a decision that cannot be undone, such as by making consequential amendments to another taxpayer's assessment or issuing director penalty notices.

Section 14ZZM: Pending review not to affect implementation of taxation decisions

400. This amendment updates a legislative reference, replacing the reference to section 41 of the AAT Act in subsection 14ZZM(2) of the TAA Act with a reference to the equivalent provision in the ART Bill, subclause 32(2). Section 41 of the AAT Act, and the equivalent clause 32 of the ART Bill, provides the Tribunal's power to stay or otherwise affect the operation or implementation of a decision. Section 14ZZM of the TAA provides that a pending review in relation to a taxation decision does not affect the decision, and subsection (2) clarifies that this is subject to any order made (by the Tribunal) under subclause 32(2) of the ART Bill.

401. This amendment is technical in nature, and ensures that section 14ZZM of the TAA continues to operate in substantively the same way in relation to the Tribunal.

402. The amendments also insert a note to explain that an order made under subclause 32(2) of the ART Bill staying or otherwise affecting the implementation of a decision is subject to the limitations on such orders relating to small business taxation assessment decisions in section 14ZZH of the TAA. See above for explanation of section 14ZZH of the TAA.

PART 2 - 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 provisions in Treasury portfolio Acts

403. These items include tables which make bulk amendments to the following Treasury portfolio Acts:

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A New Tax System (Australian Business Number) Act 1999

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ASIC Supervisory Cost Recovery Levy (Collection) Act 2017

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Australian Small Business and Family Enterprise Ombudsman Act 2015

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Business Names Registration Act 2011

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Business Names Registration (Transitional and Consequential Provisions) Act 2011

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Commonwealth Registers Act 2020

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Competition and Consumer Act 2010

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Corporations Act 2001

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Crimes (Taxation Offences) Act 1980

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Excise Act 1901

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Financial Regulator Assessment Authority Act 2021

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Financial Sector (Transfer and Restructure) Act 1999

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Income Tax Assessment Act 1936

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Income Tax Assessment Act 1997

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National Consumer Credit Protection Act 2009

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Payment Times Reporting Act 2020

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Petroleum Excise (Prices) Act 1987

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Petroleum Resource Rent Tax Assessment Act 1987

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Retirement Savings Accounts Act 1997

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Small Superannuation Accounts Act 1995

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Superannuation Industry (Supervision) Act 1993

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Superannuation (Self Managed Superannuation Funds) Taxation Act 1987

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Tax Agent Services Act 2009

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Taxation Administration Act 1953

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Taxation (Interest on Overpayments and Early Payments) Act 1983

Terminology changes

404. These items amend terminology. See explanation of general terminology changes above.

Item 74: Amendments to listed provisions in the Taxation Administration Act 1953

Authorities relevant to whether a matter is reasonably arguable

405. The amendments to paragraph 284-15(3)(c) of Schedule 1 to the TAA update the provision to refer to both the AAT and the Tribunal. Section 284-15 of Schedule 1 to the TAA incorporates various sources of authorities, which are relevant to determine whether a matter is reasonably arguable. The amendments ensure that AAT decisions continue to be a relevant authority for these purposes and that decisions of the Tribunal will also be relevant.

Item 75: Amendments to listed provisions in the Taxation (Interest on Overpayments and Early Payments) Act 1983

Decisions to which the Taxation (Interest on Overpayments and Early Payments) Act 1983 applies

406. The amendments ensure that decisions of both the AAT and the Tribunal are considered to be decisions to which the Taxation (Interest on Overpayments and Early Payments) Act 1983 applies. This is achieved by referring to both the AAT and the Tribunal in paragraph (b) of the definition of 'decision to which this Act applies' in section 3 of the Taxation (Interest on Overpayments and Early Payments) Act 1983. This ensures this Act continues to apply as intended, ensuring that if as a result of a decision of either the AAT or the Tribunal a person overpays an amount to the Commissioner, the person may be entitled to interest on the overpaid amount.

SCHEDULE 2 - HOME AFFAIRS

OUTLINE

407. Schedule 2 of the Consequential Bill contains amendments to the Migration Act 1958 in the Home Affairs portfolio. The amendments harmonise and improve the review process for migration and protection visa applicants.

408. The schedule repeals Part 7 of the Migration Act to provide for more effective and efficient reviews of migration and protection visa decisions. The amendments in the Schedule do so by providing a single, harmonised process for the review of migration and protection visa decisions in Part 5 of the Act. The provisions retain and enhance special features that are fundamental to the operation of Tribunal review for migration and refugee matters, including provisions that disapply or apply instead of, or in addition to, provisions of the ART Bill. These provisions recognise the distinct nature of these applications and their volume and complexity. The Schedule includes provisions:

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specifying that the Minister is taken to have elected to be a non-participating party for most Tribunal review proceedings (other than guidance and appeals panel proceedings) for reviewable migration and protection visa decisions

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setting out how to make an application for Tribunal review, who may apply and who the other parties to a review can be

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mandating private hearings for reviewable protection decisions at the Tribunal

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standardising timeframes for applying for review to 28 days from when the person was notified of a decision, except for certain applications where shorter timeframes are required (people in immigration detention, character related visa decisions and bridging visa decisions)

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disapplying provisions in the ART Bill that would lead to uncertainty or compromise the finality of visa decisions, so that a person's visa status is always clear, such as extensions of time, reinstatement of applications and remittal of decisions prior to the finalisation of a review

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altering the effect of certain provisions in the ART Bill concerning provision of documents and statements of reasons to the Tribunal and parties to reflect the potential volume of materials relating to these reviews

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providing a simplified system for access to Tribunal files on request for both migration and protection decisions, avoiding the need for lengthy processes under the FOI Act

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adjusting the exhaustive statement of the natural justice hearing rule, so that it applies only in limited, critical areas

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disapplying appeals to the guidance and appeals panel for visa related decisions, while retaining the ability for the President of the Tribunal to refer matters raising systemic issues to the guidance and appeals panel.

409. Some amendments remove special procedures for reviews of migration and protection matters. In these cases, the standard provisions in the ART Bill will apply. The amendments would significantly standardise the availability of Tribunal powers and procedures for migration and protection matters, supporting consistency and collaboration across the Tribunal. This includes the ability to hold directions hearings, case conferences and to use broader dismissal powers, directions powers, and summons powers. Administrative and procedural tasks will be able to be delegated to registrars and some staff.

410. The Schedule also repeals Part 7AA of the Migration Act to abolish the Immigration Assessment Authority. Relevant applicants will now have their matters reviewed in the same way as any other protection visa applicant.

411. Amendments are also made to visa related decisions and decisions made by the Migration Agents Registration Authority in relation to former migration agents, separate to the amendments made for migration and protection matters under existing Part 5 and 7 of the Migration Act outlined above. These amendments are mostly consequential in nature.

412. The Schedule also makes a range of minor amendments, replacing outdated references to the AAT and the AAT Act with updated terminology, replacing references to provisions of the AAT Act with references to the equivalent provision under the ART Bill and repealing redundant provisions as required. These amendments ensure the Tribunal has jurisdiction to review decisions that are reviewable by the AAT and that various provisions will continue to operate in the same way as the existing law for the Tribunal. In some cases, provisions are amended to cover both the AAT and the Tribunal to ensure these provisions operate as intended or to manage transitional issues.

413. This includes minor, consequential amendments to the Immigration (Guardianship of Children) Act 1946 and the Maritime Transport and Offshore Facilities Security Act 2003.

414. Amendments to these Acts may be contained in both Part 1 (Main amendments) and Part 2 (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 'Administrative Appeals Tribunal', 'AAT' and 'Administrative Appeals Tribunal' Act 1975' and replacing with references to the 'Administrative Review Tribunal', 'ART' and 'Administrative Review Tribunal Act 2024'. These amendments ensure that the Tribunal has jurisdiction to review decisions that are reviewable by the AAT and that provisions under those laws continue to operate in substantively the same way in the new Tribunal.

Immigration (Guardianship of Children) Act 1946

Items 1 and 2: At the end of subsection 11A(6), Section 11B

Terminology changes and updating legislative references; Repealing provisions no longer necessary

416. Item 2 repeals section 11B, which provides requirements for the Tribunal to provide notice of and reasons for its decisions for certain decisions under the Act. The provision is not necessary as clause 266 of the ART Bill provides general requirements for the Tribunal to provide notice of and reasons for its decision on a review of a decision. The effect of repealing section 11B is that clause 266 of the ART Bill will apply.

417. Item 1 is consequential to the repeal of section 11B. It inserts a note referring to clause 266 of the ART Bill.

Maritime Transport and Offshore Facilities Security Act 2003

Item 3: Section 201 (note)

Terminology changes and updating legislative references

418. This item updates legislative references, replacing the reference to section 27A of the AAT Act in the note to section 201 of MTOFSA with a reference to the equivalent provision in the ART Bill, clause 266, and removing the reference to the Code of Practice determined under section 27B of the AAT Act. These amendments are technical in nature, and ensure that section 201 of MTOFSA continues to operate in substantively the same way in relation to the Tribunal.

419. Consistent with section 27A of the AAT Act, under clause 266 of the ART Bill, a decision-maker is required to notify persons who are affected by the decision of the making of the decision and their right to have the decision reviewed. Although the item does not update the note to refer to the equivalent provision to section 27B of the AAT Act, clause 267 of the ART Bill, this provision also applies to require a decision-maker to have regard to any prescribed rules when giving such notices. It is expected that any prescribed rules relating to the giving of notices under the ART Bill will be based on the Code of Practice.

Migration Act 1958

Item 4: Subsection 5(1) (definition of AAT Act Migration decision )

Terminology change

420. This item repeals the definition of AAT Act Migration decision, which is replaced by the ART Act migration decision inserted by Item 5 below.

Item 5: Subsection 5(1)

Updating definitions

421. This item inserts new definitions into the Migration Act. The following definitions explain, or point to sections that explain, expressions used in the Migration Act:

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ART – a definition is inserted to explain that references to the ART in the Migration Act mean the Administrative Review Tribunal.

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ART Act – a definition is inserted to explain that references to the ART Act in the Migration Act mean the Administrative Review Tribunal Act 2024.

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ART Act migration decision – replaces the definition of AAT Act migration decision to reference the ART Act. Decisions which are 'ART Act migration decisions' are defined in section 474A. This term is included in the definition of 'migration decisions', which is used to establish the application of judicial review provisions under the Migration Act. See also items 9 and 238 of this Schedule.

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ART member – a definition is inserted to replace the definition of tribunal member, repealed by item 61. ART member 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 through throughout the Migration Act in place of tribunal member.

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ART practice directions – this definition refers to practice directions that the President can make under clause 36 of the ART Bill in relation to the operations, procedures of the Tribunal, and the conduct of reviews.

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ART Principal Registrar – a definition is inserted to replace the definition of Registrar in the Migration Act, repealed by item 122. It refers to the Chief Executive Officer and Principal Registrar of the Tribunal. The 'ART Principal Registrar' is the agency head of the Tribunal and their responsibilities include assisting the President to manage the administrative affairs of the Tribunal.

Item 6: Section 5(1)

Repealing provisions no longer necessary

422. This item repeals the definitions of excluded fast track review applicant, fast track applicant, fast track decision, fast track reviewable decision and fast track review applicant. These are no longer necessary, consequential to the repeal of Part 7AA by item 228.

Item 7: Subsection 5(1) (definition of finally determined )

Repealing provisions no longer necessary

423. This item repeals and substitutes the definition of finally determined from the Migration Act with one to be set out in new section 11A of this Act, inserted by item 15.

Item 8: Subsection 5(1) (definition of Immigration Assessment Authority )

Repealing provisions no longer necessary

424. This item repeals the definition of Immigration Assessment Authority, which is no longer necessary consequential to the repeal of Part 7AA by item 228.

Item 9: Subsection 5(1) (paragraph (d) of the definition of migration decision )

Updating definitions

425. This item replaces paragraph (d) of the definition of migration decision, consequential to the repeal of 'AAT Act migration decision' by item 4 and the insertion of ART Act migration decision by item 5.

Items 10 and 11: Subsection 5(1)

Updating definitions

426. These items repeal the definitions of Part 5-reviewable decision, Part 7-reviewable decision and referred applicant from subsection 5(1), and insert the terms reviewable migration decision and reviewable protection decision which are provided for in sections 338 and 338A of the Migration Act, by items 125 to 133.

427. These amendments are related to the repeal of Part 7 and harmonisation of Parts 5 and 7 of the Migration Act within 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 7AA by item 228.

Item 12: Subsection 5(1) (definition of Tribunal )

Repealing provisions no longer necessary

428. This item repeals the definition of Tribunal , consequential to the insertion of ART by item 5.

Item 13: Subsections 5(1AA), (1AB), (1AC) and (1AD)

Repealing provisions no longer necessary

429. This item repeals these subsections of the Migration Act relating to the fast track review process at the IAA under Part 7AA, which are no longer necessary consequential to the repeal of Part 7AA by item 228.

Items 14 and 15: Subsections 5(9), (9A), and (9B), After section 11

When applications under this Act are finally determined

430. These items repeal subsections 5(9), (9A) and (9B) and insert section 11A for the definition of 'finally determined' . New section 11A preserves the intent of the repealed subsections, enhances readability and makes clear when an application under the Migration Act is finally determined .

431. Section 11A reflects that reviews of reviewable migration and protection decisions will be governed by both the Migration Act and the ART Bill. Reviews are 'by application to the ART under Part 5'. New sections 347 and 347A in Part 5 of the Migration Act, inserted by item 136, set out the requirements for an application to the Tribunal for review of a reviewable migration decision or a reviewable protection decision. Once the application is properly made, the Tribunal conducts review of decisions in accordance with provisions of the ART Bill, subject to any contrary provisions in the Migration Act.

432. Subsection 11A(1) largely replicates repealed subsection 5(9), with updated references, excluding those which are no longer necessary consequential to the repeal of Part 7 and Part 7AA by item 228.

433. Subsection 11A(1) provides that an application is finally determined in either of the following circumstances:

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the decision that has been made in respect of the application is not, or is no longer, subject to any form of review by application to the Tribunal, or

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the decision that has been made in respect of the application was subject to some form of review by application to the Tribunal, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.

434. The circumstances intended to be caught by paragraph 11A(1)(a) include where the Tribunal has no jurisdiction to review a decision under section 348 because an application to the Tribunal was not properly made in accordance with section 347.

435. Subsection 11A(2) also largely replicates repealed subsection (9A) with updated references, and providing for the dismissal powers available to the Tribunal. When an application for review is instituted as prescribed, the relevant application under the Migration Act is finally determined :

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for Tribunal decisions made under clause 105 of the ART Bill (that is, affirming or varying the reviewable decision or setting it aside and making a decision in substitution for the reviewable decision) – when the decision is taken to be made under section 368

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for Tribunal decisions made under s 368C(3)(b) or 368C(5) of the Migration Act to confirm a decision to dismiss an application where reinstatement is available (that is, dismissals made under clauses 99, 100 and 101 of the ART Bill) – when the decision is taken to be made under section 368

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for Tribunal decisions to dismiss an application for review where reinstatement is not available – when the decision is taken to be made under section 368B.

436. Applications for reinstatement may be made for dismissals under clauses 99, 100 and 101 of the ART Bill (see section 368C inserted by item 171). This means that paragraph 11A(2)(b) would apply to other types of dismissals under the ART Bill, including where the applicant withdraws the application (clause 95).

437. Subsection (3) largely replicates existing subsection 5(9B) to provide that an application under Part 5 of the Migration Act is not finally determined if the Tribunal sets aside a decision and remits the matter for consideration in accordance with orders or recommendations of the Tribunal as permitted by the Migration Regulations under subsection 349(2) of the Migration Act.

438. To remove administrative uncertainty and put the original policy intention beyond doubt, new Division 5 of Part 5 of the Migration Act (containing sections 368 to 369) inserted by item 171 of this Schedule, sets out the obligations on the Tribunal in relation to notification of review decisions. Provided the day and time the decision was made has been recorded on the written statement or identified 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 finally determined .

439. The policy intention for ensuring that applications under this Act are finally determined is to ensure certainty on when the ART becomes functus officio, and thereby has no power to vary or revoke a decision. Once a decision is made, it cannot be re-opened or varied. Setting out when an application is considered finally determined for the purpose of the Migration Act provides certainty for a review applicant, visa applicant or the former visa holder and ensures clarity in relation to a person's visa status.

Items 16 and 17: Paragraph 57(1)(a), Subsection 57(1) (note)

Repealing provisions no longer necessary

440. These items are consequential to the repeal of the term 'excluded fast track review applicant' by item 6. Item 17 repeals the note to subsection 57(1). Item 16 repeals and replaces the definition in paragraph 57(1)(a) to reflect that the referenced subparagraph 57(1)(a)(ii) is no longer applicable, and the note at the end of subsection 57(1) is repealed.

Item 18: Subsection 65(1) (note 3)

Repealing note no longer necessary

441. This item repeals note 3 at the end of subsection 65(1), consequential to the repeal of Part 7AA by item 228.

Item 19: Paragraph 66(2)(d)

Updating legislative references

442. This item is an update consequential to the repeal of Part 7 by item 228 and reflects that review of a decision is sought by application under Part 5. New sections 347 and 347A in Part 5 of the Migration Act, inserted by item 136, set out the requirements for an application to the Tribunal for review of a reviewable migration decision or a reviewable protection decision.

Items 20 and 21: Subparagraph 66(2)(d)(iv), Paragraphs 66(2)(e) and (f)

Repealing provisions no longer necessary

443. Item 21 repeals paragraphs 66(2)(e) and (f), which refer to fast track review and are no longer required consequential to the repeal of Part 7AA by item 228. Item 20 changes the punctuation in the section to reflect that subparagraph 66(2)(d)(iv) is now the final item in the list.

Item 22: 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 item 228.

Item 23: At the end of section 66 (after the note)

Notification of decision

445. This item inserts new subsections (6) and (7) into section 66 of the Migration Act, which deals with notification of decisions to grant, or to refuse to grant, a visa.

446. New subsection 66(6) provides that clause 267 of the ART Bill does not apply to notifications of decisions to grant or to refuse to grant a visa made under this section.

447. Clause 267 of the ART Bill requires that, in giving notice of a decision, the decision-maker must have regard to matters prescribed by rules. The rules will be used to set out best practice considerations for giving notice, including the content of those notices. It is anticipated that these rules will be based on the Code of Practice for Notification of Reviewable Decisions and Rights of Review made under subsection 27B(1) of the AAT Act.

448. Disapplying clause 267 of the ART Bill allows the Department of Home Affairs to develop notices that are appropriate and tailored to the migration and protection decisions made under section 65 of the Migration Act. This allows the administration of the complex visa framework the appropriate degree of transparency, certainty and consistency, for a cohort which includes persons in immigration detention. Notification that is compliant with the procedural requirements governs the commencement periods for making an application to the Tribunal. The intent is to ensure that the legislative arrangements in relation to rights of review of decisions operate fairly and efficiently.

449. New subsection 66(7) provides that clause 268 of the ART Bill does not apply to decisions to refuse to grant a visa. Clause 268 of the ART Bill provides that persons affected by a reviewable decision may request reasons for that decision from the decision-maker. Clause 268 of the ART Bill is disapplied because section 66 of the Migration Act provides (among other things) when a notification of a decision to refuse an application for a visa must include written reasons (see, relevantly, paragraph 66(2)(c) and subsection 66(3) of the Migration Act).

Item 24: Paragraph 91G(2)(a)

Terminology changes

450. This item replaces the reference to 'Administrative Appeals Tribunal' with 'ART'. See explanation of general terminology changes above.

Items 25 and 26: Section 99 and Section 103

Terminology changes

451. These items replace references to 'Tribunal' and 'Immigration Assessment Authority' with a reference to the 'ART' in section 99 (Information is answer) and section 103 (Bogus documents not to be given etc). These amendments are consequential to the repeal of Part 7AA by item 228 and reference change from Tribunal to 'ART', and do not affect the current operation of these provisions.

Items 27, 27A and 27B: Paragraph 109(3)(c), Paragraph 109(3)(d), and at the end of section 109

Notification of decision – visa cancellation under subsection 109(1)

452. These items clarify the requirements for the notification of a visa cancellation decision under subsection 109(1) of the Migration Act.

453. Item 27 repeals paragraph 109(3)(c) of the Migration Act, which requires that the notification of a decision under subsection 109(1) must specify whether the decision is reviewable under Part 5 or Part 7. As the procedures across reviews of reviewable migration and protection decisions by the Tribunal will be harmonised by the repeal of Part 7 in item 228, paragraph 109(3)(c) is no longer necessary.

454. Item 27A modifies paragraph 109(3)(d) of the Migration Act to omit the words 'under Part 5 or 7' and substitute the words 'by application under Part 5.' This is consequential to the repeal of Part 7 by item 228, and reflects that review of a decision is sought by application under Part 5. New sections 347 and 347A in Part 5 of the Migration Act, inserted by item 136, set out the requirements for an application to the Tribunal for review of a reviewable migration decision or a reviewable protection decision.

455. Item 27B inserts new subsections 109(6) and (7) into the Migration Act. New subsection 109(6) clarifies that clause 267 of the ART Bill – which provides that a decision-maker must have regard to the rules when giving notice of a decision – does not apply to notifications given under subsection 109(3) of the Migration Act in relation to the cancellation of a visa under subsection 109(1). Disapplying clause 267 of the ART Bill allows the Department of Home Affairs to develop notices that are appropriate and tailored to cancellation decisions under section 109 of the Migration Act. This allows the administration of the complex visa framework the appropriate degree of transparency, certainty and consistency. The intent is to ensure that the legislative arrangements in relation to rights of review of decisions operate fairly and efficiently.

456. New subsection 109(7) provides that clause 268 of the ART Bill does not apply in relation to decisions to cancel a visa under section 109 of the Migration Act. Clause 268 provides that a person affected by a reviewable decision may request reasons for that decision from the decision-maker. Clause 268 is disapplied in relation to decisions under section 109 because subsection 109(3) requires (among other things) that notification of a cancellation decision must specify the grounds for the cancellation.

Item 28: Subsection 114(1)

Terminology changes

457. This item replaces the reference to 'Administrative Appeals Tribunal' with 'ART'. See explanation of general terminology 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 by item 228. Item 29 repeals paragraph 127(2)(b), which requires that the notification of a decision specify whether the decision is reviewable under Part 5 or Part 7. As the procedures across reviews of reviewable migration and protection decisions by the Tribunal will be harmonised by the repeal of Part 7 in item 228, paragraph 127(2)(b) is no longer necessary.

459. Item 30 removes the reference to Part 7 from paragraph 127(2)(c). Paragraph 127(2)(c) sets out the notification requirements where the former visa holder has a right of review to the Tribunal and the amendment clarifies that review of a decision is sought by application under Part 5. New sections 347 and 347A in Part 5 of the Migration Act, inserted by item 136, set out the requirements for an application to the Tribunal for review of a reviewable migration decision or a reviewable protection decision.

Item 31: Paragraph 127(2)(c)(i)

Terminology changes

460. This item inserts a reference to the Tribunal into paragraph 127(2)(c)(i). This amendment is related to items 29 and 30 and provides that if the former visa holder has a right to have a decision reviewed by application under Part 5, then the notice must state that the decision can be reviewed by the Tribunal.

Item 32: At the end of section 127

Notification of decision – cancellation of visas under Subdivision D

461. This item inserts new subsections (4) and (5) to section 127 of the Migration Act, which deals with the notification requirements for a cancellation decision under Part 2, Subdivision D of this Act.

462. New subsection 127(4) provides that clause 267 of the ART Bill does not apply to notifications of a cancellation decision made under this section.

463. Clause 267 of the ART Bill requires that, in giving notice of a decision, the decision-maker must have regard to matters prescribed by rules. The rules will be used to set out best practice considerations for giving notice, including the content of those notices. It is anticipated that these rules will be based on the Code of Practice for Notification of Reviewable Decisions and Rights of Review made under subsection 27B(1) of the AAT Act.

464. Disapplying clause 267 of the ART Bill allows the Department of Home Affairs to develop notices that are appropriate and tailored to cancellation decisions under section 127 of the Migration Act. This allows the administration of the complex visa framework the appropriate degree of transparency, certainty and consistency, for a cohort which includes persons in immigration detention. Notification that is compliant with the procedural requirements governs the commencement periods for making an application to the Tribunal. The intent is to ensure that the legislative arrangements in relation to rights of review of decisions operate fairly and efficiently.

465. New subsection 127(5) provides that clause 268 of the ART Bill does not apply in relation to a decision to cancel a person's visa. Clause 268 of the ART Bill provides that a person affected by a reviewable decision may request reasons for that decision from the decision-maker. Clause 268 of the ART Bill is disapplied in relation to decisions to cancel a visa because section 127 of the Migration Act provides (among other things) that notification decisions to cancel a visa must specify the ground for cancellation (see, relevantly, paragraph 127(2)(a) of the Migration Act).

Items 33, 34 and 35: Subsection 133A(1), Paragraph 133A(5)(c), and Subsection 133A(9)

Updating legislative references

466. These items update legislative references to the AAT, the former Migration Review Tribunal, Refugee Review Tribunal in section 133A to the Tribunal, the former AAT, the former Migration Review Tribunal or former Refugee Review Tribunal. These amendments are technical in nature, and ensure that section 133A of the Migration Act continues to operate in substantively the same way.

Items 36, 37 and 38: Subsection 133C(1), Paragraph 133C(5)(c), and Subsection 133C(10)

Updating legislative references

467. These items update legislative references to the AAT, the former Migration Review Tribunal, Refugee Review Tribunal in in section 133C to the Tribunal, the former AAT, the former Migration Review Tribunal or former Refugee Review Tribunal in relation to the Minister's power to cancel visas under section 116 (prescribed circumstances). These amendments are technical in nature, and ensure that section 133C of the Migration Act continues to operate in substantively the same way.

Items 39 and 40: Subsection 134(6) and Subsection 134(7)(b)

Terminology changes

468. These items replace the reference to 'Administrative Appeals Tribunal' with 'ART'. See explanation of general terminology changes above.

Item 41: After subsection 134(7A)

Notification of decision – cancellation of business visa

469. This item inserts new subsection (7B) to section 134 of the Migration Act, which deals with cancellation of business visas.

470. New subsection 134(7B) provides that clause 267 of the ART Bill does not apply in relation to notices given under subsection 134(7).

471. Clause 267 of the ART Bill requires that, in giving notice of a decision, the decision-maker must have regard to matters prescribed by rules. The rules will be used to set out best practice considerations for giving notice, including the content of those notices. It is anticipated that these rules will be based on the Code of Practice for Notification of Reviewable Decisions and Rights of Review made under subsection 27B(1) of the AAT Act.

472. Disapplying clause 267 of the ART Bill allows the Department of Home Affairs to develop notices that are appropriate and tailored to cancellation of business visa decisions under section 134 of the Migration Act. The approach allows the administration of the business visa framework the appropriate degree of transparency, certainty and consistency.

473. Notification that is compliant with the procedural requirements governs the commencement periods for making an application to the Tribunal. The intent is to ensure that the legislative arrangements in relation to rights of review of decisions operate fairly and efficiently.

Items 42 and 43: Subsection 134(8) and section 136

Terminology changes

474. These items replace the references to 'Administrative Appeals Tribunal' (wherever occurring) with 'ART'. See explanation of general terminology changes above.

Item 44: Subparagraph 137M(2)(b)(i)

Terminology changes

475. This item amends subparagraph 137M(2)(b)(i) to remove the requirement to state in the notice that the decision is reviewable 'under Part 5', and clarify the requirement for notifications to state that the decision is reviewable 'by the ART'. In light of the reform and repeal of Part 7, the practical information for the person is that the decision is reviewable (as opposed to what part of the Act the decision is reviewable under). This aligns with the requirement in paragraph 66(2)(d) for notices of refusal to grant a person a visa.

Item 45: At the end of section 137M

Notification of decision

476. This item inserts new subsections (4) and (5) to section 137M of the Migration Act, which sets out the notification requirements where the Minister does not revoke the automatic cancellation of a student visa under section 137L of the Migration Act.

477. New subsection 137M(4) provides that clause 267 of the ART Bill does not apply to notifications of decisions not to revoke a cancellation.

478. Clause 267 of the ART Bill requires that, in giving notice of a decision, the decision-maker must have regard to matters prescribed by rules. The rules will be used to set out best practice considerations for giving notice, including the content of those notices. It is anticipated that these rules will be based on the Code of Practice for Notification of Reviewable Decisions and Rights 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 notification of a decision not to revoke a cancellation.

479. Disapplying clause 267 of the ART Bill allows the Department of Home Affairs to develop notices under section 137M of the Migration Act that are appropriate and tailored to decisions not to revoke a cancellation under section 137L of the Migration Act. This allows the administration of the complex visa framework the appropriate degree of transparency, certainty and consistency. Notification that is compliant with the procedural requirements under the Migration Act triggers the commencement of the time period for making an application to the ART. The intent is to ensure that the legislative arrangements in relation to rights of review operate fairly and efficiently.

480. New subsection 137M(5) provides that clause 268 of the ART Bill does not apply to notification of decisions not to revoke a cancellation under section 137L. Clause 268 of the ART Bill provides that persons whose interests are affected by a reviewable decision may request reasons for that decision from the decision-maker. Clause 268 of the ART Bill will not apply where the notification requirements under 137M of the Migration Act apply, as paragraph 137M(2)(a) requires written reasons to be provided to the person.

Items 46 and 47: Paragraph 137S(1)(b) and Paragraph 137S(1)(c)

Updating legislative references

481. These items update the notice requirements for a decision to cancel a person's visa under section 137Q. Paragraph 137S(1)(b) is removed as the requirement is covered by paragraph 137S(1)(c).

482. Item 47 updates paragraph 137S(1)(c) to clarify that decisions are reviewable 'by application under Part 5'. New sections 347 and 347A in Part 5 of the Migration Act, inserted by item 136, set out the requirements for an application to the Tribunal for review of a reviewable migration decision or a reviewable protection decision.

483. These amendments are technical in nature, and ensure that section 137S of the Migration Act continues to operate in substantively the same way in relation to the Tribunal.

Item 48: At the end of section 137S

Notification of cancellation

484. This item inserts new subsections (3) and (4) to section 137S of the Migration Act, which sets out the notification requirements for cancellation of a regional sponsored employment visa under section 137Q.

485. New subsection (3) provides that clause 267 of the ART Bill does not apply to notifications of a cancellation decision made under this section.

486. Clause 267 of the ART Bill requires that, in giving notice of a decision, the decision-maker must have regard to matters prescribed by rules. The rules will be used to set out best practice considerations for giving notice, including the content of those notices. It is anticipated that these rules will be based on the Code of Practice for Notification of Reviewable Decisions and Rights of Review made under subsection 27B(1) of the AAT Act.

487. Clause 267 of the ART Bill is displaced because section 137S of the Migration Act already sets out the requirements for a notification of a decision to cancel a regional sponsored employment visa, and keeping clause 267 of the ART Bill means there could be contradictory obligations imposed to what is already required in the Migration Act framework.

488. New subsection 137S(4) provides that clause 268 of the ART Bill does not apply to decisions to cancel a regional sponsored employment visa. Clause 268 of the ART Bill provides that persons affected by a reviewable decision may request reasons for that decision from the decision-maker. Clause 268 of the ART Bill has been disapplied for persons who have had their regional sponsored employment visa cancelled under section 137S because the decision-maker must already provide written reasons for a decision under paragraph 137S(1)(a).

Item 49: Subsection 137T(2)

Notification of cancellation

489. This item amends section 137T(2) of the Migration Act to clarify that a cancellation under section 137T(1) is set aside under the ART Bill (as opposed to Part 5 of the Migration Act). This amendment is technical in nature, and is to ensure that section 137T(2) of the Migration Act continues to operate in substantively the same way in relation to the Tribunal.

Item 49A: At the end of section 140N

Notices of decision

490. This item inserts new subsection 140N(4) into the Migration Act, which relates to decisions made under section 140M. Section 140M of the Migration Act enables or requires (if regulations are made under section 140L of the Migration Act) the Minister to cancel or bar former or current approved sponsors. Section 140N enables the regulations to establish a process for cancelling or barring a person under section 140M.

491. New subsection 140N(4) provides that, if the regulations provide for notification by the Minister of the decision to take action under section 140M of the Migration Act to cancel the approval of a person as a work sponsor or family sponsor, clauses 267 and 268 of the ART Bill do not apply to the decision. The amendment has the effect that clauses 267 and 268 do not apply to notices given under the Migration Regulations for the purposes of taking action under section 140M.

492. Clause 267 of the ART Bill requires that, in giving notice of a decision, the decision-maker must have regard to matters prescribed by the rules. Disapplying clause 267 allows the Department of Home Affairs to develop notices that are appropriate and tailored to notifications under section 140N of the Migration Act. This allows the administration of the complex visa framework the appropriate degree of transparency, certainty and consistency. The intent is to ensure that the legislative arrangements in relation to rights of review of decisions operate fairly and efficiently.

493. Clause 268 of the ART Bill provides that a person affected by a reviewable decision may request reasons for that decision from the decision-maker. Clause 268 is disapplied in relation to decisions under section 140M of the Migration Act because regulation 2.98 of the Migration Regulations requires (among other things) the decision-maker to provide the grounds for making the decision.

Item 50: 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 item 228. This amendment is technical in nature and ensures that section 178 of the Migration Act continues to operate in substantively the same way in relation to the Tribunal.

Item 51: 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 Item 228, and reflects the harmonisation of Parts 5 and 7 into new Part 5, which now includes reviewable protection decisions. This amendment is technical in nature and ensures that section 197D of the Migration Act continues to operate in substantively the same way in relation to the Tribunal.

Items 52, 53, 54 and 55: Paragraph 197D(6)(a), Paragraph 197D(6)(b), and Paragraph 197D(6)(c)

Updating legislative references

496. These items provide for updates consequential to the repeal of Part 7 by item 228, and reflect the harmonisation of Parts 5 and 7 into new Part 5.

497. Paragraphs 197D(6)(a) and (b) also include amendments that are technical in nature to align with the language used in revised section 348, inserted by item 136, to refer to an application that is 'properly made', rather than a valid application. This ensures that section 197D of the Migration Act operates in substantively the same way.

Item 56: At the end of section 197D

Notification of decision that protection finding would no longer be made

498. This item inserts new subsection 197D(7) which provides that clause 268 of the ART Bill does not apply to a decision that a protection finding would no longer be made. Clause 268 of the ART Bill provides that persons affected by a reviewable decision may request reasons for that decision from the decision-maker. Clause 268 of the ART Bill will not apply if the Minister has made a decision that a 'protection finding' would no longer be made in respect of that person under subsection 197D(2) of the Migration Act, as paragraph 197D(4)(b) already requires written reasons to be provided to the person.

499. The approach allows the administration of the complex and sensitive protection findings framework the appropriate degree of transparency, certainty and consistency. Notification that is compliant with the procedural requirements governs the commencement periods for making an application for Tribunal review. The intent is to ensure that the legislative arrangements in relation to rights of review operate fairly and efficiently.

Items 57 and 58: Paragraph 202(2)(c) and Subsection 202(3)

Deportation of non-citizens upon security grounds

500. These items amend terminology. See explanation of general terminology changes above.

501. In addition to general terminology changes, item 57 amends paragraph 202(2)(c) to omit the reference to a 30-day time limit for applying for review of an adverse security assessment. The effect of this amendment is that the time limits for applying to the Tribunal for review in clause 18 of the ART Bill will apply to these applications. Clause 18 of the ART Bill allows the rules to specify the timeframes for applying for review, which cannot be less than 28 days from the date of the decision.

Item 59: Subsection 202(5)

Terminology changes and updating legislative references

502. This item replaces subsection 202(5) to disapply clause 19 of the ART Bill such that the Tribunal cannot extend the period during which a person may apply to the Tribunal for a review of an adverse security assessment. This amendment is technical in nature, and ensures that section 202 of the Migration Act continues to operate in substantively the same way in relation to the Tribunal.

Item 60: Paragraph 261AKD(2)(c)

Terminology changes

503. This item amends terminology. See explanation of general terminology changes above. Additionally, it removes reference to the IAA, consequential to the repeal of Part 7AA by item 228.

Item 61: Section 268AA (definition of tribunal member )

Terminology changes

504. This item repeals the definition of 'Tribunal member', which is replaced by 'ART member' as inserted by item 5 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: Various provisions in Division 14A of Part 2

Terminology changes

505. In Division 14A of Part 2, powers are conferred upon a Tribunal member or a magistrate in relation to orders and warrants that support the monitoring of compliance with student visa conditions. These items replace 'Tribunal member' with 'ART member' throughout this Division, consistent with terminology changes provided by items 5 and 61.

Item 90: Subsection 271(4) (paragraphs (b) and (c) of the definition of migration proceedings )

Terminology changes and repealing provisions no longer necessary

506. This item amends terminology. See explanation of general terminology changes above.

507. Additionally, it removes reference to the IAA, consequential to the repeal of Part 7AA by item 228. It clarifies that migration proceedings includes proceedings in the Tribunal for review of a reviewable under the Migration Act.

Item 91: Section 275 (definition of review authority )

Repealing provisions no longer necessary

508. This item repeals the definition which is no longer necessary consequential to the amendments made by items 10 and 228, which respectively repeal the defined terms 'Part 5-reviewable decision' and 'Part 7-reviewable decision' from subsection 5(1) of the Migration Act, and Part 7AA (which contains Immigration Assessment Authority provisions).

Items 92 and 93: Paragraphs 276(1)(c) and (d), and Paragraph 276(2)(c)

Terminology changes

509. These items replace references to 'review authority' consequential to the repeal by item 91, and clarify that the paragraphs apply to proceedings before the Tribunal.

Item 94: Paragraph 276(2A)(a)

Repealing provisions no longer necessary

510. This item removes a reference which is no longer necessary consequential to the repeal of Part 7 by item 228. This amendment is technical in nature and ensures that section 276 of the Migration Act continues to operate in substantively the same way in relation to the Tribunal.

Items 95 and 96: Subsection 278A(10) (heading), Subsection 278A(10)

Terminology changes

511. These items amend terminology. See explanation of general terminology changes above.

Item 97: Subsection 278A(10) (note)

Terminology changes

512. This item replaces the note at the end of the subsection to alert readers that the ART Bill requires reasonable steps to be taken to notify persons affected by a reviewable decision about their rights of review.

Item 98: Paragraph 282(4)(e)

Repealing provisions no longer necessary

513. This item removes a reference which is no longer necessary consequential to the repeal of Part 7 by item 228. This amendment is technical in nature and ensures that section 282 of the Migration Act continues to operate in substantively the same way in relation to the Tribunal.

Item 99: Paragraph 288(6A)(c)

Terminology changes

514. This item amends terminology to refer to the ART Bill. See explanation of general terminology changes above.

Item 100: Section 295 (note)

Terminology changes

515. This item replaces the note at the end of the section to alert readers that an application for review of the decision can be made to the Tribunal, and that the ART Bill requires reasonable steps to be taken to notify person affected by a decision about their rights of review. This amendment is technical in nature and ensures that section 295 of the Migration Act continues to operate in substantively the same way in relation to the Tribunal.

Item 101: Paragraphs 300(2)(b), (3)(a) and (b)

Terminology changes

516. This item amends terminology. See explanation of general terminology changes above. This item provides that an automatic continuation of a migration agent's registration is subject to certain decisions of the Tribunal.

Item 102: Section 306

Terminology changes

517. This item amends terminology. See explanation of general terminology changes above. It provides that applications may be made to the Tribunal for review of decisions by the Migration Agents Registration Authority on registration of migration agents. This amendment is technical in nature and ensures that section 306 of the Migration Act continues to operate in substantively the same way in relation to the Tribunal.

Item 103: Section 306AA

Terminology changes

518. This item amends terminology. See explanation of general terminology changes above. This amendment provides that during the period of a stay order by the Tribunal to cancel or suspend a migration agent's registration, the agent is subject to prescribed supervisory requirements.

Item 104: Section 311F

Terminology changes

519. This item replaces the section with terminology updates to provide that applications may be made to the Tribunal for review of decisions by the Migration Agents Registration Authority, barring former registered migration agents from being registered for up to 5 years. This amendment is technical in nature and ensures that section 311F of the Migration Act continues to operate in substantively the same way in relation to the Tribunal.

Items 105 and 106: Subsection 312B(1), Subsection 312B(3) (definition of review application )

Terminology changes

520. These items are consequential to the repeal of the term 'review authority' by item 91, to clarify that a registered migration agent who gives assistance with an application to the Tribunal for review of a decision to refuse a person a 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: Various provisions 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 item 91, and replace the term to reference the Tribunal in relation to disclosure and use of personal information about a registered migration agent, or an inactive migration agent.

522. The amendments to paragraph 321A(1)(b) and subsection 332F(1) provide for the Migration Agents Registration Authority and the Secretary respectively, to disclose said information to the Tribunal in prescribed circumstances. The Migration Agents Regulations 1998 may prescribe the circumstances the Tribunal may use or disclose the information received.

523. The amendments to section 332G provide for discretionary disclosure by the Tribunal to the Secretary or an authorised officer in prescribed circumstances. The Tribunal must disclose to the Department of Home Affairs when a registered migration agent notifies it that that the agent has given immigration assistance to a review applicant.

Item 115: Paragraph 336E(2)(f)

Repealing provisions no longer necessary

524. This item amends terminology. See explanation of general terminology changes above. Additionally, it removes reference to the IAA, consequential to the repeal of Part 7A by item 228. This item provides that a disclosure of identifying information for the purposes of a proceeding before the Tribunal is a permitted disclosure.

Item 116: Subsection 336F(5) (note)

Updating legislative references

525. This item reflects the updated definition of 'finally determined' located at section 11A, inserted by item 15. This amendment is technical in nature and ensures that section 336F of the Migration Act continues to operate in substantively the same way in relation to the Tribunal.

Item 117: Part 5 (heading)

Terminology changes

526. This item repeals and substitutes a new heading for Part 5 of the Migration Act. This amendment is necessary due to the repeal of Part 7 by item 228, and the insertion of new defined terms 'reviewable migration decision' and 'reviewable protection decision' by item 11.

Item 118: Division 1 of Part 5

Terminology changes

527. This item replaces the title of Division 1 of Part 5 to 'Preliminary' to better reflect the purpose and not duplicate the title of section 337.

Item 119: Section 336M

528. This item replaces the simplified outline of Part 5, consequential to the repeal of Part 7 by item 228, and describes the decisions that are in and out of scope of the revised Part 5.

Item 120: Section 336N

Repealing provisions no longer necessary

529. This item replaces the section to set out in new section 336N that revised Part 5 covers the review of both reviewable migration and protection decisions by the Tribunal. It includes a note referring readers to the definition of 'ART' in subsection 5(1), inserted by item 5.

530. This item also inserts new section 336, which provides how the ART Bill applies in relation to reviews of reviewable migration and protection decisions.

531. Subclause (1) provides that the ART Bill applies in relation to reviews of reviewable migration and protection decisions, unless they are expressly disapplied in this Part. Where provisions of the ART Bill apply, they apply subject to section 357A of the Migration Act (Exhaustive statement of natural justice hearing rule), as amended by this Schedule.

532. Subclause 336P(2) lists provisions of the ART Bill which do not apply to Tribunal reviews of reviewable migration and protection decisions.

533. Paragraphs 336P(2)(a), (b), (c) and (d) disapply the ART Bill's initial notification requirements and document production arrangements, because more tailored arrangements exist in the Migration Act. Section 352 of the Migration Act (which is retained with minor amendments made by items 144, 145 and 146) provides how the Secretary is to be notified of reviews (equivalent to paragraph 21(2)(b) of the ART Bill), and what information must be provided to the Tribunal in the first instance (equivalent to clause 23 of the ART Bill).

534. The Tribunal is not required to notify parties who become parties by operation of law (per paragraph 21(2)(c) of the ART Bill), or any other persons who may be affected by the decision (per subclause 21(3) of the ART Bill). This is because the Migration Act prescribes the relevant parties of a review (see proposed sections 347A and 348A, inserted by item 136).

535. Paragraphs 336P(2)(e), (f) and (g) disapply the rules for decision-makers to provide the Tribunal with documents and statements in clauses 24, 25 and 27 of the ART Bill. These provisions are switched off in recognition of the volume of reviewable migration and protection decisions, which necessitate a more tailored approach to fact-finding and information production to support reviews.

536. Clause 24 of the ART Bill (decision-maker must give Tribunal additional statement if Tribunal requires - general rule) is disapplied because it would require the Department of Home Affairs to prepare new materials to support a review – a significant resource impost. Similarly, clause 25 of the ART Bill (decision-maker must give Tribunal additional documents within 28 days - general rule) is disapplied because it would place an ongoing obligation on the Department of Home Affairs to monitor, identify and disseminate information that may be relevant to a review. The requirement to give additional documents to the Tribunal is not reasonably able to be complied with given the volume of materials provided to the Department as part of administering the migration system. Clause 26 of the ART Bill (decision-maker must give Tribunal additional documents on request – general rule) applies, which allows the Tribunal to make targeted requests for specific documents where it considers they would assist in the review.

537. Clause 27 of the ART Bill (decision-maker must give copies of reasons and documents to other parties - general rule) is disapplied, because new subsection 362A(1) in item 164 provides the applicant is entitled to request the Department of Home Affairs provide access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.

538. Paragraph 336P(2)(h) disapplies clause 32 of the ART Bill (reviewable decision continues to operate unless Tribunal orders otherwise). This is to avoid interfering with provisions in the Migration Act relating to when applications are finally determined. A person's immigration status in Australia is managed by the Department of Home Affairs, and is not intended to be affected by the Tribunal until a substantive decision on review is made, due to the serious consequences (such as detention or removal from Australia) that may flow. Review applicants may be eligible to be granted bridging visas while their review proceedings are on foot.

539. Paragraph 336P(2)(i) disapplies clause 85 of the ART Bill (Tribunal may remit decision to decision-maker for reconsideration). Remittals are provided for under existing section 349 of the Migration Act (as amended by item 136 to enable the Tribunal to exercise broader powers of remittal, if prescribed). This preserves the finally determined framework and provides for certainty about a person's visa status.

540. Paragraph 336P(2)(j) disapplies clause 103 of the ART Bill (if parties reach agreement - review of decisions only). Negotiated agreements are not compatible with the binary nature of the decisions under review.

541. Paragraph 336P(2)(k) disapplies clause 107 of the ART Bill (when Tribunal's decision on review comes into operation). This recognises that the integrity of Australia's migration framework requires a high degree of certainty around when the Tribunal's decision is made to protect applicants from being improperly placed in immigration detention. The Migration Act retains bespoke arrangements, provided for in new sections 368 and 368B (see item 171).

542. Paragraph 336P(2)(l) partially disapplies clause 294 of the ART Bill, such that a person who applies to the Tribunal for review of a decision under this Part cannot make an application to the Attorney-General for legal or financial assistance, unless the decision is one that has been referred to the guidance and appeals panel by the President of the Tribunal under clause 122 of the ART Bill. This item retains the effect of subsection 69(3) of the AAT Act in which an application for legal assistance to the Attorney-General is not currently available in the Migration and Refugee Division of the AAT. However, it ensures that, if a decision of the Tribunal is considered sufficiently significant to warrant consideration by the guidance and appeals panel, applicants can access additional support.

Item 121: Section 337 (definition of decision on a review )

Terminology changes

543. This item replaces the definition of 'decision on a review' consequential to the changes made by item 10, to refer to the relevant provisions of the ART Bill of the Migration Act (as amended by this Schedule).

544. This amendment is technical in nature and ensures the Migration Act continues to operate in substantively the same way in relation to decisions on a review by the Tribunal.

Item 122: Section 337

Repealing provisions no longer necessary

545. This item repeals the definition of 'Part 5-reviewable decision' from this section, consequential to the repeal of that defined term by item 10. This item also repeals definitions of 'member' (repealed by item 61) and 'Registrar' (repealed by item 122), consequential to the new terms of 'ART member' and 'ART Principal Registrar' inserted by item 5.

546. It also repeals the definition of 'officer of the Tribunal', which referred to a defined term in the AAT Act. This term does not exist in the ART Bill so the definition is no longer necessary.

Item 123: Section 337 (note)

Repealing provisions no longer necessary

547. This item repeals the note to section 337, consequential to the repeal of the defined term 'Tribunal' by item 12. An alternative note is inserted in new section 336N by item 120.

Item 124: Division 2 of Part 5

Repealing provisions no longer necessary

548. This item repeals the heading consequential to the repeal of the defined term 'Part 5-reviewable decision' by item 10, and the harmonisation of Parts 5 and 7 of the Migration Act. Sections 338 and 339 (as amended) will become part of the renamed Division 1 - Preliminary, with no effect on the interpretation of those sections.

Item 125: Section 338 (heading)

Terminology changes

549. This item changes the heading of section 338 to reflect the change to the definition within the section to 'reviewable migration decision', as amended by item 126 below, and consequential to the amendments effected by items 10 and 11.

Item 126: Subsection 338(1)

Terminology changes

550. This item amends terminology, consequential to the amendments made by items 10 and 11 which respectively repeal the definition of 'Part 5-reviewable decision' and insert the new defined term 'reviewable migration decision'.

Item 127: Paragraph 338(1)(b)

Terminology changes

551. This item amends terminology, consequential to the amendments made by items 10 and 11 which respectively repeal the definition of 'Part 7-reviewable decision' and insert the new defined term 'reviewable protection decision'.

Items 128 and 129: Paragraph 338(1)(c) and paragraph 338(1)(d)

Repealing provisions no longer necessary

552. Item 128 makes changes to the punctuation of paragraph (c) to reflect that it is the final paragraph in subsection 338(1). Item 129 repeals paragraph (d) referring to fast track decision, which is no longer necessary, consequential to the repeal of Part 7AA by item 228.

Items 130, 131 and 132: Subsections 338(2) to (3A), subsection 338(4), subsections 338(5) to (9)

Terminology changes

553. These items amend terminology, consequential to the amendments made by items 10 and 11 which respectively repeal the definition of 'Part 5-reviewable decision' and insert the new defined term 'reviewable migration decision'.

Item 133: After section 338

Meaning of reviewable protection decision

554. This item inserts new section 338A in Division 1 of Part 5 and defines 'reviewable protection decision'. New section 338A reflects the current definition in section 411 in Part 7 of the Migration Act, repealed by item 228.

555. Subsection (1) replicates current section 411 of the Migration Act. Subsection (2) omits the reference to fast track decisions, consequential to the repeal of Part 7AA by item 228.

556. The content of existing subsection 411(3), which concerns the issuing of conclusive certificates, is not replicated in section 338A as it is not necessary. Section 339, which is identical to subsection 411(3), provides the requirements for issue of conclusive certificates for both reviewable migration decisions and reviewable protection decisions.

557. New section 338A does not change the availability of Tribunal review for decisions under the Migration Act.

Item 134: Section 339 (note)

Terminology changes

558. This item amends terminology and is consequential to the repeal of the defined term 'Part 5-reviewable decision' by item 10. It clarifies that if a conclusive certificate is issued, the decision is not a reviewable migration decision or a reviewable protection decision, under the relevant provisions of the 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 Divisions 3, 4, 5, 8 and 8A in Part 5. The new headings of the Divisions are renumbered to reflect the repeal of Division 2 of Part 5, by item 124. The new headings reflect that Part 5 now covers review of reviewable migration and protection decisions.

Item 135: Division 3 of Part 5 (heading)

Updating heading

560. This item amends the heading of what is now Division 2 to reflect the restructure of Part 5 to incorporate provisions relating to reviewable protection decisions, and the repeal of Part 7 by item 228.

Item 136: Sections 347 to 349

561. This item repeals and substitutes existing sections 347, 348 and 349, setting out how to make an application for Tribunal review, who may apply and who the other parties to a review can be. It also deals with when the Tribunal can remit decisions to the Department of Home Affairs.

562. Item 136 also restructures new Division 2, and inserts sections 347A and 348A, to enhance readability and clarify the process for making an application for review by the Tribunal, and to reflect modern drafting practices.

Section 347 – Application for ART review

563. Subsection 347(1) provides that applications may be made to the Tribunal for review of reviewable migration and protection decisions.

564. Subsection 347(2) provides that an application for review must include any information, documents and fees that are prescribed in the Migration Regulations. Certain information must be provided alongside an application to allow the Tribunal and the Department of Home Affairs to identify the applicant, and the specific decision being reviewed. This is required because a person's visa status, and therefore right to remain in Australia, may be dependent on whether they have lodged a valid application for review.

565. Applications to the Tribunal are no longer required to be in an 'approved form' (from existing paragraphs 347(1)(a) and 412(1)(a)), providing greater flexibility for applicants and enabling substantial compliance with the requirements outlined in subsection 347(2).

566. Subsections 347(3) and (4) set out standardised timeframes for applications: seven days for those in immigration detention, and 28 days otherwise. These provisions significantly standardise the timeframe to apply for review of certain decisions, in order to create a consistent timeframe across similar applications for review of decisions.

567. Existing subsection 412(4), which provides for periods to be specified in the Migration Regulations, will no longer apply, consequential to the repeal of Part 7 by item 228. The current 70-day lodgement timeframe for people outside Australia will also be standardised to 28 days, reflecting that electronic communication renders the longer timeframe unnecessary.

568. The seven-day lodgement timeframe for people in immigration detention is a significant increase in time from the current requirement (in some cases) to apply for review of a decision within two days from being notified of the decision. It is intended to allow sufficient time for a person to make an application for review, while avoiding delays that would prolong a person's stay in detention, or delay removal or departure from Australia when a person has no further right to remain.

569. Subsection (5) disapplies clause 19 of the ART Bill, providing that the Tribunal is precluded from extending the period during which a person may apply to the Tribunal for review of a reviewable migration or protection decision. This is consistent with the current legislative framework. The provision is intended to avoid interfering with provisions in the Migration Act relating to when applications are being reviewed by the Tribunal, and when they are finally determined. A person's immigration status in Australia is managed by the Department of Home Affairs, and may depend on whether they have made a properly made application for review. A finite timeframe for lodgement of applications is essential to knowing when an application is 'finally determined' and ensures clarity in relation to a person's visa status.

570. Subsection (6) disapplies subclauses 34(2) and (3) of the ART Bill (information to include in applications and validity), so that the President may not specify information to be included with the application in practice directions. This reflects new subsection (2) which provides the information that must accompany a review application. Subclause 34(1) of the ART Bill applies, providing that the application may be made in writing or in any other manner specified in the practice directions.

571. Subsection (7) clarifies that the requirement set out in paragraph (2)(c) overrides any rules made under clause 296 of the ART Bill in relation to fees for an application for review of a reviewable migration or protection decision.

Section 347A – Who can apply for ART review etc.

572. New section 347A replicates current subsections 347(2), (3) and (3A) and subsections 412(2) and (3), with updated terminology for reviewable migration and protection decisions. The effect of those subsections is unchanged. They set out who is eligible to apply for review of a reviewable migration decision.

573. Subsection 347A(6) clarifies that this section displaces clauses 17 (who can apply) and 35 (applications may be made on behalf of a person) of the ART Bill. A person may still receive assistance with their application from another person.

Section 348 – ART to review reviewable migration decisions and reviewable protection decisions

574. Section 348, which confers jurisdiction on the Tribunal to review a reviewable migration or protection decision, is replicated, with a slight revision to reflect modern drafting practices and to reflect the repeal of Part 7 and harmonisation of Parts 5 and 7 of the Migration Act. This item inserts a new note clarifying the Tribunal has no jurisdiction to review a decision if the application for review is not properly made. This preserves the existing arrangements. A consequence of section 348 is that clause 97 of the ART Bill (Tribunal must dismiss application if decision not reviewable decision) has no operational effect for applications made under Part 5 that are not properly made.

Section 348A – Parties to a proceeding for review

575. New subsection 348A sets out how the arrangements under the ART Bill for participation of decision-makers (provided in Subdivision B of Division 5 of Part 4 of the ART Bill) will operate in relation to reviewable migration decisions and reviewable protection decisions and provides who may be a party to proceedings.

576. New subsection 348A(1) provides that the Minister is regarded as a non-participating party in Tribunal review proceedings under clause 61 of the ART Bill. Subsection 348A(3) further prevents the Minister from giving a participation notice (a notice that they wish to participate in the proceeding) to the Tribunal under clause 62 of the ART Bill and written submissions under clause 63 of the ART Bill. Cumulatively, these provisions replicate the effect of the existing law, where the Minister is not a party to the review, and does not participate or make submissions.

577. Subsection 348A(4) applies to alter the effect of subclause 63(2) of the ART Bill, enabling only a Deputy President or the President of the Tribunal to order a non-participating party (here, the Minister – in practice, the Minister's delegate) to either appear before the Tribunal, provide submissions or participate in the proceeding.

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 to request or require participation where it would assist in progressing the proceeding or in making the correct or preferable decision.

579. Subsection 348A(5) provides that any rules made under clause 64 of the ART Bill in relation to the participation of decision-makers in proceedings do not apply to reviewable migration decisions or reviewable protection decisions. This is because subsection (1) deems the Minister to be a non-participating party, so rules made in relation to election notices would have no application.

580. Subsection 348A(2) disapplies paragraph 22(1)(c) of the ART Bill so that another person cannot apply to become a party to a proceeding. This replicates existing settings, in which only the subject of a visa decision can be a party to a review.

Section 349 – Remittal

581. New subsection 349(1) disapplies subparagraph 105(c)(ii) of the ART Bill, which allows the Tribunal to make a decision on the review of a reviewable decision remitting the decision to the original decision-maker for reconsideration. New subsection (2) allows the Tribunal to make a decision on the review remitting a prescribed matter for reconsideration with such orders or recommendations as are permitted by the Migration Regulations. This reflects the existing legislative framework (that is, existing paragraphs 349(2)(c) and 415(2)(c) of the Migration Act).

582. Subsection 349(3) clarifies that subclause 31(1) of the ART Bill (decision cannot be altered outside Tribunal process) does not affect the Tribunal's ability to remit a matter under this section.

Items 137 and 138: Subsection 350(1), Subsection 350(2)

Terminology changes

583. These items amend terminology to provide that the provisions apply in relation to the actions and decisions of the Tribunal.

Items 139, 140, 140A and 141: Subsection 351(1), after Subsection 351(1), Paragraph 351(4)(a)

Terminology changes and updating legislative references

584. The Minister's discretion under subsection 351(1) to substitute a more favourable decision on grounds of public interest is updated to replace the reference to section 349 of the Migration Act with a reference to 'decisions referred to in subsection (1A)'.

585. New subsection 351(1A) identifies the relevant decisions of the Tribunal in relation to which subsection 351(1) applies:

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a decision under section 349 of the Migration Act

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a decision under section 368C of the Migration Act, and

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a decision under clause 105 of the ART Bill.

586. This makes it clear that that the Minister's power in subsection 351(1) of the Migration Act is to be available for remittal decisions under section 349 of the Migration Act, final decisions made under clause 105 of the ART Bill, and decisions made under section 368C of the Migration Act. In particular, it is to be available in circumstances where an application is dismissed (under clauses 99, 100 and 101 of the ART Bill) and the applicant fails to apply for reinstatement and the Tribunal confirms the decision to dismiss the application (see subsection 368C(5) of the Migration Act), or where an applicant applies for reinstatement and the Tribunal confirms the decision to dismiss the application (see paragraph 368C(3)(b) of the Migration Act).

587. The items also update terminology.

Item 142: Subsection 351(5)

Terminology changes

588. This item updates the subsection to specify that the exclusion of identifying information in the Minister's statement applies to a reviewable migration decision. This reflects the addition in item 143 of a new subsection specific to reviewable protection decisions. This amendment is technical in nature and ensures that reviews of reviewable migration decisions continue to operate in substantively the same way in relation to the Tribunal.

Item 143: After section 351(5)

Identity information relation to a reviewable protection decision

589. This item inserts new subsection (5A), which is based on existing subsection 417(5), and only applies to a reviewable protection decision. This addition to section 351 reflects the consolidation of Parts 5 and 7.

590. New subsection (5A) retains the ability for the Minister to substitute a decision made by the Tribunal on a review of a reviewable protection decision with a more favourable decision. It prohibits the Minister from including in the statement of the decision any information that would identify the applicant in cases involving a reviewable protection decision. This amendment is technical in nature and ensures that reviews of reviewable protection decisions continue to operate in substantively the same way in the Tribunal.

Item 144: Section 352 (heading)

Updating heading

591. This item amends terminology and is consequential to the repeal of the defined term 'Part 5-reviewable decision' by item 10, and reflects that Part 5 applies to reviews of reviewable migration decisions and reviewable protection decisions by the Tribunal.

Item 145: Subsection 352(1)

Terminology changes

592. This item amends terminology and reflects that applications are made to the Tribunal for reviews of reviewable migration and protection decisions.

Item 146: Subsections 352(2) and (4)

Terminology changes

593. This item amends terminology, consequential to amendments made by items 122 and 5 which respectively repeal the definition of 'Registrar' and insert the new defined term 'ART'. This amendment is technical in nature and ensures that the provision of documents continues to operate in substantively the same way in the Tribunal.

Item 147: Division 4 of Part 5 (heading)

Updating heading

594. This item amends the heading of what is now Division 4 to reflect the restructure of Part 5 to incorporate provisions relating to reviewable protection decisions, and the repeal of Part 7 by item 228.

Item 148: Sections 353 and 353B

595. This item repeals section 353 (Tribunal's way of working) because it is no longer necessary. The contents of this section are reflected throughout the ART Bill, in particular, in clause 50 – which now applies to reviewable migration and protection decisions, subject to section 357A (as amended by item 151 of this Schedule).

596. This item also repeals section 353B (Guidance decisions) because the Tribunal will have a guidance and appeals panel (see Part 5 of the ART Bill) which can make guidance decisions (clause 109 of the ART Bill). This section is removed so as not to duplicate or interfere with those arrangements.

ART may require Secretary to arrange for investigations etc.

597. Revised section 353 is based on existing paragraph 363(1)(d) (and the identical provision at paragraph 427(1)(d), for Part 7 reviewable decisions) to empower the Tribunal to require investigations or medical examinations that are necessary for a review to be conducted and reports to be provided.

598. Subsection 353(2) makes clear that this power of the Tribunal provided in the Migration Act is in addition to other powers of the Tribunal contained in the ART Bill, subject to any contrary provisions in the Migration Act.

599. The Tribunal's powers under this section to investigate an applicant's claims are discretionary. They do not impose upon the Tribunal a general duty to make such enquiries.

Item 149: Division 5 of Part 5 (heading)

Updating heading

600. This item amends the heading of what is now Division 4 to reflect the restructure of Part 5 to incorporate provisions relating to reviewable protection decisions, and the repeal of Part 7 by item 228.

Items 149A, 149B, 150 and 151: Subsection 357A(1), Subsection 357A(2), after Subsection 357A(2)

601. Existing Division 5 of Part 5, along with sections 375, 375A and 376, and Division 8A (as applicable to Division 5) of the Migration Act, constitute an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. The Migration Act will continue to contain an exhaustive statement of the natural justice hearing rule ('exhaustive statement'). However, its scope will be adjusted. The reform as a whole is intended to enhance the Tribunal's ability to efficiently and effectively manage the high volume of reviewable migration and protection decisions while providing fairness to genuine applicants.

602. Key features of the exhaustive statement of the natural justice hearing rule include:

•

providing certainty and clarity by requiring certain information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under the review to be put to the applicant for comment (section 359A)

•

providing access to written material, or a copy of any written material, to the applicant upon request (section 362A)

•

enabling applications for reviews of decisions made in relation to the same person to be combined (section 363)

•

prohibiting examination and cross-examination of any person appearing before the Tribunal (section 366D)

•

requiring reviews of certain bridging visa decisions to be completed within a prescribed period (section 367)

•

requiring the Tribunal to draw a negative inference if the applicant raises a new claim on review without a reasonable explanation as to why the claim was not raised before the primary decision was made (section 367A)

•

requiring reviews of reviewable protection decisions to be heard in private (section 367B)

•

limiting the disclosure of information and documents, where the Minister has certified their disclosure would be contrary to the public interest (sections 375, 375A and 376), and

•

providing clarity and certainty by codifying how documents must be provided to persons other than the Secretary (Division 7).

603. The requirements provide a clear framework for when the Tribunal must provide information to the applicant before proceeding to a decision, facilitating the effective and efficient management of reviewable migration and protection decisions. They apply to the exclusion of the common law natural justice rule, so that the Tribunal and parties have certainty that they comprise an exhaustive statement in relation to these requirements.

604. The exhaustive statement of the natural justice hearing rule does not apply to all aspects of a Tribunal review. This is to enable the Tribunal to exercise a broader range of powers and procedures to resolve matters efficiently and effectively. Powers in the ART Bill such as those relating to issuing directions, holding directions hearings, case conferencing, withdrawal and dismissal of matters will be available in these reviews.

605. Subsection 357A(1) is amended so that it provides that the 'relevant provisions' (rather than 'this Division') are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters 'they deal' with. New subsection 357A(2D) provides that the 'relevant provisions' for this purpose are:

•

Division 4, and

•

sections 374, 375, 375A and 376 and Division 7, in so far as they relate to Division 4.

606. Subsection (2) is repealed, because 357A(1) as amended and new subsection 357A(2D) make it unnecessary.

607. New subsection (2A) clarifies that, if there is any inconsistency between the relevant provisions and any of the following provisions in the ART Bill, this relevant provisions prevail to the extent of the inconsistency:

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clause 49, which provides the Tribunal has discretion as to how it conducts proceedings

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clause 50, which provides the Tribunal must conduct proceedings with as little formality and technicality as a proper consideration of the matters before it permits

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clause 53, which provides the Tribunal may determine the scope of the review, and

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clause 55, which requires the Tribunal to ensure that each party is given reasonable opportunity to present their case.

608. New subsection 357A(2A) makes clear that these provisions in the ART Bill only apply to the extent that they are able to operate consistently with the specific approach outlined in the Migration Act. The specific parts of the ART Bill that are disapplied reflect the matters which may interact with the elements of the exhaustive statement.

609. A note at the end of subsection 357A(2A) refers readers to new subsection 336P(1), inserted by item 120, on the interaction between the Migration Act and the ART Bill.

610. New subsection 357A(2B) disapplies paragraph 55(1)(b) of the ART Bill for the purposes of the exhaustive statement. The effect of this is that the Tribunal is not required to provide the applicant to a proceeding a reasonable opportunity to access information or documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding. This is because those requirements are comprehensively set out in the Migration Act, as amended by this schedule.

611. Subsection 357A(2C) provides that, as an exhaustive statement of the requirements of the natural justice hearing rule, the relevant provisions do not require the Tribunal to observe any principle or rule of common law relating to the matters the relevant provisions deal with.

Item 152: Subsection 357A(3)

Terminology changes

612. This item amends terminology. See explanation of general terminology changes above.

Item 153: After subsection 358 to 359AA

Repealing provisions no longer necessary

613. This item repeals sections 358, 359 and 359AA. Existing section 358 provides for documents that may be given to the Tribunal by an applicant. Existing section 359 permits the Tribunal to obtain additional information. These sections have been repealed, and the Tribunal's general powers and procedures (other than those the Migration Act provisions disapply, apply instead of or apply contrary to), will apply in relation to these matters. This includes clause 79 (Tribunal may give directions in relation to procedure for proceeding) of the ART Bill, which now apply during the review of migration and protection decisions.

614. Existing section 359AA provides for the giving of the information in the manner the Tribunal considers most appropriate in the circumstances, whether it be in writing or orally. The repeal of section 359AA is intended to make the requirements relating to conduct of the review on the Tribunal less prescriptive, facilitating the effective and efficient management of migration reviews.

Item 154: Section 359A (heading)

Updating heading

615. This item replaces the reference to 'Tribunal' to clarify the section applies in relation to the actions and decisions of the ART. The reference to 'in writing' is omitted as new section 359A applies to the giving of information both in writing and orally by the ART.

Items 155 and 156: Subsection 359A(1), Paragraph 359A(1)(a)

Updating legislative references

616. These items provide updates consequential to the repeal of subsection 359A(3) by item 159, and replace references to 'Tribunal' to clarify section 359A applies in relation to the actions of the Tribunal.

Item 157: Paragraph 359A(1)(c)

Repealing provisions no longer necessary

617. Section 359A is an exhaustive statement of the requirements of the natural justice hearing rule in relation to how the Tribunal gives information to an applicant and allows them to comment on it. The section covers information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review. As provided for by 357A(2C) (inserted by item 151 of this Schedule), the Tribunal is not required to observe any principle or rule of common law relating to the matters covered by this section.

618. The omission of 'or respond to' is intended to clarify the operation of the section. This amendment makes clear that comments, including considered remarks or observations are invited and required, not merely a non-engaging answer or reply to the information in the invitation.

619. Noting that section 359C (which would have allowed the AAT to proceed to a decision once an applicant had had the opportunity to 'comment or respond') will be repealed by item 163, once the Tribunal has provided the information to the applicant with the opportunity to comment, the Tribunal's ordinary procedures for managing a proceeding would apply. Where a party has received information in accordance with this section, the Tribunal is not required to take any other steps to advise the applicant of the case against them.

620. The amendment will clarify that the Tribunal may proceed with the review if the applicant does not reply to the invitation, or replies in a way that does not substantively engage with the issues contained in the information put to them in the invitation.

Item 158: Subsection 359A(2)

Information and invitation given by ART

621. This item amends subsection 359A(2) to provide that if the information and invitation is given in writing, it must be given using a method specified in the subsection. The intention is that the information and invitation required in subsection 359A(1) may be given in writing or orally, and the subsection only applies if it is given in writing.

Item 159: Subsection 359A(3)

Repealing provisions no longer necessary

622. This item repeals subsection 359A(3) and is consequential to the repeal of section 359AA.

Item 160: At the end of subsection 359A(4)

Insert paragraphs

623. This item inserts new paragraphs to provide that the Tribunal's obligations to provide information as set out in this section do not apply to information set out in paragraph (d), or such further types as may be specified in the regulations. New paragraph 359A(4)(d) refers to information 'that was included, or referred to, in the written statement of the decision that is under review'.

624. This paragraph provides that the Tribunal is not required to give to the applicant information that was included or referred to in the written statement of the decision that is under review, even if the information is information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. As applicants are provided with written statements of decisions under the Migration Act, it is reasonable that they are aware of its contents without requiring the Tribunal to proactively draw matters to their attention.

Item 161: After subsection 359A(4)

Insert subsection

625. This item inserts new subsection 359A(4A) which provides that the Tribunal is not required to give particulars of information mentioned in subsection 359A(4) before making a decision under clause 105 of the ART Bill (Tribunal decision on review of reviewable decision) or section 349 (Remittal, inserted by item 136). This clarifies that the Tribunal is not required to give the information covered by subsection (4) to the applicant and allow comment before it makes a final decision on the application (whether or not the decision is to affirm the decision under review).This is intended to put it beyond doubt that the Tribunal is not required to put information covered in subsection 359A(4) to the applicant, at all before making its decision. This provision is intended to exhaustively displace the common law rules of the natural justice hearing rule in relation to this matter.

Item 162: Subsection 359A(5)

Updating legislative references

626. This item updates the reference to subsection 362B(1F), which is repealed by item 166, so that it refers to subsection 368C(6), which is inserted by item 171. The amendment is technical in nature, and ensures that subsection 359A(5) continues to operate in substantively the same way in the Tribunal.

Item 163: Sections 359B to 362

Repealing provisions no longer necessary

627. This item repeals sections 359B to 362. These existing sections contain substantive procedural requirements which form components of the exhaustive statement of the natural justice hearing rule. These requirements are being repealed to enable the Tribunal to undertake a flexible conduct of review, proportionate to the matters before it. Instead of requiring the Tribunal to comply with the procedures set out in these provisions, the standard powers and procedures set out in the ART Bill will apply.

Items 164 and 164A: Subsection 362A(1), after Subsection 362A(1)

Repeal and substitute subsection

628. These items amend current section 362A, which provides that an applicant is entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.

629. New subsection 362A(1) provides the applicant is entitled to request the Department provide access to any written material, or a copy of any written material, given or produced by the Department to the Tribunal for the purposes of the review.

630. Rather than requests being made to the Tribunal, applicants will be able to request the Department to provide a copy of the written material it gave or produced to the Tribunal for the purposes of the review.

631. New subsection 362A(1A) provides that, if an applicant makes a request under subsection 362A(1), the Department must provide the applicant with access to the material.

632. Currently, there is no equivalent to section 362A in Part 7. This amendment will enable applicants in proceedings relating to a protection review decision to request the Department to provide a copy of the written material it gave or produced to the Tribunal for the purposes of the review, because it is not limited to proceedings related to migration review decisions.

Item 165: Subsection 362A(3)

Terminology changes

633. This item replaces the reference to 'Tribunal' to clarify the section applies in relation to the actions and decisions of the ART.

Item 166: Sections 362B and 362C

Repealing provisions no longer necessary

634. This item repeals sections 362B and 362C. Existing section 362B deals with the failure of an applicant to appear at a scheduled hearing. It provides a procedure for dismissal, and reinstatement, of matters in circumstances where an applicant fails to appear. Current section 362C contains procedural requirements where the Tribunal makes a 'non-appearance' decision.

635. These provisions are no longer required because the Tribunal may dismiss an application if the applicant fails to appear at a case event under clause 99 of the ART Bill. This provision will apply to reviews of reviewable migration and protection decisions. Procedural requirements for certain dismissal decisions will be set out in new sections 368B and 368C.

Item 167: Section 363

Repeal and substitute section

636. This item repeals section 363 to reflect powers of the Tribunal that are set out in the ART Bill:

•

subparagraph 363(1)(a) and subsection 363(3) are no longer necessary, as clauses 74 and 76 of the ART Bill provide for the Tribunal to summon a person to give information or produce documents, and to take evidence on oath or affirmation

•

subparagraph 363(1)(b) is no longer necessary, as clause 82 of the ART Bill enables the Tribunal to adjourn proceedings from time to time

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subparagraph 363(1)(c) is no longer necessary, as clauses 290 and 291 of the ART Bill set out the arrangements for the giving of documents by the Tribunal, as adjusted by Divisions 5 and 7 of the Migration Act

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subparagraph 363(1)(d) is relocated to section 353, by item 148

•

subsection 363(4) is no longer necessary, as clause 75 of the ART Bill permits the Tribunal to take evidence, including on oath or by affirmation, inside or outside Australia.

Reviews may be combined

637. Existing subsection 363(2) is retained and combined with the identical provision at sub section 427(2) for Part 7 reviewable decisions. This power allows the ART to combine multiple properly made review applications in respect of the one individual in a single review.

Item 168: Sections 363A to 366C

Repealing provisions no longer necessary

638. This item repeals these sections.

639. Repeal of existing section 363A reflects that the Tribunal may progress a review in accordance with the ART Bill, subject to any contrary provisions in this schedule.

640. Section 364 (Tribunal's power to take evidence) is repealed, with the Tribunal's standard power under clause 75 of the ART Bill to applying.

641. Section 365 (Review to be in public) is repealed, with the Tribunal's standard provisions under clauses 69 of the ART Bill to applying, subject to item 170 which requires the Tribunal to hold reviewable protection decision hearings in private.

642. Section 366 (Oral evidence by telephone etc.) is repealed and is no longer necessary. The ART Bill supports in-person and virtual participation in Tribunal case events, hearings and other activities.

643. Section 366A (Applicant may be assisted by another person while appearing before Tribunal) and Section 366B (Other persons not to be assisted or represented while appearing before Tribunal) is repealed, with the Tribunal's ordinary powers for managing the representation and assistance of parties (set out in Subdivision B of Division 5 of the ART Bill) applying.

644. Section 366C (Interpreters) is repealed in the Migration Act, with the equivalent provision in clause 68 of the ART Bill applying.

Item 168A: Subsections 366D

Terminology changes

645. This item amends terminology. See explanation of general terminology changes above.

Item 169: Subsections 367(1) and (2)

Terminology changes

646. This item amends terminology. See explanation of general terminology changes above.

Item 170: At the end of Part 5 of Division 5

Insert sections

647. This item inserts new sections 367A and 367B to replace existing sections 423A and 429 respectively. These amendments are consequential to the harmonisation of Parts 5 and 7.

648. The new section 367A replicates the effect of existing section 423A of the Migration Act in relation to how the Tribunal is to deal with new claims or evidence in reviews of a reviewable protection decision. This section is connected to the operation of section 5AAA of the Migration Act, which requires non-citizens to provide and substantiate claims on which they are seeking protection. New section 367A complements this responsibility, and requires the Tribunal to draw an inference unfavourable to the credibility of new claims or evidence provided to the Tribunal if the applicant does not have a reasonable explanation to justify why the claims were not raised or the evidence was not presented before the primary decision was made on their protection visa application.

649. Section 367A is intended to ensure that applicants raise all claims relevant to their visa application, and present all evidence, upfront, to ensure that the decision made by the Department of Home Affairs can be as efficient and effective as possible.

650. New section 367B replicates the effect of existing section 429 of the Migration Act, which requires hearings in reviewable protection decision proceedings to be held in private (displacing clause 69 of the ART Bill). A note follows to clarify that clause 69 of the ART Bill, which provides that hearings are generally to be in public, applies to reviewable migration decision proceedings. It is appropriate, and necessary, given the nature of protection claims that they are heard in private to protect the identity and safety of the review applicant and any family members or friends who may have remained in the country from which the review applicant has claimed fear of persecution or harm.

Item 171: Division 6 of Part 5

Division 5 – ART decisions

651. This item repeals all of existing Division 6 - Part 5-reviewable decisions: Tribunal decisions, and substitutes it with the new Division 5 - ART decisions. The new Division 5 reflects the restructure of Part 5 to incorporate provisions relating to reviewable protection decisions, and the repeal of Part 7 by item 228.

652. Each section in this Division refers to the equivalent or relevant provisions of the ART Bill to indicate where provisions apply instead of, in addition to, or contrary to those provisions. The new Division 5 of Part 5 applies to a review of a reviewable migration or protection decision by the ART.

Section 368 – ART's decision and written statement etc.

653. New section 368 specifies how the Tribunal's decision is to be made, with certain requirements on what must be included. It retains elements of existing sections 368 and 430, including: the requirement to make a written statement, the content requirements of the written statement, that a decision (once made) cannot be changed, when a decision is taken to be made and providing that the validity of a decision on a review is not affected by procedural irregularities. Requirements to include the date and time of written statements, and make a record of the date and time when oral decisions are made are also being retained. The retention of those elements provides certainty about when the Tribunal decision is final – in particular new subsections 368(5), (6) and (7). That certainty is necessary to ensure it is clear when an application is 'finally determined' under the Migration Act.

654. New subsections 368(3) and 368(4) retain the effect of existing section 368D which allows the Tribunal to give an oral decision before providing the written statement. The time of the decision is the time and day that the oral decision is given.

655. New subsection 368(8) retains the effect of subsections 368(4) and 430(4), preserving the validity of Tribunal decisions, notwithstanding deficiencies in recording the time and day the decision was made.

656. New subsection 368(9) provides that new section 368 applies despite clauses 111 (notice of decision and statement of reasons - review of reviewable decision) and 112 (notice of decision and statement of reasons - other proceedings) of the ART Bill. The Migration Act provisions prevail as they provide the heightened requirements around the time and date of decisions, which are essential to meet the need for certainty about when a decision on a review of these decisions is final for a migration review decision or a protection review decision.

Section 368A – Notification of ART's decision

657. New section 368A specifies how parties are to be notified of the Tribunal's decision. It replaces current sections 368A, paragraph 368D(2)(b) and subsection 368D(4) as well as current Part 7 equivalent sections (sections 430D(2)(b) and (4)).

658. The new section retains elements of the existing provisions including that the review applicant and the Secretary must be notified of the Tribunal's decision by giving them a copy of the written statement made under subsection 368(1) within 14 days after the day on which the decision is taken to have been made and that the validity of the decision on a review will not be impacted by any failure to comply with section 368A.

659. Subsections 368D(4) and 430D(4) are not retained, as new subsection 368(1) requires a written statement to always be provided for a decision on a review of a migration review decision or a protection review decision. The applicant will not need to request a written statement as currently provided under these provisions.

660. New subsection 368A(5) provides that new section 368A applies despite subclause 111(3) and clause 112 of the ART Bill. The effect of this is to shorten the timeframe in which notification must be given (14 days in the Migration Act, as opposed to 28 days under the ART Bill).

Section 368B – Notice of dismissal and reinstatement decisions and when taken to have been made

661. New section 368B of the Migration Act provides the requirement for the Tribunal to notify parties of a decision to dismiss an application for review of a migration and protection reviewable decision under the ART Bill or to reinstate, or not reinstate, an application for review of a migration and protection reviewable decision under new section 368C.

662. Subsection (2) provides that the Tribunal must make a written statement of its decision setting out the day and time the decision is made.

663. Subsection (3) provides that the decision is taken to have been made at the time and on the day the written statement was made. Subsection (4) provides that the Tribunal cannot vary or revoke the statement once it has been made.

664. Subsections (5) and (6) require that the written statement must be given to the applicant and Secretary within 14 days after it is taken to have been made.

665. Subsection (7) provides that the validity of the decision is not affected by any procedural irregularities in the written statement or provision of notice.

666. Subsection (8) provides that section 368B applies despite clause 112 of the ART Act. The effect of this is to shorten the timeframe in which notification must be given (14 days in the Migration Act, as opposed to 28 days under the ART Bill).

Section 368C – Reinstatement of application or confirmation of dismissal

667. New Section 368C sets out the reinstatement powers and procedures for dismissals of applications relating to reviewable migration or protection decisions. The requirements are broadly replicated from existing sections 362B and 426A, with updated terminology and references to the relevant provisions in the ART Bill.

668. This section applies instead of clause 102 of the ART Bill (subclause (1)). This is to ensure that the reinstatement powers operate consistently with the relevant visa frameworks.

669. If the Tribunal dismisses an application for review, the applicant may apply for reinstatement of the application within 28 days of being notified of the dismissal (subclause (2)).

670. The types of Tribunal dismissal decisions for which a reinstatement application may be made are those made under:

•

clause 99 of the ART Bill for reason of the applicant's non-appearance (based on existing section 362B of the Migration Act)

•

clause 100 of the ART Bill on the basis of the applicant failing to proceed with the application or comply with an order of the Tribunal, and

•

clause 101 of the ART Bill where the Tribunal is satisfied that the application is frivolous, vexatious, misconceived or lacking in substances.

671. Subsection 368C(2) reflects a policy change to adopt the standard 28-day period after receiving the dismissal notice for an applicant to seek a reinstatement. This is a strict timeframe and cannot be extended. This is to ensure the procedures for reinstatement operate consistently with the 'finally determined' framework and support clarity in relation to a person's visa status.

672. Consistent with the note following existing subsection 362B(1B), the note under subsection (2) refers readers to section 379C setting out when a person is taken to have received a document from the Tribunal for the purposes of this Part.

673. Subsections 368C(3) to (7) are based on existing subsections 362B(1C) to (1G), and they are replicated with some minor simplification of language, updated terminology and cross-references, and to reflect the 28-day period for seeking reinstatement. The Tribunal, on application for reinstatement under subsection (2), must decide whether to reinstate the application or confirm the dismissal (subclause (3)). If the Tribunal reinstates the application, it is taken to never have been dismissed (subclause (4)). If no application for reinstatement has been received within 28 days, the Tribunal must confirm the dismissal (subclause (5)). The decision under review is taken to be affirmed if the Tribunal confirms the dismissal (subclause (6)).

Section 369 - Identity information not to be published

674. Section 369 replicates existing section 431 with updated terminology and alters clause 113 of the ART Bill, to clarify that the Tribunal is not to publish information relating to reviewable 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 and safety of the review applicant and any family members or friends who may have remained in the country from which the review applicant has claimed fear of persecution or harm.

Item 172: Division 7 of Part 5

Repealing provisions no longer necessary

675. This item repeals Division 7, allowing the standard arrangements under clauses 115 and 116 of the ART Bill to apply for offences and penalties relating to a failure to comply with summons, and refusal to take an oath or affirmation or to answer questions.

Item 173: Division 8 of Part 5 (heading)

Updating heading

676. This item amends the heading of what is now Division 6 to reflect the restructure of Part 5 to incorporate provisions relating to reviewable protection decisions, and the repeal of Part 7 by item 228.

Item 174: Before section 375

Insert section

677. This item adds new section 374 to Division 6 of Part 5.

678. Section 374 sets out notification requirements for Tribunal case events and directions in a proceeding for review of reviewable migration or protection decision.

679. Subsection 374(1) provides that, where the Tribunal gives written notice to the applicant of a case event under subclause 72(1) of the ART Bill, it must do so by a method in section 379A, or, if the applicant is in immigration detention, as prescribed in the regulations. Tribunal case events include hearings, directions hearings and dispute resolution processes (as defined in clause 4 of the ART Bill).

680. Subsection 374(2) sets out the same requirements for giving to the applicant Tribunal directions in relation to the procedure to be followed for a review proceeding. That is, it must give the direction in writing to the applicant by a method in section 379A, or, if the applicant is in immigration detention, as prescribed in the regulations. The kinds of directions that the Tribunal can make are set out in subclauses 79(2) to (4) of the ART Bill. For example, a direction order may require the applicant to give information or documents, to give a statement of matters or contentions, or the direction may limit the giving of evidence or the making of submissions.

681. This section ensures applicants are informed of upcoming Tribunal case events and proceeding procedures. The specified notification methods give applicants consistent opportunity to attend the events and to meet direction orders for a proceeding. Under the ART Bill, an application for review may be dismissed if the applicant fails to attend a case event. The Tribunal must be satisfied before dismissing an application for failure to appear that the applicant received appropriate notice of the case event. This section sets out what appropriate notice constitutes in the context of proceedings for review of reviewable migration and protection decisions.

Item 175: Section 375

Restrictions on disclosure of certain information

682. The section is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters that the section deals with, in accordance with subsection 357A(2). The section prohibits the Secretary from giving a document or information, if the Minister has certified that its disclosure would be contrary to the public interest.

683. This item amends the section to ensure that this section on disclosure restrictions takes precedence over the ART Bill, as well as other provisions in the Migration Act. That is, it applies despite anything in the ART Bill or the Migration Act.

Item 176: Section 375

Terminology changes

684. This item replaces the reference to the 'Tribunal' to the 'ART' so that the provision continues to apply in the same way in relation to the new Tribunal. See explanation of general terminology changes above.

Items 177 and 178: Section 375A (heading), Paragraph 375A(1)(a) and (b)

Terminology changes

685. Section 375A sets out that certain information may be disclosed to the Tribunal. The section is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters that the section deals with, in accordance with subsection 357A(2).

686. These items amend terminology. See explanation of general terminology changes above.

Items 179 and 180: Subsection 375A(2)

Updating subsection

687. These items amend subsection 375A(2) to recognise that the Secretary may be required under the ART Bill (as well as under a provision in this Act) to provide a document or information to the Tribunal. The Secretary is required to notify the Tribunal that the document or information is of the type specified in subsection 375A(1), and the Tribunal must ensure the disclosure of that document or information is limited to members of the Tribunal as constituted for the purposes of the review.

688. These items also amend terminology. See explanation of general terminology changes above.

Item 181: Paragraph 375A(2)(a)

Terminology changes

689. This item amends terminology. See explanation of general terminology changes above.

Item 182: Paragraph 375A(2)(b)

Terminology changes

690. This item amends terminology. See explanation of general terminology changes above.

Items 183 and 184: Section 376 (heading), Subparagraph 376(1)(a)(ii)

Terminology changes

691. This item amends terminology. See explanation of general terminology changes above.

Item 185: Subsection 376(2)

Updating subsection

692. This item amends subsection (2) to recognise that the Secretary may be required under the ART Bill (as well as under a provision in this Act) to provide a document or information to the Tribunal, as some procedures in the ART Bill will apply in relation to reviews of reviewable migration and protection decisions. The Secretary is required to notify the Tribunal that the document or information is of the type specified in subsection (1), and may advise the Tribunal of its significance.

693. Section 376 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters that the section deals with, in accordance with subsection 357A(2).

Items 186 and 187: Subsection 376(2), Subsection 376(3)

Terminology changes

694. These items amend terminology. See explanation of general terminology changes above.

Item 188: Section 378

Repeal and substitute section

695. This provision is replaced as the existing section 378 is no longer necessary. Clause 70 of the ART Bill will apply to allow the Tribunal to restrict the publication or disclosure of information after considering the relevant principles in clause 71 of the ART Bill.

Section 378 - Protected information and documents

696. This item repeals and replaces section 378. It applies despite clause 274 of the ART Bill (Protected information and documents), to extend the restrictions on the production or disclosure of documents or information, to include production or disclosure to a parliament. The section relies on the definitions of entrusted person, protected document and protected information in the ART Bill. The intent is to provide additional protection to the privacy and safety of persons involved in reviewable protection decisions.

Item 189: Division 8A of Part 5 (heading)

Updating heading

697. This item amends the heading of what is now Division 7 to reflect the restructure of Part 5 to incorporate provisions relating to reviewable protection decisions, and the repeal of Part 7 by item 228.

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 the natural justice hearing rule in relation to the matters that it deals with, in accordance with subsection 357A(2).

Item 190: Section 379AA (heading)

Updated heading

699. This item changes the heading to clarify that it applies in relation to the actions of the ART, and omits pinpoint references within the Act to reflect modern drafting practices.

Item 191: Paragraph 379AA(1)(a)

Requirements on the Tribunal giving documents

700. Section 379AA applies to documents given to a person by the Tribunal, as required or permitted by a provision in the Migration Act or Migration Regulations. This item amends paragraph 379AA(1)(a) to update the terminology, and to recognise that the Tribunal may also be required or permitted under a provision of the ART Bill, as altered by the Migration Act, to give a document to a person.

701. Where the method of giving the document is not specified, the Tribunal may give that document to the person by any method that it considers appropriate, which may be one of the methods mentioned in subparagraphs 379AA(1)(b)(i) or (ii), being a method specified in section 379A or a method prescribed for the purposes of giving documents to a person in immigration detention.

702. If the Tribunal gives a document by a method prescribed in section 379A, section 379C is invoked to determine the time when the document is taken to have been received.

Item 192: Paragraph 379AA(1)(a)

Giving documents by the Tribunal

703. This item amends the paragraph to clarify that subsection 379AA applies to the giving of documents by the Tribunal to persons other than the Secretary. A similar change is made to section 379A by item 200. These changes give effect to the intent for the Migration Act to set out how the Tribunal gives documents to a person, while the standard procedures in the ART Bill (including practice directions) will apply in relation to the giving of documents by the ART to the Secretary (see items 196, 215 and 219).

Item 193: Subparagraph 379AA(1)(b)(i)

Repealing provisions no longer necessary

704. This item is consequential to the repeal of section 379B by item 215 and removes the reference to section 379B.

Item 194: Subsection 379AA(1)

Terminology changes

705. This item amends terminology. See explanation of general terminology changes above.

Item 195: Subsection 379AA(1) (note 2)

Terminology changes

706. This item amends terminology. See explanation of general terminology changes above.

Item 196: At the end of subsection 379AA(1)

Insert note 3

707. This item inserts a new note to clarify that practice directions apply to the requirements for giving documents to the Secretary. Clause 36 of the ART Bill enables the President to make practice directions on matters such as the operations and procedures of the Tribunal.

Items 197 and 198: Subsection 379AA(2) and subsection 379AA(3)

Terminology changes

708. This item amends terminology. See explanation of general terminology changes above.

Item 199: At the end of section 379AA

Insert subsection and note

709. This item inserts a new subsection extending the operation of subsection 379AA(1) to provisions in the ART Bill which enable the Tribunal to make an order. In effect, this means that if the Tribunal makes an order under a provision in the ART Bill, the Tribunal may give to a person a document that is a written record of the order. The Tribunal may give that document to the person by any method that it considers appropriate, which may be one of the methods mentioned in subparagraphs 379AA(1)(b)(i) or (ii), and thereby ensuring the deemed receipt provisions in section 379C of the Migration Act and the Migration Regulations apply.

Item 200: Section 379A (heading)

Methods by which Tribunal gives documents to a person

710. This item changes the heading with a terminology update and removes wording that is no longer necessary.

711. These changes give effect to the intent for the Migration Act to set out how the Tribunal gives documents to a person, while the standard procedures in the ART Bill (including practice directions) will apply in relation to the giving of documents by the Tribunal to the Secretary (see items 196, 215 and 219).

Items 201, 202 and 203: Paragraph 379A(1)(a), paragraph 379A(1)(b), subsection 379A(1A)

Terminology changes

712. This item amends terminology. See explanation of general terminology changes above.

Item 204: Paragraph 379A(1A)(b)

Terminology changes

713. This provision updates terminology consequential to amendments made by item 122, which repeal the definitions of 'member' and 'officer of the Tribunal', and item 4, which insert the new defined terms ART member and ART Principal Registrar to reflect the organisation structure of the Tribunal.

714. The subsection clarifies that besides an ART member and ART Principal Registrar, a member of the staff of the Tribunal may also decide that an individual can be given the documents in place of a minor.

715. This item introduces 'ART official' as a collective term to simplify referencing.

Item 205: Subsection 379A(1A) (note)

Terminology changes

716. This item amends terminology. See explanation of general terminology changes above.

Item 206: Subsections 379A(2) and (3)

Terminology changes

717. This item makes changes consequential to amendments made by item 122, which repeals the definitions of 'member' and 'officer of the Tribunal'. The provisions as amended reflect the organisational structure of the Tribunal, and allow an ART official (as defined at item 204) or a person authorised by the ART Principal Registrar to hand the document to the recipient or another person as specified.

718. Clause 282 of the ART Bill sets out that an authorised person must comply with any direction given by the President, in performing or exercising a function or power of the Tribunal.

Item 207: Paragraph 379A(3)(a)

Terminology changes

719. This item amends terminology. See explanation of general terminology changes above.

Item 208: Subsection 379A(4)

Terminology changes

720. This item makes changes consequential to amendments made by item 122 which repeal the definitions of 'member' and 'officer of the Tribunal'. The change allows an ART official (as defined at item 204) to date and dispatch the document to the recipient as specified.

Item 209: Subparagraphs 379A(4)(c)(i) and (ii)

Terminology changes

721. This item amends terminology. See explanation of general terminology changes above.

Items 210 and 211: Subparagraph 379A(4)(c)(iii) and subsection 379A(5)

Terminology changes

722. These items make changes consequential to amendments made by item 122 which repeals the definitions of 'member' and 'officer of the Tribunal'. The amended provisions allow the document to be dispatched to the last address for a carer of the minor known by an ART official (as described at item 204), and allow an ART official to transmit the document by fax, email or other electronic means as specified.

Item 212: Paragraph 379A(5)(d)

Terminology changes

723. This item amends terminology. See explanation of general terminology changes above.

Item 213: Paragraph 379A(5)(e)

Terminology changes

724. This item makes changes consequential to amendments made by item 122 which repeal the definitions of 'member' and 'officer of the Tribunal', and allows the document to be transmitted to the last fax number, email address or other electronic address, as the case may be, for a carer of the minor, that is known by an ART official (as described at item 204).

Item 214: Subsection 379A(6)

Terminology changes

725. This item amends terminology. See explanation of general terminology changes above.

Item 215: Section 379B

Standard Tribunal procedures to apply

726. This item repeals the existing section 379B which provides for how the Tribunal is to give documents to the Secretary of Home Affairs. The effect of repealing this provision is that the standard procedures for giving documents to a decision-maker under the ART Bill (that is, clause 291 will apply instead).

Items 216, 217 and 218: Section 379C (heading), subsections 379C(1) to (5), and Subsection 379C(7)

Terminology changes

727. These items amend terminology. See explanation of general terminology changes above.

Item 219: Section 379D

Standard Tribunal procedures to apply

728. This item repeals the existing section 379D which provides for when the Secretary of Home Affairs is taken to have received a document from the Tribunal when using a method specified in the current section 379B. This provision is no longer necessary consequential to the repeal of section 379B (see item 215).

Items 220 and 221: Section 379EA (heading), Section 379EA (note 1)

Terminology changes

729. These items amend terminology. See explanation of general terminology changes above.

Item 222: Section 379F

Standard Tribunal procedures to apply

730. This item repeals the existing section 379F which sets out that a person is to give a document or a thing to the Tribunal by giving the document or thing to an officer of the Tribunal, or in accordance with the President's directions in the AAT Act or the Migration Regulations. The effect of repealing this provision is to provide for the standard procedures in clause 290 of the ART Bill for giving a document or thing to the Tribunal to apply.

Item 223: Paragraph 379G(1)(a)

Terminology change

731. This item amends terminology and is consequential to the repeal of the defined term 'Part 5-reviewable decision' by item 10, and also reflects that Part 5 applies to reviews of a reviewable migration decisions and reviewable protection decisions by the Tribunal.

Items 224: Subsection 379G(1)

Terminology changes

732. This item amends terminology. See explanation of general terminology changes above.

Item 225: Paragraph 379G(1A)(a)

Updating legislative references

733. This item reflects the consolidation of Parts 5 and 7, and that existing section 347 of the Migration Act has been restructured into 347 and 347A. The provision clarifies the intent that subsection 379G(1) of the Migration Act applies to an application for a review of a reviewable migration or protection decision that has not been properly made according to sections 347 and 347A.

Item 226: Paragraph 379G(1A)(b)

Updating legislative references

734. This item reflects that existing section 347 of the Migration Act has been restructured into 347 and 347A, and refers to a review application that has not been properly made according to either or both of those sections. The effect of this section is that the Tribunal is required to give documents to an authorised recipient, including notification that the review application was not properly made.

Item 227: Subsections 379G(2) and (5)

Terminology changes

735. This item amends terminology. See explanation of general terminology changes above.

Item 228: Parts 7 and 7AA

Part 7 consolidated into revised Part 5, IAA abolished

736. This item repeals existing Parts 7 and 7AA of the Migration Act, which provided for the review of a Part 7-reviewable decision at the AAT and fast track reviewable decisions at the IAA. These decisions will now be reviewable in the Tribunal under Part 5 as a reviewable protection decision.

737. The harmonisation of the existing Parts 5 and 7 into the new Part 5 reduces the duplication of provisions in the Migration Act to streamline and simplify procedures for the Tribunal and its users.

Item 229: Subsection 474(2) (definition of privative clause decision )

Updating legislative references

738. This item inserts a reference to subsection 474(4A) into the definition of 'privative clause decision' in subsection 474(2) of the Migration Act. This amendment is related to item 231, which inserts new subsection 474(4A).

739. Currently, under 474(2), a privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5). Inserting the reference to subsection 474(4A) into the definition means that decisions mentioned in subsection 474(4A) are not 'privative clause decisions'.

Item 230: Subsection 474(4) (table items 23 and 28)

Repealing provisions no longer necessary

740. Subsection 474(4) contains a table that sets out decisions that are not privative clause decisions. This item repeals existing table items 23 (which refers to Division 7 of Part 5 - Part 5-reviewable decisions: offences) and 28 (which refers to Division 6 of Part 7 - Part-reviewable decisions: offences) from the table. The repeal of these items is consequential to the amendments made by items 172 and 228, which respectively repeal Division 7 of Part 5 and Part 7 (which contains Division 6 of Part 7).

Item 231: After subsection 474(4)

Insert subsection

741. This item inserts new subsection 474(4A) which provides that a referral to the Tribunal of a question of law is not a privative clause decision. The addition of new subsections (4A) and (6) have the effect that referrals of questions of law by the Tribunal to the FCA (see, relevantly, paragraph 185(2)(b) of the ART Bill), are non-privative clause decisions. This is a technical amendment required to enable the Tribunal to refer these questions to the FCA, without otherwise affecting the operation of provisions governing the availability of judicial review of Tribunal decisions on review of reviewable migration and protection decisions. This, combined with clause 185 of the ART Bill, will enable the Tribunal to seek clarity from the FCA on questions of law in proceedings for review of reviewable migration and protection decisions.

Item 232: Subsection 474(5)

Non-privative clause decisions

742. This item inserts a reference to the ART Bill into subsection 474(5) of the Migration Act. Inserting the reference will allow for the regulations to specify that a decision, or a decision included in a class of decisions, under the ART Bill is not a privative clause decision. This allows flexibility to specify ART Bill decisions to be a 'non-privative clause decisions' for the purposes of Part 8 (see subsection 474(6)).

Item 233: Subsection 474(6)

Updating legislative references

743. This item inserts a reference to new subsection 474(4A) into subsection 474(6) of the Migration Act. Inserting the reference to subsection 474(4A) into subsection 474(6) means that decisions mention in subsection 474(4A) are 'non-privative clause decisions' for the purposes of Part 8. The intention is to differentiate decisions mentioned in subsection 474(4A) from decisions mentioned in subsection 474(4) in order to achieve the policy objective set out in item 231. This item also removes the reference to section 474 to reflect modern drafting practices and simplify the language within sections.

Item 234: Subsection 474(6)

Update subsection

744. This item removes the reference to section 474 of the Migration Act to reflect modern drafting practices and simplify the language within sections.

Item 235: Subsection 474(7)

Update subsection

745. This item removes the reference to section 474 of the Migration Act to reflect modern drafting practices and simplify the language within sections.

Item 236: Paragraph 474(7)(a)

Repealing provisions no longer necessary

746. This item removes the reference to '417' in paragraph 474(7)(a) which is no longer required and consequential to the repeal of Part 7 (which contains section 417) by item 228.

Item 237: After Division 1 of Part 8

Division 1A – Interaction with the ART Act

747. This item inserts a new Division 1A (Interaction with the ART Act), containing new section 474AA.

748. New subsection 474AA(1) replicates existing section 43C of the AAT Act. It is intended to maintain current settings in relation to appeals to the FCA (that is, that the only 'migration decisions' in relation to which an appeal under clause 172 of the ART Bill can be made to the FCA are non-privative clause decisions (other than non-privative clause decisions mentioned in new subsection 474(4A)).

749. New subsection 474AA(2) provides that despite subsection (1), referrals under clause 185 of the ART Bill (which is in Part 7 of the ART Bill) will be possible. New paragraph 474AA(2)(b) provides that the Tribunal does not have a duty to consider a request to refer a question of law made by a party to a proceeding. The intention is to enable the Tribunal to refer a question of law to the FCA on its own initiative or at the request of a party to the proceeding. However, if a party requests a referral, new subsection 474AA(2)(b) clarifies that, although the Tribunal may consider the request, the Tribunal does not have a duty to consider the request. In other words, referrals under clause 185 of the ART Bill will be possible at a party's request, but ultimately at the Tribunal's discretion.

750. New subsection 474AA(2A) provides that, if the Tribunal refers a question of law under clause 185 of the ART Bill, whether at the request of a party or on its own initiative, the provisions in the ART Bill in relation to sending and disclosing documents (Division 6 of Part 7 of the ART Bill) will apply.

New subsection 474AA(3) provides that Subdivision A of Division 2 of Part 7 of the ART Bill (appeals on questions of law) does not apply to a decision of the Tribunal under clause 185 of the ART Bill (referring questions of law) in relation to proceedings for review of a reviewable migration decision or a reviewable protection decision. This prevents referral decisions being appealed to the FCA. As a non-privative clause decision (see new subsection 474(4A)), referrals on questions of law would otherwise be captured by subsection 474AA(1) of the Migration Act. However, if the Tribunal refers a question of law to the FCA for decision under section 185 of the ART Bill, there is no need to appeal such a referral. New subsection 474AA(3) ensures that Subdivision A of Division 2 of Part 7 of the ART Bill (appeals on questions of law) does not apply to non-privative clause decisions as defined in new subsection 474(4A) of the Migration Act.

Item 238: Section 474A

Definition of ART Act migration decision

751. This item repeals section 474A of the Migration Act, which sets out the definition of AAT Act migration decision, and substitutes new section 474A which defines ART Act migration decision, incorporating updated terminology and reflecting the organisational structure of the Tribunal. These amendments are technical in nature, and ensure that section 474A continues to operate in the same way in relation to the Tribunal decisions and the limited jurisdiction of the FCA.

752. The existing AAT Act migration decisions table is replicated in new subsection 474A(2) and refers to the equivalent provisions of the ART Bill. The scope and substance of the section is otherwise unchanged. That is, an appeal in relation to an ART Act migration decision cannot be made to the Federal Court, as noted in section 476A of the Migration Act (as amended by items 245 to 247).

Item 239: Paragraph 476(2)(b)

Terminology changes

753. This item amends terminology. See explanation of general terminology changes above.

Item 240: Paragraph 476(2)(c)

754. This item provides that the FCFCOA (Division 2) will not have jurisdiction in relation to a non-privative clause decision mentioned in subsection 474(4A), inserted by item 231, discussed above.

Item 241: Subsection 476(3)

Updating legislative references

755. This item updates legislative references, replacing a reference to the AAT Act with a reference to the equivalent provision in the ART Bill, clause 179. This amendment is technical in nature, and ensures that the effect of section 476 of the Migration Act on the jurisdiction of the FCFCOA (Division 2) in relation to non-privative clause decisions upon transfer of appeals by the FCA continues to operate in substantively the same way.

Item 242: Subsection 476(4) (paragraph (a) of the definition of primary decision )

Updating legislative references

756. This item is consequential to the repeal of Part 7 by item 228, and clarifies that primary decision refers to the particular decisions of the Tribunal on review by application under Part 5 or section 500. Review of a decision is sought by application under Part 5 or section 500. New sections 347 and 347A in Part 5 of the Migration Act, inserted by item 136, set out the requirements for an application to the Tribunal for review of a reviewable migration decision or a reviewable protection decision. Once the application is made, the Tribunal conducts review 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: Subsection 476(4) (paragraph (b) of the definition of primary decision ), Paragraph 476(4)(c)

Repealing provisions no longer necessary

758. These items relate to the removal of paragraph (c) which is no longer necessary consequential to the repeal of Part 7AA by item 228.

Item 245: Paragraph 476A(1)(b)

Terminology changes

759. This item amends terminology. See explanation of general terminology changes above.

Item 246: Paragraph 476A(1)(d)

Updating legislative references

760. This item updates legislative references, replacing references to the AAT Act with references to the equivalent provision in the ART Bill, clause 176 and subclause 185(3). These amendments are technical in nature, and will effectively provide that the FCA has original jurisdiction in relation to a migration decision, if and only if, the FCA has jurisdiction in relation to the decision under clause 176 or 185(3) of the ART Bill. Clause 176 applies to appeals on questions of law and subclause 185(3) applies to referrals on questions of law.

761. A migration decision is defined in the Migration Act to mean: a privative clause decision, a purported privative clause decision, non-privative clause decision, or an AAT Act migration decision. In relation to appeals, the FCA will have jurisdiction in respect of non-privative clause decisions (other than non-privative clause decisions mentioned in subsection 474(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 migration decision (see new subsection 474AA(2) and 474AA(4)).

Item 247: Subsection 476A(1) (note)

Terminology changes and updating legislative references

762. This item substitutes the note under subsection 476A(1) of the Migration Act. Paragraph 476A(1)(d) (as amended by item 246) provides that the FCA has original jurisdiction in relation to a migration decision if, and only if, the FCA has jurisdiction in relation to the decision under clause 176 (Federal Court has jurisdiction) or subclause 185(3) (referring questions of law) of the ART Bill.

763. The substituted note clarifies that the FCA's jurisdiction referred to in paragraph 476A(1)(d) of the Migration Act is limited, for example, by section 474AA.

Item 248: Subsection 477(3) (definition of date of the migration decision )

Updating definitions

764. Section 477 sets out time limits on applications to the FCFCOA (Division 2), with reference to the date of the migration decision.

765. This item repeals and substitutes the definition, updating legislative references, replacing reference to the AAT Act with reference to the equivalent provision in the ART Bill, clause 105.

766. Existing paragraph 477(3)(a) is retained with updates to cover migration decisions made under the ART Bill apart from those made in relation to an application under Part 5. Existing paragraphs 477(3)(b) and (c) are combined in a new paragraph 477(3)(b) to reflect the consolidation of Part 5 and Part 7. Paragraph 477(3)(ca) is no longer necessary consequential to the repeal of Part 7AA by item 228, while paragraph 477(3)(d) is replicated under new paragraph 477(3)(c).

Items 249, 250, 251, and 252: Paragraph 478(a), Paragraph 478(aa) Paragraph 479(a), and Paragraph 479(aa)

Updating legislative references

767. These items are consequential to the repeal of Part 7 and Part 7AA by item 228.

768. Paragraphs 478(a) and 479(a) are both replaced with updated terminology. Review of a decision is sought by application under Part 5 or section 500. New sections 347 and 347A in Part 5 of the Migration Act, inserted by item 136, set out the requirements for an application to the Tribunal for review of a reviewable migration decision or a reviewable protection decision. Once the application is made, the Tribunal conducts review of decisions in accordance with provisions of the ART Bill, subject to any contrary provisions in the Migration Act.

769. Paragraphs 478(aa) and 479(aa) are no longer necessary consequential to the repeal of Part 7AA by item 228, and are therefore repealed.

770. These changes do not affect the operation of these provisions.

Item 253: Subsection 486D(5) (definition of tribunal decision )

Terminology changes and updating legislative references

771. This item omits the reference to '7'and the reference to 'Immigration Assessment Authority' from the definition of 'tribunal decision'. These omissions are consequential to the repeal of Part 7 and Part 7AA by item 228. Reviews are by application under Part 5 or section 500. New sections 347 and 347A in Part 5 of the Migration Act, inserted by item 136, set out the requirements for an application to the Tribunal for review of a reviewable migration decision or a reviewable protection decision. Once the application is made, the Tribunal conducts review of decisions in accordance with provisions of the ART Bill, subject to any contrary provisions in the Migration Act.

772. The definition will continue to provide that tribunal decision means a privative clause decision, or purported privative clause decision made on review by the Tribunal by application under Part 5 or section 500.

Item 253A: Paragraph 494B(5)(d)

Method by which Minister gives documents to a person

773. This item amends paragraph 494B(5)(d) of the Migration Act to clarify that, where the Minister gives documents to a person by the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents, it needs to be a fax number, email address or other electronic address provided to the Minister by the recipient.

774. This item clarifies that transmitting a document to the last contact information provided to the Minister by a person other than the recipient is not a method by which the Minister can give documents to the recipient under paragraph 494B(5)(d). This is consistent with the other requirements in section 494B (for example, in subparagraphs 494B(4)(c)(i) and (ii). This item also clarifies that the Tribunal is not required to provide any updated contact information to the Department, following any review, and that the applicant is required to update the Department with that information for the purpose of receiving documents. It removes doubt as to whether contact information (including a new email address) provided to the Tribunal during a review would need to be used in future notifications by the Department, and ensures that the contact information relied upon by the Minister to transmit documents to a recipient is that identified by the recipient themselves to the Minister.

Item 254: Subsection 500(1)

Terminology changes

775. This item substitutes the wording in subsection 500(1) to reflect modern drafting practices, and to update terminology by replacing the reference to the AAT with a reference to the ART.

Item 255: Subsection 500(1) (note)

Repealing provisions no longer necessary

776. This item removes the note which is no longer necessary consequential to the repeal of existing Part 7AA (which contains the fast track review provisions) by item 228.

Item 256: After Subsection 500(1)

Altering Tribunal's remittal powers

777. This item inserts new subsection 500(1A) which provides that clause 85 of the ART Bill does not apply in relation to a review by the Tribunal of a decision referred to in subsection 500(1) of the Migration Act. Under clause 85 of the ART Bill the Tribunal may remit a decision to the decision-maker for reconsideration and, after reconsideration by the decision-maker, the proceedings in the Tribunal are resumed. Clause 85 of the ART Bill does not apply because the intention is that, in respect of decisions referred to in subsection 500(1), only clause 105 of the ART Bill is to apply (that is, the Tribunal must review and make the final decision under clause 105 in respect of decisions referred to in subsection 500(1)).

778. In light of the 84-day timeframe and the effect on a review application should that time expire, Clause 85 of the ART Bill has been disapplied to ensure that a matter remains before and in control of the Tribunal for the entirety of this period. This ensures that the review applicant cannot be disadvantaged through any delays caused by the original decision-maker reconsidering a matter.

Item 258: Subsection 500(3)

Altering ART provisions on who can apply

779. Item 258 amends subsection 500(3) consequential to the repeal of Part 7 by item 228, to reflect that reviews are 'by application under Part 5'. New sections 347 and 347A in Part 5 of the Migration Act, inserted by item 136, set out the requirements for an application to the Tribunal for review of a reviewable migration decision or a reviewable protection decision. Once the application is made, the Tribunal conducts review of decisions in accordance with provisions of the ART Bill, subject to any contrary provisions in the Migration Act.

Item 260: Subsections 500(4) and (4A)

Updating legislative references

780. These items are updates consequential to the repeal of Part 7 by item 228 and reflect that review of a decision is sought by application under Part 5. New sections 347 and 347A in Part 5 of the Migration Act, inserted by item 136, set out the requirements for an application to the Tribunal for review of a reviewable migration decision or a reviewable protection decision. Once the application is made, the Tribunal conducts review of decisions in accordance with provisions of the ART Bill, subject to any contrary provisions in the Migration Act.

781. These updates do not affect the operation of the provisions and the decisions listed in subsection 500(4) or 500(4A) are not reviewable by the Tribunal.

Item 261: Subsection 500(6)

Terminology changes

782. This item amends terminology. See explanation of general terminology changes above.

Item 262: Paragraph 500(6)(a)

Terminology changes and updating legislative references

783. This item replaces the paragraph to clarify that it applies in relation to an order made by the Tribunal, such as a stay order under subclause 32(2) of the ART Bill.

Item 263: Paragraph 500(6)(c)

Updating legislative references

784. This item updates legislative references, replacing a reference to the AAT Act with reference to the equivalent provision in the ART Bill, subclause 178(2). The amendment is technical in nature, and ensures that subsection 500(6) of the Migration Act which refers to the power of the FCA or a Judge of that Court to make an order affecting the Tribunal's decision and the reviewable decision that is the subject of the Tribunal review continues to operate in substantively the same way.

Item 264: Paragraph 500(6)(d)

Updating legislative references

785. This item updates the AAT Act reference to the equivalent provisions in the ART Bill, which refer to the power of the FCFCOA (Division 2) or a Judge of that Court, upon transfers of appeals by the FCA, to make an order affecting the Tribunal's decision and the reviewable decision that is the subject of the Tribunal review.

Item 265: Subsection 500(6A)

Updating legislative references

786. This item updates legislative references, replacing the AAT Act reference with the reference to the equivalent provision in the ART Bill, clause 268. The amendment is technical in nature, and ensures that subsection 500(6A) of the Migration Act continues to disapply the rule in the ART Bill that persons affected by a reviewable decision may request reasons for that decision from the decision-maker.

787. Clause 268 of the ART Bill provides that persons affected by a reviewable decision may request reasons for that decision from the decision-maker. Clause 268 of the ART Bill will not apply to persons who have had their visa applications refused, or visas cancelled, on the basis that they did not pass the character test under section 501 of the Migration Act. This is because subsection 501G(1) already requires written reasons to be provided to the person in those circumstances.

Item 266: Subsection 500(6B)

Terminology changes

788. This item replaces the reference to 'Tribunal' to clarify that an application for review is made to the ART.

Item 267: Subsection 500(6B)

Updating legislative references

789. This item updates legislative references, replacing references to the AAT Act with references to equivalent provision in the ART Bill, clauses 18 and 19. The amendments are technical in nature, and ensures that subsection 500(6B) of the Migration Act continues to disapply the general rule in the ART Bill on time period for lodgement of review applications, and that the Tribunal is precluded from extending the time limit. The time limit for applying for review of decisions under section 501 is nine days from when the person was notified of the decision.

Item 268: Subsection 500(6C)

Terminology changes

790. This item amends terminology. See explanation of general terminology changes above.

Item 269: After subsection 500(6C)

Information to include with applications to the Tribunal

791. This item inserts new subsection 500(6CA) to displace subclause 34(2) of the ART Bill and provide that a review application to the ART for a decision of the type listed must include the documents specified in subsection 500(6C) of the Migration Act.

792. This item also inserts new subsection 500(6CB), which provides that a failure to comply with subsection 500(6C) does not affect the validity of an application to the Tribunal. Subsection 500(6C) requires that, if a decision under section 501, or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be accompanied by, or by a copy of, specified documents. This item has the effect that, if a person makes an application to the Tribunal but fails to comply with this requirement, this does not affect the validity of the application.

793. This item ensures that the Tribunal has jurisdiction to consider an application for review of a decision under section 501, or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa, related to a person in the migration zone, in circumstances where the applicant has failed to provide the information required by subsection 500(6C).

Item 270: Subsection 500(6D)

Review applications relating to a person in the migration zone

794. This item replaces the provision, updating the AAT Act references to the equivalent provisions in the ART Bill, clauses 21 and 23.

795. Paragraph 500(6D)(a) requires the Tribunal to notify the applicant and the Secretary upon an application being made for a review of the specified decisions, consistent with the requirements under Part 5.

796. Paragraph 500(6D)(b) contains updates to AAT Act references and clarifies that the Tribunal's notification obligations under clause 21 of the ART Bill do not apply. Paragraph(b) also disapplies clause 23 of the ART Bill and the decision-maker is not obliged to give the Tribunal reasons and documents for the decision that is the subject of the application.

Items 271 and 272: Paragraphs 500(6F)(a), (c) and (d), Subsection 500(6FA)

Terminology changes

797. These items amend terminology. See explanation of general terminology changes above.

Item 273: After subsection 500(6FA)

Giving additional reasons and documents to the Tribunal

798. This item inserts new subsection 500(6FB) to clarify that provisions of the ART Bill in relation to the decision-maker's obligations to give the Tribunal additional statements of reasons and additional documents on request, do not apply to a review of the specified decisions.

799. Paragraph 500(6F)(c) and subsection 500(6FA) of the Migration Act already provide the Tribunal with the authority to direct the Minister to provide copies of certain documents, and set out the period within which the Minister must comply. Subsection 500(6FB) does not affect the operation or effect of these provisions.

Items 274 and 275: Paragraph 500(6G)(a), Subsection 500(6G)

Terminology changes

800. These items amend terminology. See explanation of general terminology changes above.

Item 276: Subsection 500(6G)(d)

Updating legislative references

801. This item updates legislative references, replacing a reference to the AAT Act to the equivalent provision in the ART Bill, clause 105. The amendment is technical in nature, and ensures that subsection 500(6G) of the Migration Act continues to operate in substantively the same way, that the Tribunal must not make a review decision until the specified circumstances are met.

Items 277 and 278: Subsections 500(6H), (6J) and (6K), Paragraphs 500(6L)(a) and (c)

Terminology changes

802. These items amend terminology. See explanation of general terminology changes above.

Item 279: Paragraph 500(6L)(c)

Updating legislative references

803. This item updates the AAT Act references and points to subsection 500(6M) (inserted by item 282), which lists the equivalent decision provisions in the ART Bill.

804. The paragraph sets out that if the Tribunal has not made a decision under the listed provisions within the 84-day period, one of the three required conditions would be met to deem the decision under review as affirmed.

805. This update does not change the effect of the provision.

Item 280: Subsection 500(6L)

Terminology changes

806. This item amends terminology. See explanation of general terminology changes above.

Item 281: Subsection 500(6L)

Updating legislative references

807. This item updates legislative references, replacing reference to the AAT Act with reference to the equivalent provision in the ART Bill, clause 105. The amendment is technical in nature, and ensures that subsection 500(6L) of the Migration Act continues to operate in substantively the same way. That is, the pre-conditions are met, the Tribunal is taken to have made a review decision to affirm the decision under review.

Item 282: After subsection 500(6L)

Decisions under the ART Act for the purposes of subsection 500(6L)

808. This item inserts new subsection 500(6M) to list those provisions in the ART Bill that are equivalent to the AAT Act references in existing paragraph 500(6L)(c). They include:

•

a decision by the Tribunal to dismiss an application

-

under clause 95, upon the applicant's withdrawal

-

under clause 96, upon the parties' consent

-

under clause 97, as the subject is not a reviewable decision;

-

under clause 98, as the fee was not paid

-

under clause 99, as the applicant failed to appear

-

under clause 100, as the applicant failed to comply with an order

-

under clause 101, as the application was frivolous or vexatious

•

a review decision by the Tribunal as agreed by the parties under clause 103

•

a decision by the Tribunal on review of the reviewable decision under clause 105.

809. These amendments retain the requirement on the Tribunal to make a decision as provided in this item within the period of 84 days after the day on which the person was notified of the decision under review as remains necessary in order to expedite review of decisions made by a delegate of the Minister under the character provisions. These provisions continue to balance the Government's concern to expedite review of character decisions against the need to ensure that the Tribunal has the ability to properly review these decisions.

810. The addition of subsection 500(6M) is to support the operation of subsection 500(6L), as amended by item 279.

Item 283: Paragraph 500(7)

Updating legislative references

811. This item replaces the references to the 'AAT Act' to clarify that the definition of 'decision' in the ART Bill applies to this section. This update does not affect the operation or effect of the provisions, as the definition is identical.

Item 284: After section 500

Applications generally cannot be made to the ART guidance and appeals panel

812. This item inserts new section 500AA to prevent parties from making applications under clause 123 of the ART Bill to seek a review of a Tribunal decision on decisions made under this Act.

813. Subsection 500AA(2) of the Migration Act provides an exception for matters relating to Part 3 of this Act, which are decisions about migration agents and the provision of immigration assistance. The provision applies to all other applications for review of a decision under this Act.

814. The establishment of the guidance and appeals panel is a new feature of the Tribunal. The exclusion of decisions under the Migration Act (except for Part 3 decisions) from being able to be referred to the guidance and appeals panel for review supports the efficient and timely resolution of matters, preserves the finality of Tribunal decisions (ensuring clear visa status for applicants), and prevents applications being made to the guidance and appeals panel to prolong an applicant's stay in Australia. It does not reduce the current ability to seek review of these decisions in the Tribunal and to seek further review in the federal courts.

815. Clause 122 of the ART Bill applies to all decisions made under the Migration Act. This allows the President of the Tribunal to refer an application for review of a decision that has been made to the Tribunal to the guidance and appeals panel if satisfied that the application raises an issue of significance to administrative decision-making and it is appropriate in the interests of justice that the Tribunal be constituted by the guidance and appeals panel (paragraph 122(1)(b) of the ART Bill). This is intended to ensure that applications for review of a decision under this Act can be reviewed by the guidance and appeal panel if they might raise a systemic issue - for example, if the application involves an issue that may affect larger cohorts of decisions. This maintains the current setting allowing the Tribunal to issue guidance decisions in relation to migration and protection decisions.

Items 285 and 286: Paragraph 501A(1)(b), Subsection 501A(1)

Terminology changes

816. These items replace references to 'Administrative Appeals Tribunal' and 'Tribunal' to clarify that the pre-conditions for the Minister to intervene under section 501A, relate to a non-adverse decision by a delegate or the ART that resulted in a visa being granted or remaining in effect, whether or not the delegate or the ART were satisfied the person passes a character test, or if they had reasonable suspicion that the person would pass the test.

817. These amendments are technical in nature, and ensure paragraph 501A(1)(b) and subsection 501A(1) of the Migration Act continue to operate substantively in the same way in relation to the Tribunal.

Items 287 and 288: Subsection 501A(7) (heading), Subsections 501A(7) and 501B(4)

Updating legislative references

818. These items are updates consequential to the repeal of Part 7 by item 228 and reflect that review of a decision is sought by application under Part 5. New sections 347 and 347A in Part 5 of the Migration Act, inserted by item 136, set out the requirements for an application to the Tribunal for review of a reviewable migration decision or a reviewable protection decision. Once the application is made, the Tribunal conducts review of decisions in accordance with provisions of the ART Bill, subject to any contrary provisions in the Migration Act.

819. These updates do not affect the operation of the provisions that decisions made under subsection 501A(2) or (3) are not reviewable by the Tribunal, and the only option to challenge a decision made under this section is for the person to seek judicial review in either the High Court or in the Federal Court.

Item 289: Subsection 501B(5)

Terminology changes

820. This item replaces the reference to 'Administrative Appeals Tribunal' to clarify that an application for review of a decision is made to the Tribunal. The update does not affect the operation of the provision that the Minister may set aside a decision under section 501B at any stage and substitute a decision which is also adverse, including where the delegate's decision is the subject of an application for review by the ART.

Item 290: Paragraph 501BA(1)(b)

Terminology changes

821. This item replaces the reference to the 'Administrative Appeals Tribunal' to clarify that the Minister may set aside a decision of a delegate or the Tribunal that resulted in certain visa cancellations being revoked. This update does not affect the operation or effect of the provision.

Items 291 and 292: Subsection 501B(5) (heading), Subsections 501BA(5), 501C(11), 501CA(7) and 501(F)(5)

Updating legislative references

822. These items are updates consequential to the repeal of Part 7 by item 228 and reflect that review of a decision is sought by application under Part 5. New sections 347 and 347A in Part 5 of the Migration Act set out the requirements for an application to the Tribunal for review of a reviewable migration decision or a reviewable protection decision to be properly made. The Tribunal conducts review of reviewable migration and protection decisions in accordance with provisions of the ART Bill, as modified by the Migration Act.

823. These updates do not affect the operation of the provisions that the decisions listed in subsections 501BA(5), 501C(11), 501CA(7) and 501(F)(5) are not reviewable by the Tribunal.

Items 293, 294 and 295: Paragraph 501G(1)(f), Subparagraph 501G(1)(f)(i), Paragraph 501G(2)(b)

Terminology changes

824. These items replace references to 'Administrative Appeals Tribunal' and 'Tribunal' to clarify that certain decisions are reviewable by the ART. These updates do not affect the operation of provisions relating to notifications of the specified decisions.

Item 296: At the end of section 501G

Notification of decision

825. This item inserts new subsection (5) to section 501 of the Migration Act, which deals with notifications relating to a refusal or cancellation of a visa decision on character grounds.

826. New subsection 501G(4) provides that clause 267 of the ART Bill does not apply to notifications under this section for decisions to refuse or to cancel a visa.

827. Clause 267 of the ART Bill requires that, in giving notice of decision, the decision-maker must have regard to matters prescribed by rules. The rules will be used to set out best practice considerations for giving notice, including the content of those notices. It is anticipated that these rules will be based on the Code of Practice for Notification of Reviewable Decisions and Rights of Review made under subsection 27B(1) of the AAT Act.

828. Displacing clause 267 of the ART Bill allows the Department of Home Affairs to develop notices that are appropriate and tailored to a refusal or cancellation decision under section 501 of the Migration Act. Given the sensitivities of national interest, the approach allows the administration of the character test the appropriate degree of transparency, certainty and consistency.

829. For decisions with a right of review to the Tribunal, notification that is compliant with the procedural requirements governs the commencement periods for making an application for Tribunal review. The intent is to ensure that the legislative arrangements in relation to rights of review of decisions operate fairly and efficiently.

Items 297, 298, 299, 300 and 301: Subsection 501J(1), Subsection 501J(2), Paragraph 501J(5)(a)

Terminology changes

830. These items replace references to 'AAT' and 'Administrative Appeals Tribunal' to clarify that section 501J applies to certain review decisions made by the ART. Subsection 501J(2) is updated to clarify that an ART protection visa decision is a decision of the ART in relation to an application for, or the cancellation of, a protection visa.

831. These updates do not change the operation of the provision, that the Minister has the power to substitute a more favourable decision for an ART protection visa decision if the Minister considers it is in the public interest to do so.

Items 302 and 303: Section 501K (heading), Subsections 501K(1) and (2)

Terminology changes

832. These items replace references to 'Administrative Appeals Tribunal' to clarify that section 501K applies to Tribunal reviews of a person's capacity to apply for a protection visa, a protection-bridging visa, or where such visas have been cancelled.

833. These updates do not change the operation of the provision, that in relation to these reviews, the Tribunal is not to publish information which may identify the person, their relatives or dependants.

Item 304: Subsection 503B(14) (table item 4)

Terminology changes

834. This item replaces references to 'Administrative Appeals Tribunal' to clarify that the person who applied to the Tribunal for a review of the decision that is the subject of the proceedings as listed at table item 4, is the applicant for the purposes of subsection 503B, which deals with the protection of confidential information disclosed to Federal Court or Federal Circuit Court.

835. The update does not change the operation of the provision, that the Federal Court or Federal Circuit Court may make orders to ensure the non-disclosure of confidential information to an applicant, a legal representative of the applicant or to any other person.

PART 2 - BULK AMENDMENTS

Items 305 and 306: Amendments of listed provisions

836. These items include tables which make bulk amendments to the following Home Affairs portfolio acts:

•

Immigration (Guardianship of Children) Act 1946

•

Maritime Transport and Offshore Facilities Security Act 2003.

Terminology changes

837. The amendments make terminology changes, updating outdated references to the 'Administrative Appeals Tribunal' to instead refer to the 'Administrative Review Tribunal'. These amendments ensure that the new Tribunal has jurisdiction to review decisions that are reviewable by the AAT and that various provisions continue to operate in the same way as the current law for the new Tribunal.

SCHEDULE 3 - DEPARTMENT OF SOCIAL SERVICES

OUTLINE

838. Schedule 3 of the Consequential Bill contains consequential amendments to a number of Acts in the DSS portfolio.

839. The amendments retain special provisions that are fundamental to the operation of Tribunal review for social security and child support matters, including provisions that disapply – or apply instead of – provisions of the ART Bill. These provisions will be retained to, among other things, protect the right to social security and to uphold longstanding principles and practices of administrative review in the social security context. The Schedule includes provisions:

•

maintaining timeframes longer than the standard 28-day timeframe by which a person may apply for ART review

•

specifying that the decision-maker is taken to have elected to be a non-participating party for ART review proceedings (but not for second review proceedings)

•

ensuring ART review proceedings are held in private

•

enabling the decision-maker to vary or substitute a decision that is before the Tribunal for review, in certain circumstances, and

•

applying a date of effect to certain decisions when an application for review is made outside of a specified timeframe.

840. Some amendments remove special procedures for social security and child support reviews. In these cases, the standard provisions in the ART Bill will apply. Other amendments provide greater harmonisation of provisions that apply instead of the ART Bill provisions to matters in the social security portfolio.

841. This Schedule also makes a range of minor amendments. These include amendments to update terminology, such as replacing references to the AAT or the AAT Act with references to the Tribunal or the ART Bill. These amendments ensure that the Tribunal has jurisdiction to review decisions that were reviewable by the AAT, and that various provisions continue to operate in substantively the same way in the Tribunal.

842. Other minor amendments include relocating certain special provisions from the AAT Act to a DSS portfolio Act, replacing references to provisions of the AAT Act with references to the equivalent provision under the ART Bill and repealing provisions which contain terminology that is no longer necessary as a result of the repeal of the AAT Act. In some cases, provisions are amended to cover both the AAT and Tribunal, to ensure these provisions operate as intended or to manage transitional issues.

843. This Schedule contains consequential amendments covering the following Acts in the DSS portfolio:

•

A New Tax System (Family Assistance) Act 1999

•

A New Tax System (Family Assistance) (Administration) Act 1999

•

Australian Hearing Services Act 1991

•

Child Support (Assessment) Act 1989

•

Child Support (Registration and Collection) Act 1988

•

Disability Services Act 1986

•

Marriage Act 1961

•

National Disability Insurance Scheme Act 2013

•

Paid Parental Leave Act 2010

•

Social Security Act 1991

•

Social Security (Administration) Act 1999

•

Student Assistance Act 1973

844. Amendments to a particular Act may be contained in both Part 1 (Main amendments) and Part 2 (Bulk amendments) of the Schedule.

Part 5A - second review of social security decisions

845. Importantly, the proposed ART Bill amendments would establish Part 5A in the ART Bill, providing a pathway for parties to reviews of social services decisions (which include social security, family assistance, child support, paid parental leave and student assistance reviews) to seek second review of Administrative Review Tribunal (Tribunal) decisions. These amendments to the Bill would ensure that the Tribunal operates as intended when providing second review for social services applicants.

846. The second review pathway would replace access to the appeals function of the guidance and appeals panel under Part 5 of the Bill, in which a party can apply to the President to have a Tribunal decision referred to the panel. The President may still refer an application for review of a decision to the guidance and appeals panel on the basis it raises an issue of significance to administrative decision-making, on either first or second review.

847. Amendments to Social Services portfolio legislation are required to facilitate reviews under new Part 5A. In summary, the amendments:

•

omit references to 'guidance and appeals panel applications' in relevant provisions, noting that where second review of decisions is available, applicants are not able to also seek referral of a Tribunal decision to the guidance and appeals panel,

•

insert references to second review in relevant legislative provisions, including those which provide simplified outlines and definitions relating to Tribunal reviews,

•

ensure that decisions cannot be varied or substituted by decision-makers without the agreement of the Tribunal if they have been referred to the guidance and appeals panel on the basis they may raise an issue of significance to administrative decision-making (to ensure the Tribunal has visibility of how these matters are resolved),

•

ensure that second reviews of 'ART social services decisions' (as defined by the amendments to the ART Bill) work as intended, including in relation to care percentage decisions,

•

require relevant notices of decision and review rights to include information about a person's right to apply to the Tribunal for second review of the decision, and

•

clarify how Administrative Appeals Tribunal (AAT) second reviews that have been commenced or completed at the time of transition to the Tribunal are treated after the decision has occurred.

PART 1 - MAIN AMENDMENTS

General terminology changes

848. A range of items in this Schedule make simple terminology changes, such as repealing outdated references to the 'Administrative Appeals Tribunal', the 'AAT' and the 'Administrative Appeals Tribunal Act 1975' and replacing with references to the 'Administrative Review Tribunal', 'ART' and 'Administrative Review Tribunal Act 2024'. These amendments ensure that the Tribunal has jurisdiction to review decisions that are reviewable by the AAT, and that the provisions under those laws continue to operate in substantively the same way in the Tribunal.

849. Similarly, a range of items repeal terminology and references to 'AAT review' and replace this terminology with 'ART review', 'ART social services decision', 'eligible social services decision' and 'second review'. This Schedule refers to 'ART review' to mean initial review of an ART social services decision and 'ART second review' to refer to second review of a social services decision by the Tribunal.

A New Tax System (Family Assistance) Act 1999

Item 1: Subsection 85CE(4)

Notice of reviewable decision and review rights

850. This item repeals subsection 85CE(4) of this Act. Under this subsection, the Secretary is not required to give notice of a refusal to make a child wellbeing determination for the purposes of additional child care subsidy, where the refusal is taken to have been made because the timeframe for making the decision has expired. The effect of repealing subsection 85CE(4), is that these specific deeming provisions and requirements to provide notice of decisions and review rights are removed and clause 266 of the ART Bill will apply. Subclause 266(4) of the ART Bill provides that notice requirements do not apply to decisions taken to have been made because the decision has not been made within the timeframe.

851. Subsection 85CE(4) is being repealed to support a policy of standardising provisions relating to administrative review across Commonwealth legislation where there is no need for different provisions to apply. This ensures provisions in the ART Bill are not duplicated or disapplied unnecessarily in other pieces of legislation. Ultimately, this policy streamlines Tribunal processes and simplifies and improves administrative practices.

852. Repealing subsection 85CE(4) does not change the effect of notification arrangements for the deemed refusal decisions under the subsection, as these are equivalent to the arrangements under clause 266 of the ART Bill.

Item 2: Subsection 85CH(5)

Notice of reviewable decision and review rights

853. This item repeals subsection 85CH(5) of this Act. Under this subsection, the Secretary is not required to give notice of a deemed refusal to an application for a determination of temporary financial hardship. The effect of repealing subsection 85CH(5), is that these specific deeming provisions and requirements to provide notice of decisions and review rights are removed and clause 266 of the ART Bill will apply. Subclause 266(4) of the ART Bill provides that notice requirements do not apply to decisions taken to have been made because the decision has not been made within the timeframe.

854. Subsection 85CH(5) is being repealed to support a policy of standardising provisions relating to administrative review across Commonwealth legislation where there is no need for different provisions to apply. This ensures provisions in the ART Bill are not duplicated or disapplied unnecessarily in other pieces of legislation. Ultimately, this policy streamlines Tribunal processes and improves administrative practices.

855. Repealing subsection 85CH(5) does not change the effect of notification arrangements for certain deemed refusal decisions that the subsection currently creates, as these are equivalent to the arrangements under clause 266 of the ART Bill.

A New Tax System (Family Assistance) (Administration) Act 1999

Items 3 and 4: Subsection 3(1)

Terminology changes

856. These items make terminology changes to subsection 3(1) of this Act. See explanation of general terminology changes above.

857. Item 3 also repeals the term 'AAT single review' and replaces it with the term 'ART child care provider review' which is defined under item 4 of this Schedule. This change in terminology makes no substantive change to the operation of reviews under this Act.

Item 5: Subsection 3(1) (definition of decision )

Updating definitions

858. This item updates the definition of 'decision' so that it refers to its meaning under the ART Bill rather than its meaning under the AAT Act. See explanation of general terminology changes above.

Item 6: Subsection 3(1) (definition of guidance and appeals panel and guidance and appeals panel proceeding)

New definitions

859. This item inserts a definition of 'guidance and appeals panel' and 'guidance and appeals panel proceeding', and provides that these terms have the same meaning as in the ART Bill. This amendment ensures the new guidance and appeals panel framework operates consistently with social security legislation.

Item 7: Paragraphs 73(a), (b) and(c)

Terminology changes

860. This item replaces paragraphs 73(a), (b), and (c) in order to update their terminology. See explanation of general terminology changes above.

Items 8, 9, 10, 11 and 12: Subparagraph 105D(2)(b)(ii), Paragraph 109D(1)(a), Subparagraphs 109D(4)(b)(ii) and (c)(ii), Subsection 109D(5A), Subparagraphs 109E(3)(b)(ii) and (c)(ii)

Timeframe for application for review

861. These items omit '13 weeks' and substitute '90 days' in the following provisions in the Act:

•

subparagraph 105(2)(b)(ii)

•

paragraph 109D(1)(a)

•

subparagraphs 109D(4)(b)(ii) and (c)(ii)

•

subsection 109D(5A)

•

subparagraphs 109E(3)(b)(ii) and (c)(ii).

862. These items standardise the timeframe to apply for review of certain decisions, in order to create a consistent timeframe across similar applications for review of decisions that exist under the A New Tax System (Family Assistance) (Administration) Act 1999, the Child Support (Registration and Collection) Act 1988 and the Student Assistance Act 1973. This new 90-day timeframe helps to streamline applications for review to the Tribunal. It also provides administrative efficiencies for the Tribunal when processing applications with a common timeframe, with minimal impact on a person's timeframe to seek review of these 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 section 110 of this Act to replace, wherever occurring:

•

'AAT for review of the decision (an "AAT first review")' replaced to 'ART for review of the decision (an "ART review")'.

864. Items 14 and 15 repeal the paragraphs explaining AAT single review and AAT second review, and replaces them with a new paragraph which provides that in some circumstances prescribed by the ART Bill, a person can apply to refer a decision to the guidance and appeals panel, or in other circumstances, application can be made for a second review of the decision by the Tribunal.

865. Item 16 replaces 'AAT' with 'ART'. See explanation of general terminology changes above.

Item 17: Section 110

Simplified outline of this Division

866. This item repeals the paragraph beginning with 'The AAT Act' and substitutes a new paragraph to clarify that the ART Bill allows a person to appeal to the FCA on a question of law from a decision of the Tribunal. Other appeal pathways to the courts from a decision of the Tribunal, if available, are located elsewhere in this Schedule. For example, see items 89 and 90 below. These items are technical amendments and are needed to ensure these provisions continue to operate in substantively the same way in the Tribunal.

Items 18 and 19: Subsections 111(1) and 111(1A)

Application for ART review

867. These items update terminology in subsections 111(1) and 111(1A) from 'AAT first review' to 'ART review'. See explanation of general terminology changes above.

Items 22 and 23: Subsections 111A(1) to (2A)

Timeframe for application for review

868. These items replace references in these subsections to '13 weeks' with references to '90 days'. These items standardise the timeframe to apply for review of certain decisions, in order to create a consistent timeframe across similar applications for review of decisions.

Item 24: After subsection 111(1B)

Decision-maker taken to have elected not to participate in ART review proceeding

869. This item inserts section 111C which operates by providing that the Secretary is automatically taken to have provided an election notice to the Tribunal not to participate in any kind of proceeding for ART review of a decision under this Act. The effect of this section is that the decision-maker is deemed to have provided an election notice for ART review for the review of decisions under this Act, and therefore does not need to appear at ART first review. (unless the proceeding is a second review proceeding, has been referred to the guidance and appeals panel or the Tribunal has ordered or agreed that the decision-maker participate in the proceedings in accordance with subclauses 62(1) or 63(2) of the ART Bill).

870. The effect of this section is that the decision-maker is not an active participant in the proceedings but remains a party to that matter (a non-participating party). This section preserves existing arrangements for parties in relation to the conduct of AAT first review matters in which decision-makers do not currently participate. It aims to promote efficiency and a more informal, less-adversarial Tribunal environment. The Tribunal may still direct a non-participating party to do a thing (such as take part in a dispute resolution process).

871. In order to participate in a proceeding, a decision-maker would need to give written notice and obtain permission of the Tribunal to participate, under clause 62 of the ART Bill. This could be, for example, where an application for review raises an issue of particular interest for the agency, or where the agency identifies an opportunity to arrive at a negotiated outcome that is favourable to the applicant. In these circumstances, enabling the decision-maker to participate in the proceeding promotes the objective of efficient review. Allowing the Tribunal to determine whether the decision-maker should participate ensures that the Tribunal can consider any concerns other parties may have in relation to the decision-maker participating. Together with clause 64 of the ART Bill, it also helps to promote certainty and predictability about the participation of the decision-maker in particular kinds of proceedings.

872. Section 111C does not apply to reviews of child care provider decisions because they are not defined as ART reviews. These are classified as ART child care provider reviews, and are subject to different rules as set out in Subdivision G, Division 2, Part 5 of this Act.

Item 25: Section 112

Operation and implementation of decision under ART review

873. This item repeals and substitutes section 112 so that the Tribunal is unable to make an order staying or otherwise affecting the operation and implementation of the decision before the Tribunal makes its final decision. Substituted section 112 is equivalent to section 112 which operates instead of subsection 41(2) of the AAT Act in relation to review applications at the Social Services and Child Support Division. However, substituted section 112 does not apply if the proceeding is a guidance and appeals panels application. In those circumstances, the Tribunal may make an order staying or otherwise affecting the operation of the decision.

874. This preserves existing arrangements that prohibit Tribunal stay orders for AAT first review, but allows Tribunal stay orders to be made at AAT second review.

Remitting decisions for reconsideration

875. This item inserts section 112A, to make it clear that the Tribunal's power to remit a decision to the decision-maker for reconsideration at any time during a proceeding for review (as allowed for in the ART Bill at clause 85) does not apply in relation to ART review matters under this Act.

876. Tribunal remittal powers during the course of proceedings have been disapplied in this Act for ART review other than in second review proceedings)consistent with existing arrangements concerning remittal powers at the AAT. Section 112A is intended to support timely resolution of matters and avoid remittal where it might prolong resolution. In social security matters, it is more appropriate for the Tribunal to only remit a decision to the decision-maker for reconsideration when that remittal is a decision on review to finalise the matter in the Tribunal.

Requesting reasons for decision

877. This item also inserts subsection 112B. Subsection 112B operates instead of clause 268 of the ART Bill which allows persons whose interests are affected by a reviewable decision to request a statement of reasons from the decision-maker within a standard timeframe. The effect of subsection 112B retains the effect of subsection 28(1AAA) of the AAT Act which prevents a person from applying to receive a statement of reasons for a decision made at the social security and child support Division of the AAT under subsection 28(1) of the AAT Act. This is existing policy and reflects the sensitive nature of information that may form the basis of such decisions. This policy protects the privacy of parties to an initial social security review at the Tribunal and ensures that information about decisions cannot be obtained by persons who were not a relevant party to that review.

878. This item does not affect a person's automatic entitlement under the ART Bill to receive a written statement of reasons where they are a party to that relevant ART review matter and decision.

Legal or financial assistance

879. This item creates section 112C, which provides that a person who applies to the Tribunal for review of a decision under this Act cannot make an application to the Attorney-General for legal or financial assistance under clause 294 of the ART Bill. Section 112C clarifies that a person may apply for legal or financial assistance if the application is in relation to a matter that is before the guidance and appeals panel for review.

880. This item retains the effect of subsection 69(3) of the AAT Act in which an application for legal assistance to the Attorney-General is not currently available in the Social Services and Child Support Division of the AAT (but is otherwise allowed for AAT second review matters).

Item 26: Subsection 115(2)

Variation of original decision after application is made for ART review

881. A decision-maker can vary or substitute a decision under this Act after an application for review of a decision is made to the Tribunal. Where this occurs, current subsection 115(1) provides that the ART review, if it continues, relates to the decision as varied or substituted.

882. Current subsection 115(2) provides that the applicant may discontinue or withdraw their application if they do not wish the Tribunal to continue reviewing the varied or substituted decision. This item repeals that subsection because it is no longer necessary. The ART Bill provides a person with the ability to withdraw their application by a written notice or any other manner specified in the practice directions.

883. This item substitutes a subsection 115(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 the guidance and appeals panel under clause 122 of the ART Bill, clause 31 of the ART Bill applies. That is, once a referral has been made to the guidance and appeals panel because the President considers it raises an issue of significance to administrative decision-making, the decision cannot be altered except by the Tribunal unless the parties to the review proceeding and the Tribunal agree. This ensures that the Tribunal has visibility of how matters raising issues of significance to administrative decision-making are resolved.

886. The decision-maker also cannot vary or substitute a decision after an application for second review has been made: see proposed clause 131M of the ART Bill, inserted in new Part 5A, which provides that despite a contrary intention, clause 31 of the ART Bill applies to second reviews.

Item 27: Subsection 116(1)

Procedure on receipt of application for ART review

887. This item repeals and replaces subsection 116(1) to update terminology but otherwise retains the effect of subsection 116(1) so that the Tribunal may, in relation to an application for Tribunal review request the Secretary to lodge certain documents with the Tribunal.

Item 28: Subsection 119(1)

Power to obtain information for ART review

888. This item updates terminology in subsection 119(1) so that the application of the subsection remains the same in relation to the Tribunal's summons powers. These items are technical amendments needed to ensure that various provisions continue to operate in the same way in the Tribunal.

Item 29: Subsection 119(2) (penalty)

Penalties

889. This item repeals the existing penalty for failing to comply with a summons notice. The penalty has been reduced to imprisonment for six months or 30 penalty units, or both, to align with penalties for failing to comply with a summons under clause 116 of the ART Bill. This penalty level is consistent with the approach to penalties for failure to comply with a summons that are set out in Part 9.4 of the Guide to Offences.

Items 30 and 31: Section 120 (heading) and subsection 120(1)

Tribunal may require Secretary to obtain information for ART review

890. This item updates terminology from 'AAT first review' to 'ART review'. The power to require further information from the Secretary may also extend to guidance and appeals panel reviews. These items are technical amendments needed to ensure that section 120 continues to operate in the same way in the Tribunal.

Item 32: Section 121

Hearing of certain ART reviews in private

891. This item repeals and substitutes section 121 so that a proceeding for ART review must be heard in private. This maintains arrangements under section 121 of the Act for AAT review matters to be heard in private.

Item 32A: Subsection 122(1)

Costs of proceedings to be borne by each party except where legal or financial assistance is granted

892. Item 32A inserts 'and the outcome of any application under section 294 of the ART Act' after the reference to subsection 122(4) in subsection 122(1).

893. This item clarifies that a party must bear their own costs in relation to an ART review, except where the circumstances in subsection 122(4) apply, or depending on the outcome of an application under clause 294 of the ART Bill for legal or financial assistance. This item is consequential to proposed new Clause 131U of the ART Bill, which provides that a person may apply to the Attorney-General for legal or financial assistance in a proceeding for second review of an ART social services decision.

Item 33: Section 122(3)

Costs of ART review

894. This item updates terminology from 'AAT first review' to 'ART review'. The power for the Tribunal to determine whether the Commonwealth is to pay for the provision of a medical service in relation to a party at ART review may also extend to guidance and appeals panel reviews.

Item 33A: Paragraph 123(a)

Decision on ART review of care percentage decision

895. Item 33A repeals and substitutes paragraph 123(a). New paragraph 123(a) states that if the Tribunal has reviewed a child support decision (as referred to in section 89 of the Child Support (Registration and Collection) Act 1988) (first review) or a decision on application referred to in proposed clause 131D of the ART Bill (second review) in relation to a child support decision, then the Tribunal must not vary or substitute the decision in a way that has the effect of varying or substituting the care percentage determination.

896. This item is consistent with current settings that the Tribunal cannot, on ART review (that is not a second review), vary or substitute review decisions of care percentage decisions. This is to provide certainty for applicants involved in child support care decisions and ensure that payments are continued to be consistently paid during the time the Tribunal is reviewing the decision.

Item 34: Subsection 124(1)

Certain other decisions on ART review

897. This item updates terminology from 'AAT first review' to 'ART review', and updates the reference to clause 105 of the ART Bill. See explanation of general terminology changes above.

Items 36 and 37: Subsections 125(1) and 125(2)

Date of effect of certain ART review decisions relating to payment of family tax benefit

898. These items amend paragraph 125(1)(b) and subsection 125(2), so that date of effect provisions relating to payments for family tax benefits omits '13 weeks' (wherever occurring) and substitutes '90 days'. These items standardise the timeframe in relation to date of effect in order to create consistent timeframes across similar applications for review of decisions.

Item 38: Section 126

Notification of decision and statement of reasons for Tribunal review

899. This item repeals section 126, which provides requirements for the Tribunal to provide notice of and reasons for its decisions for certain decisions under the Act. The provision is not necessary as clause 266 of the ART Bill provides general requirements for the Tribunal to provide notice of and reasons for its decision on a review of a decision. The effect of repealing section 126 is that clause 266 of the ART Bill will apply.

Items 39 and 40: Section 127

Secretary or Tribunal may treat event as having occurred if decision set aside on ART review

900. These items update terminology from 'AAT first review' to 'ART review', and update the reference to clause 105 of the ART Bill. See explanation of general terminology changes above.

Item 41: Subdivisions D and E of Division 2 of Part 5

Removal of AAT second review

901. These items repeal Subdivisions D and E of Division 2 of Part 5 of this Act. This is required as the concept of 'AAT second review' has been removed from social services legislation and placed within proposed Part 5A of the ART Bill. The ability to seek second Tribunal review of matters will now occur through the framework that is established by the ART Bill.

Item 42: Subdivision F of Division 2 of Part 5 (heading)

Removal of AAT second review

902. This item repeals the subheading at Subdivision F of Division 2 of Part 5 of this Act, as it is no longer necessary as a result of the removal of AAT second review from social services legislation.

Item 43: Subparagraph 137B(2)(b)(ii)

ART review of entitlement to be paid CCS or ACCS-time limit on increase

903. This item amends subparagraph 137B(2)(b)(ii) to omit '13 weeks' and substitute '90 days'. These items standardise the timeframe to make an application for review for certain decisions as specified in section 137B, in order to create consistent timeframes across similar applications for review of decisions.

Items 44 and 45: Subsection 138(1) and Subsection 138(3)

Applications for AAT single review

904. These items amend subsections 138(1) and 138(3) to make relevant terminology updates by omitting 'AAT single review' and substituting it for 'ART child care provider review'.

905. This terminology change is required to ensure the term 'ART child care provider review' maintains the same meaning and effect of 'AAT single review' as given by section 138 of this Act.

Item 46: After subsection 138(3)

ART child care provider reviews

906. This item inserts subsection 138(3A) to clarify that any ART review undertaken, including by the guidance and appeals panel, of child care provider reviews are taken to be 'ART child care provider reviews'. This item ensures that ART child care provider reviews are not subject to special arrangements made by this Schedule for other social security matters reviewed by the Tribunal.

Item 47: After section 138

Remitting decisions for reconsideration

907. This item inserts section 138A, to make it clear that the Tribunal's power to remit a decision to the decision-maker for reconsideration at any time during a proceeding for review (as allowed for in the ART Bill at clause 85) does not apply in relation to ART review matters under this Act. Section 138A does not apply to guidance and appeals panel reviews where remittal to the original decision-maker is permitted at any time during a proceeding for review.

908. Tribunal remittal powers during the course of proceedings have been disapplied in this Act for ART review (other than for second review proceedings) to retain the existing arrangements concerning remittal powers at the AAT. This section is intended to support timely resolution of matters and avoid remittal where it might prolong resolution. In social security matters, it is more appropriate for the Tribunal to only remit a decision to the decision-maker for reconsideration when that remittal is a decision on review to finalise the matter.

Legal or financial assistance

909. This item also creates section 138B which provides that a person who applies to the Tribunal for review of a decision under this Act cannot make an application to the Attorney-General for legal or financial assistance under clause 294 of the ART Bill. Section 138B clarifies that a person may apply for legal or financial assistance if the application is in relation to a matter that is before the guidance and appeals panel for review.

910. This item retains the effect of subsection 69(3) of the AAT Act in which an application for legal assistance to the Attorney-General is not available in the Social Services and Child Support Division of the AAT (but is otherwise allowed for AAT second review matters).

Item 48: Subsection 139(2)

Variation of decision after application is made for child care provider review

911. A decision-maker can vary or substitute a decision under this Act after an application for review of a decision is made to the Tribunal. Where this occurs, current subsection 139(1) provides that the Tribunal review, if it continues, relates to the decision as varied or substituted.

912. Current subsection 139(2) provides that the applicant may discontinue or withdraw their application if they do not wish the Tribunal to continue reviewing the varied or substituted decision. This item repeals that subsection because it is no longer necessary. The ART Bill provides a person with the ability to withdraw their application by a written notice or any other manner specified in the practice directions

913. This item substitutes a new subsection 139(2) which provides that subsection 139(1) does not apply if the application is a guidance and appeals panel application. Decisions under review by the guidance and appeals panel cannot be varied and substituted by the decision-maker without the agreement of the Tribunal, as these proceedings concern matters of systemic significance or possible errors by the Tribunal and the Tribunal must have visibility of how they are resolved (see clause 31 of the ART Bill).

914. New subsection 139(3) clarifies that where a decision has been varied or substituted (after the application for referral to the guidance and appeals panel is made but before the guidance and appeals panel is constituted), the application to the guidance and appeals panel is to be taken to be an application for the review of that decision as varied or substituted. After the guidance and appeals panel has been constituted, the decision can only be varied or substituted under subclause 31(2) of the ART Bill.

915. This item retains the effect of section 139 under this Act, which applies to AAT single review.

Item 49: Paragraph 140(a)

Secretary may treat event as having occurred if decision to set aside on ART review

916. This item makes relevant terminology updates by repealing the paragraph and substituting it so that 'AAT single review' is substituted for 'ART child care provider review'. This item ensures that ART child care provider reviews are not subject to special arrangements made by this Schedule for other social security matters reviewed by the Tribunal.

Item 50: After paragraph 152D(1)(a)

Date of effect of ART reviews under the child support law that apply for family assistance purposes

917. This item inserts paragraph 152D(1)(aa) to specify that these date of effect provisions do not apply to guidance and appeals panel applications.

Items 51 and 52: Paragraph 152D(1)(c) and subsection 152D(3)

Date of effect of ART reviews under the child support law that apply for family assistance purposes

918. These items amend paragraph 152D(1)(c) and subsection 152D(3) to omit '13 weeks' and substitute '90 days'. These items standardise the timeframe to apply for review of certain decisions, in order to create a consistent timeframe across similar applications for review of decisions.

Items 52A: After Subsection 161(1A)

Publishing reasons for Tribunal decisions

919. This item inserts new subsections 161(1B) and 161(1C) to the A New Tax System (Family Assistance) (Administration) Act 1999.

920. The ART Bill implements recommendations of the Robodebt Royal Commission Report in relation to the publication of Tribunal decisions. Under the Bill, the Tribunal can publish any of its decisions and would be required to publish decisions involving a significant conclusion of law, or with significant implication for Commonwealth policy or administration.

921. Secrecy provisions are contained in the social security law that prohibit disclosure of protected information and would likely prevent publication of Tribunal decisions to which that information relates. Exceptions to secrecy provisions as set out in subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988 currently allow the Tribunal to publish reasons for de-identified child support tribunal decisions. Similar amendments to the A New Tax System (Family Assistance) (Administration) Act 1999 are required to ensure that de-identified family assistance 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 review so long as the publication does not identify (other than the Secretary or the Child Support Registrar):

•

Any party to the review; or

•

Any person related to, associated with a party to which the matter relates; or

•

Any witness in the review concerned.

923. New subsection 161(1C) sets out types of information that are taken to be information that identifies a person, where it is sufficient to identify that person to a member of the public to which the publication is disseminated. This includes information on the particulars 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 or otherwise associated

924. These amendments are necessary as the ability for the Tribunal to publish its decisions is important to promoting public trust and confidence in administrative decision-making and its operations and promote transparency in decision-making. Requirements that any publication of a Tribunal decision in a family assistance matter must be de-identified will protect the identity of individuals and parties.

Australian Hearing Services Act 1991

Items 53 and 54: Paragraph 65(1)(e) and subsection 65(3)

Terminology Changes

925. These items make minor terminology changes. See explanation of general terminology changes above.

Child Support (Assessment) Act 1989

Items 55 and 56: Subsection 5(1)

Updating definitions

926. These items update definitions under subsection 5(1) to reflect terminology changes. See explanation of general terminology changes above.

Child Support (Registration and Collection) Act 1988

Items 57, 58 and 59: Subsection 4(1)

Updating definitions

927. These items update definitions under subsection 4(1) to reflect terminology changes. See explanation of general terminology changes above.

Item 60: Subsection 4(1)

New definitions

928. This item inserts a definition of second review in subsection 4(1), and provides that it has the same meaning as in the ART Bill.

Item 61: Subsection 72T(2) (definition of decision )

Terminology changes

929. This item makes a minor terminology change. See explanation of general terminology changes above.

Item 62: Section 79D

Simplified outline of this Part

930. This item is a technical amendment and updates terminology at section 79D 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 "ART review")'.

Item 63: Section 87A

Application for ART review

931. This item is a technical amendment and repeals and substitutes 'AAT' with 'ART' and 'AAT first review' with 'ART review' (wherever occurring). See explanation of general terminology changes above.

Item 64: Section 87A (paragraph beginning "The person may")

Simplified outline of this Part

932. This item repeals the paragraph explaining AAT first review and AAT second review, and replaces it with a new paragraph which provides that in some circumstances prescribed by the ART Bill, a person can apply to refer a decision to the guidance and appeals panel, or in other circumstances, application can be made for a second review of the decision by the Tribunal.

Item 65: Sections 87A (paragraph beginning "The rules")

Terminology changes

933. This item makes a minor terminology change. See explanation of general terminology changes above.

Item 66: Section 87A (paragraph beginning 'The AAT Act')

Simplified outline of this Part

934. This item repeals the paragraph beginning with 'The AAT Act' and substitutes the paragraph to clarify that, subject to this Part, the ART Bill allows a person to appeal to a court on a question of law from a decision of the Tribunal. The relevant provisions in this Part are in items 89 and 90.

Item 67: Section 89

Technical amendment

935. This item is a technical amendment and is needed to create subsection 89(1) as a consequence of subsection 89(2) as inserted by item 69. This item is needed to ensure that various provisions continue to operate in the same way in the Tribunal.

Item 68: Section 89

Application for ART review

936. This item is a technical amendment and updates terminology in section 89 from 'AAT' to 'ART' and 'AAT first review' to 'ART review'. See explanation of general terminology changes above.

Item 69: At the end of section 89

Application for ART review

937. This item inserts subsection 89(2) to clarify that a guidance and appeals panel review is also to be considered an ART review. This replaces the concept of 'AAT first review' and 'AAT second review' with the concept of 'ART review', to encompass all reviews at the Tribunal. Note that clarifications have been made throughout this Schedule when a provision concerning ART review is taken not to apply to the guidance and appeals panel.

Item 70: Subsection (90)(1) (note)

Time limit on application for ART review

938. This item updates the note at subsection 90(1) to update terminology and the reference to clause 18 of the ART Bill. See explanation of general terminology changes above.

939. This item otherwise preserves the effect of section 90 where there is no time limit to apply for ART review of a care percentage decision.

Item 71: At the end of section 90

Time limit on application for ART review

940. This item is a clarifying amendment which inserts subsection 90(3). Subsection 90(3) makes it clear that subsection 90(2) concerning a time limit for Tribunal review does not apply in relation to a guidance and appeals panel application.

Item 72: At the end of section 91

Application for extension of time to apply for ART review

941. This item inserts subsection 91(4) to make it clear that an application for an extension of time to apply for ART review made under section 91 does not apply to guidance and appeals panel applications.

Item 73: Subsections 92(4) and (5)

Consideration of application for extension of time to apply for ART review

942. This item repeals and substitutes subsections 92(4).

943. New subsection 92(4) provides that if the Tribunal refuses an extension application under section 91 of the Child Support (Registration and Collection) Act 1988, the notice of decision under subsection 92(3) must include a statement that the person may apply to the Tribunal for second review of the decision to refuse the extension and that the person may, under clause 268 of the ART Bill, request a statement of reasons for the decision to refuse the extension application.

944.

945. This a technical amendment that reflects proposed clauses in the ART Bill which make an application for second review available for social services matters, including Tribunal decisions on child support extension applications.

946.

Item 74: Before section 95A

Decision-maker taken to have given an election notice

947. This item inserts section 94 which operates by providing that the Secretary is automatically taken to have provided an election notice to the Tribunal not to participate in any kind of proceeding for ART review of a decision under this Act. The effect of this section is that the decision-maker is deemed to have provided an election notice for proceedings for ART review for the review of decisions under this Act, 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 has ordered or agreed that the decision-maker participate in the proceedings in accordance with subclauses 62(1) or 63(2) of the ART Bill).

948. The effect of this section is that the decision-maker is not an active participant in the proceedings but remains a party to that matter (a non-participating party). This section preserves existing arrangements for parties in relation to the conduct of AAT first review matters in which decision-makers do not currently participate. It aims to promote efficiency and a more informal, less-adversarial Tribunal environment. The Tribunal may still direct a non-participating party to do a thing (such as take part in a dispute resolution process).

949. In order to participate in a proceeding, a decision-maker would need to give written notice and obtain permission of the Tribunal to participate, under clause 62 of the ART Bill. This could be, for example, where an application for review raises an issue of particular interest for the agency, or where the agency identifies an opportunity to arrive at a negotiated outcome that is favourable to the applicant. In these circumstances, enabling the decision-maker to participate in the proceeding promotes the objective of efficient review. Allowing the Tribunal to determine whether the decision-maker should participate ensures that the Tribunal can consider any concerns other parties may have in relation to the decision-maker participating. Together with clause 64 of the ART Bill, it also helps to promote certainty and predictability about the participation of the decision-maker in particular kinds of proceedings.

Item 75: Section 95A

Operation and implementation of decision under ART review

950. This item repeals and substitutes section 95A so that the Tribunal is unable to make an order staying or otherwise affecting the operation and implementation of the decision before the Tribunal makes its final decision. Substituted section 95A is equivalent to section 95A which operates instead of subsection 41(2) of the AAT Act in relation to review applications at the Social Services and Child Support Division. However, substituted section 95A does not apply if the proceeding is a guidance and appeals panels application. In those circumstances, the Tribunal may make an order staying or otherwise affecting the operation of the decision. This preserves existing arrangements that prohibit Tribunal stay orders for AAT first review, but allows Tribunal stay orders to be made at AAT second review.

Remitting decisions for reconsideration

951. This item also inserts section 95AA, to make it clear that the Tribunal's power to remit a decision to the decision-maker for reconsideration at any time during a proceeding for review (as allowed for in the ART Bill at clause 85) does not apply in relation to ART review matters under this Act. Section 95AA does not apply to guidance and appeals panel reviews where remittal to the original decision-maker is permitted at any time during a proceeding for review.

952. Tribunal remittal powers during the course of proceedings have been disapplied in this Act for ART review (other than guidance and appeals panel reviews) to retain the existing arrangements concerning remittal powers at the AAT. This section is intended to support timely resolution of matters and avoid Tribunal remittal decisions that could prolong resolution. In social security matters, it is more appropriate for the Tribunal to only remit a decision to the decision-maker for reconsideration when that remittal is a decision on review to finalise the matter.

Requesting reasons for decision

953. This item also inserts subsection 95AB. Subsection 95AB operates instead of clause 268 of the ART Bill which allows persons whose interests are affected by a reviewable decision to request a statement of reasons from the decision-maker within a standard timeframe. The effect of subsection 95AB retains the effect of subsection 28(1AAA) of the AAT Act which prevents a person from applying to receive a statement of reasons for a decision made at the Social Security and Child Support Division of the AAT under subsection 28(1) of the AAT Act. This policy reflects the sensitive nature of information that may form the basis of such decisions. This policy protects the privacy of parties to social security review at the Tribunal and ensures that information about decisions cannot be obtained by persons who were not a relevant party to that review.

954. To clarify, this item does not affect a person's automatic entitlement under the ART Bill to receive a written statement of reasons where they are a party to that relevant ART review matter and decision.

Legal or financial assistance

955. This item also creates section 95AC, which provides that a person who applies to the Tribunal for review of a decision under this Act cannot make an application to the Attorney-General for legal or financial assistance (under clause 294 of the ART Bill). Section 95AC clarifies that a person may apply for legal or financial assistance if the application is in relation to a matter that is being considered by the guidance and appeals panel for review.

956. This item retains the effect of subsection 69(3) of the AAT Act in which an application for legal assistance to the Attorney-General is not currently available in the Social Services and Child Support Division of the AAT (but is otherwise allowed for AAT second review matters).

Item 76: After subsection 95B(1)

Variation of original decision after application is referred to the guidance and appeals panel

957. This item inserts new subsection 95B(1AA) into the Act, which provides that, if the President refers an application to the guidance and appeals panel under clause 122 of the ART Bill, clause 31 of the ART Bill applies after that referral is made. Clause 31 of the ART Bill provides that once an application to the Tribunal has been made, only the Tribunal may alter the decision under review, unless the parties to the proceeding and the Tribunal consent, or the decision has been remitted to the decision-maker under clause 85.

958. A decision-maker can vary or substitute certain decisions under the Act after an application for review of a decision is made to the Tribunal. Where this occurs, subsection 95B(1) provides that the Tribunal review relates to the decision as varied or substituted.

959. Once a referral has been made to the guidance and appeals panel because the President considers it raises an issue of significance to administrative decision-making, the decision cannot be altered except by the Tribunal unless the parties to the review proceeding and the Tribunal agree. This ensures that the Tribunal has visibility of how matters raising issues of significance to administrative decision-making are resolved.

960. The decision-maker also cannot vary or substitute a decision after an application for second review has been made: see proposed clause 131M of the ART Bill, which provides that despite a contrary intention, clause 31 of the ART Bill applies to second reviews.

Item 77: Subsection 95B(3)

Variation of original decision after application is made for ART review

961. This item repeals subsection 95B(3). Subsection 95B(3) provided an applicant with the ability to withdraw an application for AAT review if the person did not want the AAT to review a decision which has been varied or substituted. Clause 95 of the ART Bill provides a person with the ability to withdraw their application by a written notice or any other manner specified in the practice directions. Subsection 95B(3) is being repealed to support a policy of standardising provisions relating to administrative review across Commonwealth legislation where there is no need for different provisions to apply. This ensures provisions in the ART Bill are not duplicated or disapplied unnecessarily in other pieces of legislation. Ultimately, this policy streamlines Tribunal processes and simplifies and improves administrative practices.

Item 78: Subsection 95C(1)

Procedure on receipt of application for ART review

962. This item repeals and substitutes subsection 95C (1) to update terminology but otherwise retains the effect of subsection 95C(1) so that the Tribunal may, in relation to an application for ART review, request the Secretary to lodge certain documents with the Tribunal. Substituted subsection 95C(1) clarifies that it does not apply when the application is a guidance and appeals panel application

Item 79: Subsection 95H(1)

Power to obtain information for ART review

963. This item repeals and substitutes subsection 95H(1). It updates terminology in the subsection to clarify that the Tribunal can require any person it believes has information relevant to an ART review to produce that information. The effect of substituted subsection 95H(1) is broadly applicable across all ART reviews (including guidance and appeals panel reviews).

964. Substituted subsection 95H(1) also substitutes the note to refer to clause 74 of the ART Bill, concerning the Tribunal's power to summon a person to give evidence or produce documents.

Item 80: Subsection 95H(2) (penalty)

Penalties

965. This item repeals the existing penalty for failing to comply with a summons notice. The penalty has been reduced to imprisonment for six months or 30 penalty units, or both, to align with the penalties for failing to comply with a summons under clause 116 of the ART Bill. This penalty level is consistent with the approach to penalties for failure to comply with a summons that are set out in Part 9.4 of the Guide to Offences.

Items 81 and 82: section 95J (heading) and subsection 96J(1)

Terminology changes

966. These items make minor terminology changes. They are technical amendments and do not affect the operation of the law. See explanation of general terminology changes above.

Item 83: Section 95K

Hearing of certain ART reviews in private

967. This item repeals and substitutes section 95K so that a proceeding for ART review must be heard in private, unless the proceeding is a guidance and appeals panel proceeding. This maintains existing arrangements under section 95K for AAT first review matters to be heard in private.

Item 83A: Paragraph 95M(a)

Family assistance decisions

968. This item substitutes paragraph 95M(a) of the Child Support (Registration and Collection) Act 1998 with new paragraph 95M(a).

969. New paragraph 95M(a) provides that the Tribunal must not, on their first review of the care percentage decision, vary or substitute the decision in a way that would have the effect of varying or substituting the determination made in relation to care percentage decisions if it is a family assistance decision on application referred to in section 111 of this Act or proposed clause 131D of the ART Bill (second review) in relation to a family assistance decision that the Tribunal has reviewed. This item retains current arrangements by preserving second review for child support decisions.

Items 84 and 85: Subsection 95N(1) and 95N(3) (note)

Date of effect of ART review decision relating to care percentage decision

970. Item 84 repeals and substitutes subsection 95N(1) to make general terminology changes. Paragraph 95N(1)(c) excludes the operation of subsection 95N(1) from applying to guidance and appeals panel applications.

971. Item 84 maintains the effect of section 95N which provides that, if an application for review is made outside the specified timeframes, then any AAT first review decision can only be taken to have effect from the day the application for ART review was made. The date of effect set out in section 95N applies unless a special circumstances determination is made by the Tribunal under subsection 95N(2).

972. Item 85 repeals the note under subsection 95N(3). This is a consequential amendment which reflects the removal of AAT second review in the Tribunal and the repeal of Divisions 4 and 5 of this Act (see item 87 below).

Item 86: Sections 95P and 95Q

Notification of decisions and reasons for Tribunal review

973. This item repeals section 95P which provides requirements for the Tribunal to provide notice of and reasons for its decisions for certain decisions under the Act. The provision is not necessary as clause 266 of the ART Bill provides general requirements for the Tribunal to provide notice of and reasons for its decision on a review of a decision. The effect of repealing section 95P is that clause 266 of the ART Bill will apply.

Repeal of President directions by legislative instrument

974. This item also repeals section 95Q because the President no longer requires a power to make directions by legislative instrument in relation to the conduct of ART reviews. The President has the general and broad power to make practice directions under Part 4 Division 3 of the ART Bill.

Items 87 and 88: Divisions 4 and 5 of Part VIIA and Division 6 of Part VIIA (heading)

Removal of AAT second review

975. Item 87 repeals Divisions 4 and 5 of Part VIIA of this Act. This is required as the concept of 'AAT second review' has been removed from social services legislation and placed within proposed Part 5A of the ART Bill.

976. Item 88 is a technical structural change to the Act that repeals the heading of Division 6 of Part VIIA which is no longer necessary once Divisions 4 and 5 of this Part are repealed and the concept of AAT second review is removed.

Items 89 and 90: Division 4 – Appeals and references of questions of law

Division concerning appeals to FCFCOA (Division 2)

977. Item 89 inserts a heading – 'Division 4 - Appeals and references of questions of law' before section 98D of this Act.

978. Item 90 adds section 99 at the end of Part VIIA. Section 99 is equivalent to section 44AAA of the AAT Act which provides for child support decisions at the AAT to be appealed directly to the FCFCOA (Division 2). It enables a party to a Tribunal proceeding to appeal a decision of the Tribunal on a question of law to the FCFCOA (Division 2). The subsections created by section 99 provide:

•

a party to a proceeding for ART review may appeal the Tribunal decision to the FCFCOA (Division 2) on a question of law.

•

a party may not appeal a Tribunal decision to the FCFCOA if the decision was made by the Tribunal constituted by a Judge or Deputy President.

•

that certain provisions of the ART Bill operate in the same way as they would if the appeal were under clause 172 of the ART Bill to appeal on a question of law to the FCA.

979. A party may still appeal a decision of the Tribunal on a question of law to the FCA under clause 172 of the ART Bill.

980. These amendments have been made because section 44AAA of the AAT Act is repealed and not replicated in the ART Bill. This reflects the policy to relocate necessary special procedures or provisions for particular cohorts of applicants from the AAT Act to relevant portfolio legislation.

Item 91: Paragraph 110P(2)(b) and (c),

Terminology changes and updating legislative references

981. Item 91 replaces references to sections in the AAT Act with the equivalent ART Bill provision references, and makes relevant terminology changes. These are technical amendments and are needed to ensure the provision continues to operate in substantively the same way in the Tribunal.

Item 92: Paragraphs 110Q(b)

Meaning of reconsideration

982. This item repeals and substitutes paragraph 110Q(b) to amend the definition of 'reconsideration' for the purposes of that Act.

983. New paragraph 110Q(b) provides that for the purposes of the Child Support (Registration and Collection) Act 1988, reconsideration of a decision includes an application to the Tribunal for ART review of an objection to a decision under Part VII of the Child Support (Registration and Collection) Act 1988, or a second review of a decision on that ART review.

984. This item reflects the current by right second review arrangements for decisions for social services matters.

Item 93: Paragraph 110W(1)(b)

Technical amendment

985. This item repeals and substitutes paragraph 110W(1)(b) to the Act.

986. Subsection 110W(1) of the Child Support (Registration and Collection) Act 1988 sets out when a Tribunal decision for which there is no further Tribunal review available is final for the purposes of that Act or the Child Support (Assessment) Act 1989. New paragraph 110W(1)(b) provides that if no application may be made under the ART Bill for second review or to refer the decision to the guidance and appeals panel and the other criteria in subsection 110W(1) are met, the decision is final at the end of the period for making an appeal to a court (assuming no appeal is made).

987. This item sets out the interaction of the provision with second review and the guidance and appeals panel established in Part 5 of the ART Bill.

Item 94: Paragraph 110W(1A)(b)

Terminology changes and updating legislative references

988. Item 94 repeals and substitutes paragraph 110W(1A)(b) of the Child Support (Registration and Collection) Act 1988.

989. Subsection 110W(1A) of the Child Support (Registration and Collection) Act 1988 sets out when a Tribunal decision for which there is further Tribunal review available is final for the purposes of that Act or the Child Support (Assessment) Act 1989. New paragraph 110W(1A)(b) provides that if an application may be made under the ART Bill for second review or to refer the decision to the guidance and appeals panel and the other criteria in subsection 110W(1A) are met, the decision is final at the end of the period during which an application can be made for second review (assuming no application is made).

Item 95: After subparagraph 110W(4)(b)(ii)

Determining when decisions become final

990. This item inserts subparagraph 110W(4)(b)(iia) to provide that a Tribunal decision becomes final at the end of the prescribed time period for lodging an application to refer a Tribunal decision to the guidance and appeals panel if no application is lodged within that prescribed time period.

Item 96: Subsection 110X(7) (definition of designated review proceedings )

Terminology changes

991. This item makes relevant terminology changes to the definition of 'designated review proceedings' in subsection 110X(7). This is a technical amendment. It does not affect the operation of the law. See explanation of general terminology changes above

Item 98: Section 111A

Terminology changes

992. This item .makes general terminology changes to section 111A. Additionally, it inserts a reference to the guidance and appeals panel to clarify that a court cannot make an order under the Child Support (Registration and Collection) Act 1988 staying or otherwise affecting the operation of this Act or the Child Support (Assessment) Act 1989 in relation to decisions subject to either ART second review, or review by the guidance and appeals panel.

Item 99: Paragraph 111C(1)(c)

Stay orders

993. This item repeals and substitutes a new paragraph 111C(1)(c) to clarify that stay orders are only available to the Tribunal in relation to a guidance and appeals panel application. Parties who wish to apply for a stay order pertaining to a decision that is being considered by the Tribunal (but not the guidance and appeals panel) must do so in accordance with section 111C.

Disability Services Act 1986

Item 100: Subsection 26(5) (note)

Terminology changes and updating legislative references

994. This note has been updated to reflect terminology and provisions in relation to the ART Bill.

995. The legislative reference to section 27A of the AAT Act in the note is replaced with a reference to clause 266 of the ART Bill.

996. Consistent with section 27A of the AAT Act, clause 266 of the ART Bill requires a decision-maker to notify persons who are affected by the decision of the making of the decision and their right to have the decision reviewed.

997. The note also states that when giving such notice, the decision-maker is required to have regard to the matters prescribed by the rules (if such rules have been prescribed under the ART Bill). Section 27B of the AAT Act allows the Attorney-General to make a legislative instrument determining a Code of Practice for facilitating notices of decisions and a person's review rights. It is anticipated that any prescribed rules or their equivalent under the ART Bill will be based on the Code of Practice for Notification of Reviewable Decisions and Rights of Review made under subsection 27B(1) of the AAT Act.

Marriage Act 1961

Item 101: Subsection 34(1)

Terminology changes

998. This item is a technical amendment. It does not change when an application can be made to the Tribunal under this Act. See explanation of general terminology changes above.

National Disability Insurance Scheme Act 2013

Item 102: Subsection 103(1) (note)

Applications to the Tribunal

999. This item repeals the note to subsection 103(1). This note is not required as existing subsection 100(1) of the Act specifies the decision-maker must give written notice of the reviewable decisions and reasons to each person directly affected by the reviewable decision.

Item 103: After subsection 103(1)

Applications to the Tribunal

1000. This item inserts new subsection 103(1A) which provides that an application for ART review under subsection 103(1) of this Act may only be made by, or on behalf of, a person directly affected by a decision made under subsection 100(6) of this Act.

1001. This item also inserts subsection 103(1B) so that requirements to give a person notice of a decision and their review rights, and a person's right to request reasons for a decision, only apply to a person directly affected by a decision made under subsection 100(6) of this Act.

1002. This item is a necessary amendment to bring subsection 100(6) of this Act into alignment with the interpretation of subsections 100(1) and 100(2) of this Act. In Deacon and National Disability Insurance Agency [2022] AATA 3209 the AAT interpreted subsection 100(2) of the NDIS Act to require that a person's interests to be directly affected by a decision in order to have standing under subsection 27(1) of the AAT Act.

1003. This item does not prevent a participant's plan nominee from making an ART review application under the NDIS Act, where they have the power to act on behalf of the NDIS participant (Allan and National Disability Insurance Agency [2023] AATA 1270 at [18]). Clause 35 of the ART Bill allows another person to make an application to the Tribunal on the applicant's behalf.

Item 104: Paragraph 103(2)(c)

Updating legislative references

1004. This item updates a legislative reference to a provision of the AAT Act to instead refer to the equivalent provision of the ART Bill, subclause 31(1). This item is a technical amendment and is needed to ensure these provisions continue to operate in substantively the same way.

Paid Parental Leave Act 2010

Items 105 and 106: Section 4

Guide to this Act

1005. Item 105 amends terminology. See explanation of general terminology changes above.

1006. Item 106 repeals the paragraph beginning 'Part 5-3' and substitutes a new paragraph which provides that that in some circumstances prescribed by the ART Bill, a person can apply to refer a decision to the guidance and appeals panel. In other circumstances, an application may be made for second review.

Items 107 and 108: Section 6

Definition changes

1007. Item 107 repeals definitions that reference the AAT under section 6. Item 108 updates the definitions to reflect the name and features of the Tribunal.

Item 109: Section 6 (definition of decision )

Terminology change

1008. This item makes general terminology changes. This item is a technical amendment needed to ensure that various provisions continue to operate in the same way in the Tribunal. See explanation of general terminology changes above.

Item 110: Section 6

New definitions

1009. This item inserts a definition for 'guidance and appeals panel', 'guidance and appeals panel application' and 'guidance and appeals panel proceeding'. These terms have the same meaning as under the ART Bill. This has been done to ensure the new guidance and appeals panel framework operates consistently with social security legislation.

Item 110A: 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 Royal Commission Report in relation to the publication of Tribunal decisions. Under the Bill, the Tribunal can publish any of its decisions and would be required to publish decisions involving a significant conclusion of law, or with significant implications for Commonwealth policy or administration.

1012. Secrecy provisions are contained in the social security law that prohibit disclosure of protected information and would likely prevent publication of Tribunal decisions to which that information relates. Exceptions to secrecy provisions as set out in subsection 16(2AB) of this Act currently allow the Tribunal to publish reasons for de-identified child support tribunal decisions. Similar amendments to the Paid Parental Leave Act 2010 are required to ensure that de-identified paid parental leave decisions of the Tribunal can also be published.

1013. New subsection 126(1A) provides that despite secrecy provisions, the Tribunal may publish reasons for a Tribunal decision on review so long as the publication does not identify (other than the Secretary):

•

Any party to the review; or

•

Any person related to, associated with a party to which the matter relates; or

•

Any witness in the review concerned.

1014. New subsection 126(1B) sets out types of information that are taken to be information that identifies a person, where it is sufficient to identify that person to a member of the public to which the public is disseminated. This includes information on the particulars 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 or otherwise associated.

1015. These amendments are necessary as the ability for the Tribunal to publish its decisions is important to promoting public trust and confidence in administrative decision-making and its operations and promote transparency in decision-making. Requirements that any publication of a Tribunal decision must be de-identified for paid parental leave matters will protect the identity of individuals and parties

Items 111, 112, 113, 114 and 115: Section 213

Guide to this Part

1016. These items update the Guide to this Part in section 213 to align with general terminology changes. These items are technical amendments and are needed to ensure that various provisions continue to operate in the same way in the Tribunal.

1017. Item 113 also includes references to second review in section 213. The new paragraph provides that a person may apply to the Tribunal for second review if the person is dissatisfied with the decision of the Tribunal on review of an ART claimant decision.

Item 117: Subsection 224(1)

Terminology changes

1018. This item makes minor terminology changes to subsection 224(1). This item is a technical amendment needed to ensure that various provisions continue to operate in the same way in the Tribunal. See explanation of general terminology changes above.

Item 118: After subsection 224(1)

ART review of employer decision - application for review

1019. This item inserts subsection 224(1A) to clarify that a guidance and appeals panel review is also to be considered an 'ART review'. This replaces the concept of 'AAT first review' and 'AAT second review' with 'ART review', to encompass all reviews at the Tribunal. Note that clarifications have been made throughout this Schedule when a provision concerning ART review is taken not to apply to the guidance and appeals panel.

Item 119: Paragraphs 224(5)(a) and (b)

Updating legislative references

1020. This item updates the references to sections in the AAT Act with the equivalent ART Bill provision references and makes relevant terminology changes. This has been done to ensure the Tribunal has jurisdiction to review decisions that are reviewable by the AAT, and that various provisions continue to operate in the same way in the Tribunal.

Item 120: After section 224A

Decision-maker taken to have elected not to participate in ART review proceeding

1021. This item inserts section 224B which operates by providing that the Secretary is automatically taken to have provided an election notice to the Tribunal not to participate in any kind of proceeding for ART review of a decision under this Act. The effect of this section is that the decision-maker is deemed to have provided an election notice for all proceedings for ART review for the review of decisions under this Act, and therefore does not need to appear at any Tribunal proceeding (unless the proceeding is a guidance and appeals panel proceeding or the Tribunal has ordered or agreed that the decision-maker participate in the proceedings in accordance with subclauses 62(1) or 63(2) of the ART Bill).

1022. The effect of this section is that the decision-maker is not an active participant in the proceedings but remains a party to that matter (a non-participating party). This section preserves existing arrangements for parties in relation to the conduct of AAT first review matters in which decision-makers do not currently participate. It aims to promote efficiency and a more informal, less-adversarial Tribunal environment. The Tribunal may still direct a non-participating party to do a thing (such as take part in a dispute resolution process).

1023. In order to participate in a proceeding, a decision-maker would need to give written notice and obtain permission of the Tribunal to participate, under clause 62 of the ART Bill. This could be, for example, where an application for review raises an issue of particular interest for the agency, or where the agency identifies an opportunity to arrive at a negotiated outcome that is favourable to the applicant. In these circumstances, enabling the decision-maker to participate in the proceeding promotes the objective of efficient review. Allowing the Tribunal to determine whether the decision-maker should participate ensures that the Tribunal can consider any concerns other parties may have in relation to the decision-maker participating. Together with clause 64 of the ART Bill, it also helps to promote certainty and predictability about the participation of the decision-maker in particular kinds of proceedings.

Item 121: Section 225, 225A, 225B and 225C

Operation and implementation of decision under ART review

1024. This item repeals and substitutes section 225 so that the Tribunal is unable to make an order staying or otherwise affecting the operation and implementation of the decision before the Tribunal makes its final decision. Substituted section 225 is equivalent to section 225 which operates instead of subsection 41(2) of the AAT Act in relation to review applications at the Social Services and Child Support Division. However, substituted section 225 does not apply if the proceeding is a guidance and appeals panels application. In those circumstances, the Tribunal may make an order staying or otherwise affecting the operation of the decision. This preserves existing arrangements that prohibit Tribunal stay order for AAT first review, but allows Tribunal stay orders to be made at AAT second review.

Remitting decisions for reconsideration

1025. This item inserts section 225A, to make it clear that the Tribunal's power to remit a decision to the decision-maker for reconsideration at any time during a proceeding for review (as allowed for in the ART Bill at clause 85) does not apply in relation to ART review matters under this Act. Section 225A does not apply to guidance and appeals panel reviews where remittal to the original decision-maker is permitted at any time during a proceeding for review.

1026. Tribunal remittal powers during the course of proceedings have been disapplied in this Act for ART review (other than guidance and appeals panel reviews) to retain the existing arrangements concerning remittal powers at the AAT. This section is intended to support timely resolution and avoid Tribunal remittal decisions where it could prolong resolution. In social security matters, it is more appropriate for the Tribunal to only remit a decision to the decision-maker for reconsideration when that remittal is a decision on review to finalise the matter.

Requesting reasons for decision

1027. This item also inserts subsection 225B. Subsection 225B operates instead of clause 268 of the ART Bill which allows persons whose interests are affected by a reviewable decision to request a statement of reasons from the decision-maker within a standard timeframe. The effect of subsection 225B retains the effect of subsection 28(1AAA) of the AAT Act which prevents a person from applying to receive a statement of reasons for a decision made at the social security and child support Division of the AAT under subsection 28(1) of the AAT Act. This reflects the sensitive nature of information that may form the basis of such decisions. This policy protects the privacy of parties to social security review at the Tribunal and ensures that information about decisions cannot be obtained by persons who were not a party to that review.

1028. To clarify, this item does not affect a person's automatic entitlement under the ART Bill to receive a written statement of reasons where they are a party to that relevant ART review matter and decision.

Legal or financial assistance

1029. This item creates section 225C which provides that a person who applies to the Tribunal for review of a decision under this Act cannot make an application to the Attorney-General for legal or financial assistance under clause 294 of the ART Bill. Section 225C clarifies that a person may apply for legal or financial assistance if the application is in relation to a matter that is being considered by the guidance and appeals panel.

1030. This item retains the effect of subsection 69(3) of the AAT Act in which an application for legal assistance to the Attorney-General is not currently available in the Social Services and Child Support Division of the AAT (but is otherwise allowed for AAT second review matters).

Item 122: Subsection 226(2)

Variation of original decision after application is referred to the guidance and appeals panel

1031. This item inserts new subsection 226(1A) which provides that, if the President refers an application to the guidance and appeals panel under clause 122 of the ART Bill, clause 31 of the ART Bill applies after that referral is made. Clause 31 of the ART Bill provides that once an application to the Tribunal has been made, only the Tribunal may alter the decision under review, unless the parties to the proceeding and the Tribunal consent, or the decision has been remitted to the decision-maker under clause 85.

1032. A decision-maker can vary or substitute certain decisions under this Act after an application for review of a decision is made to the Tribunal. Where this occurs, subsection 226(1) provides that the Tribunal review relates to the decision as varied or substituted. This amendment also disapplies subsection 226(1) of the Act in circumstances where new subsection 226(1A) applies.

1033. Once a referral has been made to the guidance and appeals panel because the President considers it raises an issue of significance to administrative decision-making, the decision cannot be altered without the agreement of the Tribunal. This ensures that the Tribunal has visibility of how matters raising issues of significance to administrative decision-making are resolved.

1034. The decision-maker also cannot vary or substitute a decision after an application for second review has been made: see proposed clause 131M of the ART Bill, which provides that despite a contrary intention, clause 31 of the ART Bill applies to second reviews.

Items 123 and 124: Subsections 227(1) and 227(3)

Terminology changes and updating legislative references

1035. These items update terminology. They replace references to sections in the AAT Act with the equivalent provision of the ART Bill. This is a technical amendment and does not affect the operation of the law. See explanation of general terminology changes above.

Items 125, 126, 127 and 128: Section 230

Terminology changes and penalties

1036. These items make general terminology changes to section 230. This is a technical amendment. It does not affect the operation of the law. See explanation of general terminology changes above.

1037. Item 128 repeals the existing penalty for failing to comply with a summons notice. The penalty has been reduced to imprisonment for six months or 30 penalty units, or both, to align with penalties for failing to comply with a summons under clause 116 of the ART Bill. This penalty level is consistent with the approach to penalties for failure to comply with a summons that are set out in Part 9.4 of the Guide to Offences.

Items 129 and 130: Section 231

Terminology changes

1038. These items update terminology in section 231. These are technical amendments and do not affect the operation of the law. See explanation of general terminology changes above.

Item 131: Section 232

Hearing of ART review in private

1039. This item repeals and substitutes section 232 so that a proceeding for ART review must be heard in private, unless the proceeding is a guidance and appeals panel proceeding. This maintains existing arrangements for AAT first review matters to be heard in private.

Item 132: Subsection 233(3)

Terminology changes

1040. This item makes general terminology changes to subsection 233(3). This is a technical amendment. It does not affect the operation of the law.

Item 133: Subsection 234(3)

Updating legislative references

1041. This item updates references to sections in the AAT Act with the equivalent ART Bill provision references. This is a technical amendment and does not affect the operation of the law. See explanation of general terminology changes above.

Item 134: Section 235

Notification of decisions and reasons for Tribunal review

1042. This item repeals section 235 which provides requirements for the Tribunal to provide notice of and reasons for its decisions for certain decisions under the Act. The provision is not necessary as clause 266 of the ART Bill provides general requirements for the Tribunal to provide notice of and reasons for its decisions on a review of a decision. The effect of repealing section 235 is that clause 266 of the ART Bill will apply.

Item 135: Part 5-3

Removal of AAT second review

1043.

1044. These items repeal Part 5-3 of this Act. This is required as the concept of 'AAT second review' has been removed from social services legislation and placed within proposed Part 5A of the ART Bill.

Social Security Act 1991

Items 136, 137 and 138: Subsection 23(1)

Updating definitions and legislative reference

1045. These items replace references to the AAT in the definitions in subsection 23(1) to reflect terminology changes. See explanation of general terminology changes above.

1046. Item 138 also inserts a new note which refers the reader to the definition of 'decision' in the ART Bill.

Item 139: Subsection 1061ZZFL(2)

Terminology changes and updating legislative references

1047. This item updates terminology and replaces reference to sections in the AAT Act with the equivalent provision of the ART Bill. See explanation of general terminology changes above.

Item 140: Paragraphs 1223AB(a) and (b)

Terminology changes and updating legislative references

1048. This item updates terminology and replaces reference to sections in the AAT Act with the equivalent provision of the ART Bill. See explanation of general terminology changes above.

Social Security (Administration) Act 1999

Items 141 and 142: Subsection 138D(6) (note) and subsection 138F(7) (note)

Updating legislative references

1049. These items replace references to sections of the AAT Act in the notes to subsections 138D(6) and 138F(7) with references to the equivalent provisions of the ART Bill. See explanation of general terminology changes above.

Items 143, 144, 145, 146: Section 139

Terminology changes and updating legislative references

1050. These items update terminology in the simplified outline of this Part. Minor language amendments have been made to reflect modern drafting practices. See explanation of general terminology changes above.

1051. Item 144 inserts references to second review in section 139. The new paragraph provides that a person may apply to the Tribunal for second review if the person is dissatisfied with the decision of the Tribunal on review.

Item 147 : Subsection 142(1)

Terminology change

1052. Item 147 updates terminology. See explanation of general terminology changes above.

Item 149: After section 142A

Decision-maker taken to have elected not to participate in ART review proceeding.

1053. This item inserts section 142B, which operates by providing that the decision-maker is automatically taken to have provided an election notice to the Tribunal not to participate in any kind of proceeding for ART review of a decision under this Act. The effect of this section is that the decision-maker is deemed to have provided an election notice for all proceedings for ART review for the review of decisions under this Act, and therefore does not need to appear at any Tribunal proceeding (unless the proceeding is a guidance and appeals panel proceeding or the Tribunal has ordered or agreed that the decision-maker participate in the proceedings in accordance with subclauses 62(1) or 63(2) of the ART Bill).

1054. The effect of this section is that the decision-maker is not an active participant in the proceedings but remains a party to that matter (a non-participating party). This section preserves existing arrangements for parties in relation to the conduct of AAT first review matters in which decision-makers do not currently participate. It aims to promote efficiency and a more informal, less-adversarial Tribunal environment. The Tribunal may still direct a non-participating party to do a thing (such as take part in a dispute resolution process).

1055. In order to participate in a proceeding, a decision-maker would need to give written notice and obtain permission of the Tribunal to participate, under clause 62 of the ART Bill. This could be, for example, where an application for review raises an issue of particular interest for the agency, or where the agency identifies an opportunity to arrive at a negotiated outcome that is favourable to the applicant. In these circumstances, enabling the decision-maker to participate in the proceeding promotes the objective of efficient review. Allowing the Tribunal to determine whether the decision-maker should participate ensures that the Tribunal can consider any concerns other parties may have in relation to the decision-maker participating. Together with clause 64 of the ART Bill, it also helps to promote certainty and predictability about the participation of the decision-maker in particular kinds of proceedings.

Item 150: Subdivision C of Division 2 of Part 4A (heading)

Terminology changes

1056. This item makes terminology changes to the heading at Subdivision C, Division 2, Part 4A of this Act. See explanation of general terminology changes above.

Items 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168: Table at Section 147

Application and modification of ART Bill

1057. These items make amendments to items in the table at section 147 to ensure that various provisions continue to operate in the same way in the Tribunal.

Terminology changes and technical amendments

1058. Items 151, 152, 153, 154, 155, 156, 158, 159, 160, 161, 164 and 165 are all terminology and legislative reference updates. See explanation of general terminology changes above.

Hearing of ART review in private and stay orders

1059. Item 157 repeals item 2 in the table which currently disapplies the existing public and private hearings requirement under the AAT Act. This is a necessary amendment to allow public hearings for guidance and appeals panel proceedings. The existing effect of requiring private hearings for AAT first review matters under this Act is replicated in item 174 below. Item 174 ensures an ART review must be heard in private, unless the proceeding is a guidance and appeals panel proceeding.

1060. Item 157 also repeals item 4 in the table which currently disapplies Tribunal powers to issue stay orders under the AAT Act. This is a necessary amendment to allow stay orders to be made in relation to a guidance and appeals panel application.

Employment pathway decisions

1061. Item 162 inserts table item 6A concerning employment pathway plan decisions. This is a necessary amendment due to structural changes to provisions in the ART Bill. This amendment has the effect of retaining the effect of existing table item 6, so that the Tribunal cannot make a decision to vary or substitute an employment pathway plan decision.

Reasons for decisions

1062. Item 163 repeals item 7 in the table which provides requirements for the Tribunal to provide notice of and reasons for its decisions for certain decisions under the Act. The provision is not necessary as clause 266 of the ART Bill provides general requirements for the Tribunal to provide notice of and reasons for its decision on review of a decision. The effect of repealing item 7 in this table is that clause 266 of the ART Bill will apply. This is a consequential amendment due to the repeal of section 178 by item 175 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 from subsection 43(6) of the AAT Act to a reference to subclauses 108(4) and 108(5) of the ART Bill. This amendment is technical in nature and ensures that this provision continues to operate in substantively the same way in the Tribunal.

1064. Item 166 repeals and substitutes the cell at table item 8, column headed "Application or modification of provision of AAT Act". This is a substantive amendment to clarify that date of effect provisions under this Act apply consistently and appropriately to Tribunal decisions. This amendment also makes terminology changes. See explanation of general terminology changes above.

1065. The effect of the amendment is to provide that a decision of the Tribunal to vary or set aside a decision takes effect from the day the person made the first review application, including in circumstances where second review is conducted, if the application was made more than 13 weeks after they were given written notice of the decision under social security law. This ensures that a person who makes an application for review at the Tribunal, and does so within the 13-week timeframe, is not unfairly impacted by the date of effect rules should they make a second review application in relation to the decision at a later time and the Tribunal varies or substitutes the decision under review.

1066. If the person applies to the Tribunal less than 13 weeks from when they were notified of the decision, the varied or substituted Tribunal decision will take effect from when the decision under review was made.

1067. Item 8 only applies where the decision to vary or set aside a decision has the effect of granting, making a direct payment of, or increasing the rate of a person's social security payment or issue of a concession card.

1068. Item 168 is a clarifying provision in relation to item 8, and uses the term 'first review application' to refer to the application for ART review of a reviewable decision.

Reasons for decisions

1069. Item 167 adds table item 9 operate instead of clause 268 of the ART Bill. The effect of table item 9 retains the effect of subsection 28(1AAA) of the AAT Act which prevents a person from applying to receive a statement of reasons for a decision made at the social security and child support Division of the AAT under subsection 28(1) of the AAT Act. This reflects the sensitive nature of information that may form the basis of such decisions. This policy protects the privacy of parties to social security review at the Tribunal and ensures that information about decisions cannot be obtained by persons who were not a relevant party to that review.

1070. To clarify, item 167 of this Schedule does not affect a person's automatic entitlement under the ART Bill to receive a written statement of reasons where they are a party to that relevant ART review matter and decision.

Item 169: At the end of Subdivision C of Division 2 of Part 4A

Operation and implementation of decision under ART review

1071. This item creates section 147A so that the Tribunal is unable to make an order staying or otherwise affecting the operation and implementation of the decision before the Tribunal makes its final decision. Section 147A replicates the effect of existing table item 4 in section 147, which operates instead of subsection 41(2) of the AAT Act. ]

Remitting decisions for reconsideration

1072. This item inserts section 147B, to make it clear that the Tribunal's power to remit a decision to the decision-maker for reconsideration at any time during a proceeding for review (as allowed for in the ART Bill at clause 85) does not apply in relation to ART review matters under this Act.

1073. Tribunal remittal powers during the course of proceedings have been disapplied in this Act for ART review (other than guidance and appeals panel reviews) to retain the existing arrangements concerning remittal powers at the AAT. This section is intended to support timely resolution of matters and avoid remittal where it might prolong resolution. In social security matters, it is more appropriate for the Tribunal to only remit a decision to the decision-maker for reconsideration when that remittal is a decision on review to finalise the matter.

Legal or financial assistance

1074. This item creates section 147C which provides that a person who applies to the Tribunal for review of a decision under this Act cannot make an application to the Attorney-General for legal or financial assistance under clause 294 of the ART Bill. Section 147C clarifies that a person may apply for legal or financial assistance if the application is in relation to a matter that is being considered by the guidance and appeals panel.

1075. This item retains the effect of subsection 69(3) of the AAT Act in which an application for legal assistance to the Attorney-General is not currently available in the Social Services and Child Support Division of the AAT (but is otherwise allowed for AAT second review matters).

Item 170: Subsection 148(1)

Procedure on receipt of application for ART review

1076. This item repeals and substitutes subsection 148(1) to update terminology but otherwise retains the effect of subsection 148(1) so that the Tribunal may, in relation to an application for ART review, request the Secretary to lodge certain documents with the Tribunal.

Item 171: Section 165A (heading)

Terminology changes

1077. This item updates terminology to the heading of section 165A. See explanation of general terminology changes above.

Item 172: Subsection 165A(1)

Tribunal power to obtain information on review

1078. This item repeals and substitutes subsection 165A(1) so that the Tribunal can require any person who it believes has information relevant to an ART review to produce that information. While previously this was only applicable to AAT first review, this is now broadly applicable across all ART reviews (including guidance and appeals panel reviews).

1079. This item includes a note which directs the reader to clause 74 of the ART Bill which deals with the Tribunal's power to summon a person to give evidence or produce documents.

Item 173: Subsection 165A(2) (penalty)

Penalties

1080. This item repeals the existing penalty for failing to comply with a summons notice. The penalty has been reduced to imprisonment for six months or 30 penalty units, or both, to align with the penalty for failing to comply with a summons under clause 116 of the ART Bill. This penalty level is consistent with the approach to penalties for failure to comply with a summons that are set out in Part 9.4 of the Guide to Offences.

Item 174: Section 168

Hearing of certain ART reviews in private

1081. This item repeals and substitutes section 168 so a proceeding for ART review must be heard in private, unless the proceeding is a guidance and appeals panel proceeding. This maintains existing arrangements under section 168 for AAT first review matters to be heard in private.

Item 175: Section 178

Notification of decision and statement of reason

1082. This item repeals section 178 which provides requirements for the Tribunal to provide notice of and reasons for its decisions for certain decisions under the Act. The provision is not necessary as clause 266 of the ART Bill provides general requirements for the Tribunal to provide notice of and reasons for its decisions on a review of a decision. The effect of repealing section 178 is that clause 266 of the ART Bill will apply.

Items 176 and 177: Division 3 of Part 4A and Division 4 of Part 4A (heading)

Removal of AAT second review

1083. Item 176 repeals Division 3 of Part 4A of this Act in its entirety to reflect the removal of the concept of 'AAT second review'. The ability to seek further tribunal review of matters will occur through the guidance and appeals panel framework that is established in the ART Bill.

1084. Item 177 is a technical structural change to the Act that repeals the subheading at Division 4 of Part 4A of this Act. The subheading is no longer necessary due to the repeal of Division 3 of Part 4A by item 176 and the removal of AAT second review.

Item 178: Subsections 182(2) and (3)

Variation of original decision after application is made for AAT first review

1085. This item repeals subsections 182(2) and (3) and substitutes a new subsection 182(2).

1086. A decision-maker can vary or substitute a decision under this Act after an application for review of a decision is made to the Tribunal. Where this occurs, subsection 182(1) provides that the Tribunal review relates to the decision as varied or substituted.

1087. New subsection (2) provides that if the President of the Tribunal refers the application to the guidance and appeals panel under clause 122 of the ART Bill, clause 31 of the ART Bill applies. That is, once a referral has been made to the guidance and appeals panel because the President considers it raises an issue of significance to administrative decision-making, the decision cannot be altered except by the Tribunal unless the parties to the review proceeding and the Tribunal agree. This ensures that the Tribunal has visibility of how matters raising issues of significance to administrative decision-making are resolved.

1088. The decision-maker also cannot vary or substitute a decision after an application for second review has been made (see clause 131M of the ART Bill, which provides that despite a contrary intention, clause 31 of the ART Bill applies to second reviews).

Items 179 and 180: Subsections 183(1) and 183(2)

Removal of AAT second review

1089. These items reflect the removal of AAT second review and the technical structural change to section 183 by the repeal of subsection 183(2).

Items 180A: After subsection 201(1)

Publishing reasons for a Tribunal decision

1090. This item inserts new subsections 201(1A) and (1B) to the Social Security (Administration) Act 1999.

1091. The ART Bill implements recommendations of the Robodebt Royal Commission Report in relation to the publication of Tribunal decisions. Under the ART Bill, the Tribunal can publish any of its decisions and would be required to publish decisions involving a significant conclusion of law, or with significant implications for Commonwealth policy or administration.

1092. Secrecy provisions are contained in the social security law that prohibit disclosure of protected information and would likely prevent publication of Tribunal decisions to which that information relates. Exceptions to secrecy provisions as set out in subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988 currently allow the Tribunal to publish reasons for de-identified child support tribunal decisions. These amendments to the Social Security (Administration) Act 1999 ensure that de-identified social security decisions of the Tribunal can also be published.

1093. New subsection 201(1A) provides that despite secrecy provisions, the Tribunal may publish reasons for a Tribunal decision on review so long as the publication does not identify (other than the Secretary):

•

Any party to the review; or

•

Any person related to, associated with a party to which the matter relates; or

•

Any witness in the review concerned.

1094. New subsection 201(1B) sets out types of information that are taken to be information that identifies a person, where it is sufficient to identify that person to a member of the public to which the publication is disseminated. This includes information on the particulars 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 or otherwise associated.

Items 181 and 182: Subclause 1(1) of Schedule 1

Updating definitions

1095. This item updates definitions under subclause 1(1) of Schedule 1 to reflect terminology changes. See explanation of general terminology changes above.

Student Assistance Act 1973

Items 183 and 184: Subsection 3(1)

Updating definitions

1096. These items update definitions under subsection 5(1) to reflect terminology changes. See explanation of general terminology changes above.

Item 185: Subsection 12ZQ(2)

Review of decision of Commissioner

1097. This item repeals and substitutes subsection 12ZQ(2). This item makes general terminology changes and updates references to sections in the AAT Act with references to the equivalent provisions in the ART Bill. This retains arrangements under this Act and allows applicants making student assistance applications to seek a statement of reasons from the original decision-maker.

Item 186: Subsection 43X(3) (definition of decision )

Updating Definition

1098. This item substitutes the definition of 'decision' in the AAT Act with its meaning under the ART Bill. This is a technical amendment and does not affect the operation of the law.

Item 187: Paragraph 304(2)(a)

Timeframe for application for review

1099. This item omits '13 weeks' and substitutes '90 days' at paragraph 304(2)(a). These items standardise the timeframe to apply for review of certain decisions, in order to create a consistent timeframe across similar applications for review of decisions.

Items 188 and 189: Subsection 308D(6) (note) and Subsection 308F(7) (note)

Updating legislative references

1100. These items update the notes so references to sections in the AAT Act are replaced with the equivalent clause under the ART Bill. These are technical amendments and do not affect the operation of the law. See explanation of general terminology changes above.

Items 192, 193, 194 and 195: Section 309

Terminology changes

1101. These items make terminology updates to the simplified outline in section 309. These are technical amendments and do not affect the operation of the law. See general terminology changes above.

1102. Item 193 repeals the paragraph beginning with 'If a person is dissatisfied with a decision of the AAT' and substitutes it with 'If a person is dissatisfied with a decision of the ART on ART review, the person may apply to the ART for second review'.

Item 196: Subsection 311(1)

Terminology changes

1103. This item makes terminology changes to subsection 311(1). This is a technical amendment and does not affect the operation of the law. See general terminology changes above.

Item 198: After section 311A

Decision-maker taken to have elected note to participate in ART review proceeding

1104. This item inserts section 311B which operates by providing that the Secretary is automatically taken to have provided an election notice to the Tribunal not to participate in any kind of proceeding for ART review of a decision under this Act. The effect of this section is that the decision-maker is deemed to have provided an election notice for all proceedings for ART review for the review of decisions under this Act, and therefore does not need to appear at any Tribunal proceeding (unless the proceeding is a guidance and appeals panel proceeding or the Tribunal has ordered or agreed that the decision-maker participate in the proceedings in accordance with subclauses 62(1) or 63(2) of the ART Bill).

1105. The effect of this section is that the decision-maker is not an active participant in the proceedings but remains a party to that matter (a non-participating party). This section preserves existing arrangements for parties in relation to the conduct of AAT first review matters in which decision-makers do not currently participate. It aims to promote efficiency and a more informal, less-adversarial Tribunal environment. The Tribunal may still direct a non-participating party to do a thing (such as take part in a dispute resolution process).

1106. In order to participate in a proceeding, a decision-maker would need to give written notice and obtain permission of the Tribunal to participate, under clause 62 of the ART Bill. This could be, for example, where an application for review raises an issue of particular interest for the agency, or where the agency identifies an opportunity to arrive at a negotiated outcome that is favourable to the applicant. In these circumstances, enabling the decision-maker to participate in the proceeding promotes the objective of efficient review. Allowing the Tribunal to determine whether the decision-maker should participate ensures that the Tribunal can consider any concerns other parties may have in relation to the decision-maker participating. Together with clause 64 of the ART Bill, it also helps to promote certainty and predictability about the participation of the decision-maker in particular kinds of proceedings.

Items 199 and 200: Paragraph 312(1)(a) and subsection 312(2)

Timeframe for application for review

1107. Item 199 omits '13 weeks' and substitutes '90 days' at paragraph 312(1)(a). These items standardise the timeframe to apply for review of certain decisions, in order to create a consistent timeframe across similar applications for review of decisions.

1108. Item 200 makes technical amendments at subsection 312(2) to update references to sections in the AAT Act with equivalent references in the ART Bill.

Item 201: Section 313

Operation and implementation of decision under ART review

1109. This item repeals and substitutes section 313 so that the Tribunal is unable to make an order staying or otherwise affecting the operation and implementation of the decision before the Tribunal makes its final decision. Substituted section 313 is equivalent to section 313 which operates instead of subsection 41(2) of the AAT Act in relation to review applications at the Social Services and Child Support Division.

Remitting decisions for reconsideration

1110. This item inserts section 313A, to make it clear that the Tribunal's power to remit a decision to the decision-maker for reconsideration at any time during a proceeding for review (as allowed for in the ART Bill at clause 85) does not apply in relation to ART review matters under this Act. Section 313A does not apply to guidance and appeals panel reviews where remittal to the original decision-maker is permitted at any time during a proceeding for review.

1111. Tribunal remittal powers during the course of proceedings have been disapplied in this Act for ART review to retain the existing arrangements concerning remittal powers at the AAT. This section is intended to support timely resolution and avoid remittal where it might prolong resolution. In social security matters, it is more appropriate for the Tribunal to only remit a decision to the decision-maker for reconsideration when that remittal is a decision on review to finalise the matter.=

Requesting reasons for decision

1112. This item also inserts subsection 313B. Subsection 313B retains the effect of subsection 28(1AAA) of the AAT Act which prevents a person from applying to receive a statement of reasons for a decision made at the Social Security and Child Support Division of the AAT under subsection 28(1) of the AAT Act. This reflects the sensitive nature of information that may form the basis of such decisions. This policy protects the privacy of parties to social security review at the Tribunal and ensures that information about decisions cannot be obtained by persons who were not a relevant party to that review.

1113. To clarify, this item does not affect a person's automatic entitlement under the ART Bill to receive a written statement of reasons where they are a party to that relevant ART review matter and decision.

Legal or financial assistance

1114. This item creates section 313C which provides that a person who applies to the Tribunal for review of a decision under this Act cannot make an application to the Attorney-General for legal or financial assistance under clause 294 of the ART Bill. Section 313C clarifies that a person may apply for legal or financial assistance if the application is in relation to a matter that is being considered by the guidance and appeals panel.

1115. This item retains the effect of subsection 69(3) of the AAT Act in which an application for legal assistance to the Attorney-General is not currently available in the Social Services and Child Support Division of the AAT (but is otherwise allowed for AAT second review matters).

Item 202: Subsection 315(2)

Variation of original decision after application is made for ART review

1116. A decision-maker can vary or substitute a decision under this Act after an application for review of a decision is made to the AAT. Where this occurs, current subsection 315(1) provides that the application relates to the decision as varied or substituted.

1117. Current subsection 315(2) provides that the applicant may discontinue or withdraw their application if they do not wish the AAT to continue reviewing the varied or substituted decision.

1118. New subsection 315(2), as substituted by this item, provides that if the President of the Tribunal refers the application to the guidance and appeals panel under clause 122 of the ART Bill, clause 31 of the ART Bill applies. That is, once a referral has been made to the guidance and appeals panel because the President considers it raises an issue of significance to administrative decision-making, the decision cannot be altered except by the Tribunal unless the parties to the review proceeding and the Tribunal agree. This ensures that the Tribunal has visibility of how matters raising issues of significance to administrative decision-making are resolved.

1119. The decision-maker also cannot vary or substitute a decision after an application for second review has been made (see clause 131M of the ART Bill, which provides that despite a contrary intention, clause 31 of the ART Bill applies to second reviews).

Item 202A: Section 315A

Hearing of certain Tribunal hearings in private

1120. This item inserts new section 315A to the Student Assistance Act 1973 so that Tribunal reviews 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 student assistance matters, making private hearings the default position for Tribunal reviews across the social security portfolio. This amendment also standardises procedural requirements for similar types of reviews, ensuring efficiency for the Tribunal.

Item 203: Section 317

Terminology changes and updating legislative references

1121. This item updates terminology and replaces references to sections in the AAT Act with the equivalent clause of the ART Bill. It is a technical amendment and does not affect the operation of the law. See explanation of general terminology changes above.

Item 204: Section 318

Notification of decisions and statement of reasons for Tribunal review

1122. This item repeals section 318 which provides requirements for the Tribunal to provide notice of decisions and reasons for its decisions for certain decisions under the Act. The provision is not necessary as clause 266 of the ART Bill provides general requirements for the Tribunal to provide notice of and reasons for its decisions on a review of a decision. The effect of repealing section 318 is that clause 266 of the ART Bill will apply.

Items 205 and 206: Section 319

Terminology changes and updating legislative references

1123. These items update terminology and replace references to sections in the AAT Act with the equivalent clauses of the ART Bill. They are technical amendments and do not affect the operation of the law. See explanation of general terminology changes above.

Item 207: Subdivision C of Division 2 of Part 9

Removal of AAT second review

968. Item 207 repeals Subdivision C of Division 2 of Part 9 of this Act. This is required as the concept of 'AAT second review' has been removed from social services legislation and placed within proposed Part 5A of the ART Bill.

Item 207A: Section 350

Technical amendment

1124. This item amends section 350 of the Student Assistance Act 1973. The item makes minor 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 Tribunal decisions

1125. The ART Bill implements recommendations of the Robodebt Royal Commission Report in relation to the publication of Tribunal decisions. Under the ART Bill, the Tribunal can publish any of its decisions and would be required to publish decisions involving a significant conclusion of law, or with significant implications for Commonwealth policy or administration

1126. Secrecy provisions are contained in the social security law that prohibit disclosure of protected information and may prevent publication of Tribunal decisions to which that information relates. Exceptions to secrecy provisions as set out in subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988 currently allow the Tribunal to publish reasons for de-identified child support Tribunal decisions. These amendments to the Student Assistance Act 1973 are required to ensure that de-identified student assistance decisions of the Tribunal can also be published.

1127. New subsection 350(2) provides that despite secrecy provisions, the Tribunal may publish reasons for a Tribunal decision on review so long as the publication does not identify (other than the Secretary):

•

any party to the review; or

•

any person related to, associated with a party to which the matter relates; or

•

any witness in the review concerned.

1128. New subsection 350(3) sets out types of information that are taken to be information that identifies a person, where it is sufficient to identify that person to a member of the public to which the publication is disseminated. This includes information on the particulars 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 or otherwise associated

1129. These amendments are necessary as the ability for the Tribunal to publish its decisions is important to promoting public trust and confidence in administrative decision-making and its operations and to promote transparency in decision-making. Requirements that any publication of a Tribunal decision must be de-identified for student assistance matters will protect the identity of individuals and parties.

PART 2 - BULK AMENDMENTS

Items 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218 and 219: Various provisions in DSS portfolio Acts

1130. These items include tables which make bulk amendments to the following DSS portfolio Acts:

•

A New Tax System (Family Assistance) Act 1999

•

A New Tax System (Family Assistance) (Administration) Act 1999

•

Australian Hearing Services Act 1991

•

Child Support (Assessment) Act 1989

•

Child Support (Registration and Collection) Act 1988

•

Disability Services Act 1986

•

Marriage Act 1961

•

National Disability Insurance Scheme Act 2013

•

Paid Parental Leave Act 2010

•

Social Security Act 1991

•

Social Security (Administration) Act 1999

•

Student Assistance Act 1973

Terminology changes and updating legislative references

1131. The amendments make terminology changes, such as updating outdated references to the 'Administrative Appeals Tribunal', 'AAT' or 'Administrative Appeals Tribunal Act 1975', so the provisions instead refer to the 'Administrative Review Tribunal', 'ART' or the 'Administrative Review Tribunal Act 2024'. These amendments ensure that the Tribunal has jurisdiction to review decisions that are reviewable by the AAT, and that various provisions continue to operate in the same way in the Tribunal.

SCHEDULE 4 - AMENDMENTS RELATING TO THE SECURITY DIVISION

OUTLINE

1132. Schedule 4 of the Consequential Bill contains amendments to a number of Acts, including (but not only) amendments that are relevant to security matters (noting that some of the amendments in Schedule 4, including a number of amendments to the FOI Act, do not relate to security matters).

1133. Rules related to the conduct of proceedings relating to security matters are set out across various Acts. The ART Bill harmonises and consolidates these rules. Existing protections which apply to matters heard in the Security Division will continue to apply but will be consolidated in the ART Bill, rather than being set out in other Acts. As such, this Schedule repeals a number of provisions that will now be covered by the ART Bill.

1134. This Schedule ensures that other Acts will continue to provide a pathway for review of certain decisions to the Intelligence and Security jurisdictional area and will provide for who can make such an application.

1135. It also makes a range of minor amendments, replacing references to the AAT and the AAT Act with updated terminology, replacing legislative references to provisions of the AAT Act with references to the equivalent provision under the proposed Administrative Review Tribunal Act 2024, and repealing provisions which are no longer necessary as required. These amendments ensure the ART has jurisdiction to review decisions that are reviewable by the AAT, and that various provisions will continue to operate in the same way as the current law for the Tribunal.

1136. This Schedule contains consequential amendments covering the following Acts:

•

Archives Act 1983

•

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 items in this Schedule make simple terminology changes, such as repealing references to the 'Administrative Appeals Tribunal', the 'AAT' and the 'Administrative Appeals Tribunal Act 1975', and replacing them with references to the 'Administrative Review Tribunal', the 'ART' and the 'Administrative Review Tribunal Act 2024'. These amendments ensure that the Tribunal has jurisdiction to review decisions that were reviewable by the AAT, and that the provisions under those laws continue to operate in substantively the same way in relation to the Tribunal.

Archives Act 1983

Item 1: Subsection 43(4)

Updating legislative references

1138. This item updates a legislative reference to the AAT Act with the equivalent provision of the ART Bill. Section 29 of the AAT Act deals with the manner of applying for review to the Tribunal, including the time in which an application for review must be made. This matter is dealt with in clause 18 of the ART Bill. This item is a technical amendment and is needed to ensure subsection 43(4) of the Archives Act continues to operate in substantively the same way in relation to the Tribunal.

Item 2: Subsection 43(6)

Updating legislative references

1139. This item updates a legislative reference to the AAT Act with the equivalent provision of the ART Bill. Section 28 of the AAT Act deals with when a person may obtain reasons for a decision in respect of which an application may be made to the Tribunal for review. These matters are dealt with in clause 268 of the ART Bill. This item is a technical amendment and is needed to ensure subsection 43(6) of the Archives Act continues to operate in substantively the same way in relation to the Tribunal.

Item 3: Subsection 52(1)

Updating legislative references

1140. This item updates legislative references to the AAT Act with the equivalent provisions of the ART Bill. Subsections 35(2), (3) and (4) of the AAT Act deal with the power of the Tribunal to make orders for private hearings, or the non-publication and non-disclosure of information relating to a proceeding. These matters are dealt with in subclauses 69(3), and 70(1) and (2) of the ART Bill. This item is a technical amendment and is needed to ensure subsection 52(1) of the Archives Act continues to operate in substantively the same way in relation to the Tribunal.

Item 4: Subsection 52(1)

Non-disclosure of certain matters

1141. This item repeals paragraph 52(1)(b) and makes subsequent amendments to the numbering of subsection 52(1). Paragraph 52(1)(b) specifies that the Tribunal must give particular weight to a submission made by the National Archives of Australia in determining whether to make orders for a private hearing, or non-publication or non-disclosure of information where the proceedings relate to a record that is claimed to be an exempt record pursuant to paragraph 33(1)(a) or (b) of the Archives Act. These matters are dealt with in paragraph 157(2)(b) of the ART Bill. Paragraph 52(1)(b) is being repealed to support a policy of standardising provisions relating to administrative review across Commonwealth legislation where there is no need for different provisions to apply. This ensures provisions in the ART Bill are not duplicated or disapplied unnecessarily in other pieces of legislation. Ultimately, this policy streamlines Tribunal processes and simplifies and improves administrative practices.

Item 5: Paragraphs 52(2)(a) and (b)

Updating legislative references

1142. This item updates subsequent references to provisions of subsection 52(1) as a result of amendments to the structure of subsection 52(1).

Item 6: Subsection 53(1)

Updating legislative references

1143. This item updates legislative references to the AAT Act with the equivalent provisions of the ART Bill. Sections 37 and 38AA of the AAT Act deal with the lodging of material documents with the Tribunal. These matters are dealt with in clauses 23, 25 and 26 of the ART Bill. This item is a technical amendment and is needed to ensure subsection 53(1) of the Archives Act continues to operate in substantively the same way in relation to the Tribunal.

Item 7: After subsection 53(1A)

Giving documents to other parties

1144. This item inserts a new provision after subsection 53(1A) to clarify that, if the Tribunal is satisfied that a record is an exempt record, clause 27 of the ART Bill does not apply in relation to the document. Clause 27 would generally require a decision-maker to give copies of reasons and documents to other parties if the decision-maker was required to give those documents to the Tribunal. This ensures the appropriate continued protection of documents that the Tribunal is satisfied are exempt records.

Item 8: Subsection 53(5)

Updating legislative references

1145. This item updates a legislative reference to the AAT Act with the equivalent provision of the ART Bill, clause 187. This item is a technical amendment and is needed to ensure subsection 53(5) of the Archives Act continues to operate in substantively the same way in relation to the Tribunal.

Items 9 and 10: Subsections 53(6) and (7)

Updating legislative references

1146. These items update legislative references to the AAT Act with the equivalent provisions of the ART Bill. Subparagraph 46(1)(c)(i) of the AAT Act deals with the sending of documents from the FCA to the FCFCOA if an appeal is transferred between the two courts. These matters are dealt with in subclause 187(2) of the ART Bill. These items are technical amendments and are needed to ensure subsections 53(6) and (7) of the Archives Act continue to operate in substantively the same way in relation to the Tribunal.

Item 11: Subsection 55A(5)

Updating legislative references

1147. This item repeals subsection 55A(5) and replaces it with a new provision . This item also updates references to provisions of the ART Bill.

1148. Paragraph 55A(5)(a) provides that nothing in section 55A prevents a person from making an application under clause 123 of the ART Bill for the decision of the Tribunal to be referred to the guidance and appeals panel. This is required as the guidance and appeals panel is a new function of the ART and was not contemplated by current subsection 55A(5).

1149. Existing subsection 55A(5) clarifies that nothing in section 55A affects the power of the FCA or the FCFCOA to make orders under section 44A of the AAT Act in relation to matters other than staying the decision of the Tribunal. These matters are dealt with in paragraph 55A(5)(b). The reference to section 44A is also updated to refer to the equivalent provision of the ART Bill, being clause 178.

Item 12: Amendments of listed provisions

Terminology changes

1150. This item amends terminology. See explanation of general terminology changes above.

Australian Crime Commission Act 2002

Item 13: Paragraph 19A(6)(a)

Terminology changes

1151. This item repeals and substitutes paragraph 19A(6)(a). This is necessary to remove the reference to the 'Security Appeals Tribunal', which no longer exists, and update the reference to the 'Administrative Review Tribunal'.

Item 14: Subsection 19A(8)

Updating definitions

1152. This item inserts the definition of officer of the Tribunal, which means the Principal Registrar or a staff member within the meaning of the ART Bill. This reflects the amendment to paragraph 19A(6)(a).

Item 15: Subsection 19A(8) (paragraphs (c), (d) and (e) of the definition of prescribed officer )

Updating definitions

1153. This item removes references to the 'Security Appeals Tribunal', which no longer exists, and updates the references to the 'Administrative Review Tribunal'.

Item 16: Subsection 19A(8) (paragraph (e) of the definition of prescribed officer )

Updating definitions

1154. This item updates the reference from 'that Tribunal' to 'the Administrative Review Tribunal'.

Items 17 and 18: Section 36A (definition of AAT Act )

Updating definitions

1155. These items repeal the definition of AAT Act and insert a definition of ART Act to mean the Administrative Review Tribunal Act 2024.

Item 19: Section 36A (definition of authorised member )

Updating definitions

1156. This item repeals the definition of authorised member as the term will no longer be used in the ACC Act due to other amendments.

Item 20: Section 36A (definition of officer of the Tribunal )

Updating definitions

1157. This item repeals the definition of officer of the Tribunal and replaces it with a definition of Principal Registrar or staff member within the meaning of the ART Bill.

Item 21: Section 36A (definition of President)

Updating definitions

1158. This item repeals the definition of President as the term will no longer be used in the ACC Act due to other amendments.

Item 22: Section 36A (definition of presidential member )

Updating definitions

1159. This item repeals the definition of presidential member as the term will no longer be used in the ACC Act due to other amendments.

Item 23: Section 36A (definition of Registrar)

Updating definitions

1160. This item repeals the definition of Registrar as the term will no longer be used in the ACC Act due to other amendments.

Item 24: Section 36A (definition of Tribunal)

Updating definitions

1161. This item repeals the definition of Tribunal and replaces it with a definition of 'Administrative Review Tribunal'.

Item 25: Subsection 36F(1) (note)

Updating legislative references

1162. This item updates legislative references to the AAT Act with the equivalent provision of the ART Bill, clause 18. This item is a technical amendment and is needed to ensure the note in subsection 36F(1) of the ACC Act remains accurate.

Item 26: Subsections 36F(3) to (5)

Repealing provisions no longer required

1163. This item repeals subsections 36F(3) to (5), which deal with applications for review of a Tribunal decision on the basis of fresh evidence. This matter is dealt with in subclauses 140(2) and (3) of the ART Bill. Subsections 36F (3), (4) and (5) are being repealed to support a policy of standardising provisions relating to administrative review across Commonwealth legislation where there is no need for different provisions to apply. This ensures provisions in the ART Bill are not duplicated or disapplied unnecessarily in other pieces of legislation. Ultimately, this policy streamlines Tribunal processes and simplifies and improves administrative practices.

Item 27: Subsection 36F(6)

Updating legislative references

1164. This item updates a legislative reference to the AAT Act with the equivalent provision of the ART Bill, subclause 17(1). Subsection 27(1) of the AAT Act sets out who can make an application to the Tribunal for review of a decision. This item is a technical amendment and is needed to ensure that subsection 36F(6) of the ACC Act continues to operate in substantively the same way in relation to the Tribunal.

Item 28: Sections 36G to 36N

Repealing provisions no longer required

1165. This item repeals sections 36G to 36N. The matters set out in these sections are dealt with in the ART Bill, as explained below, and no longer need to be specified in the ACC Act.

1166. Section 36G sets out the requirements for an application made to the Tribunal for a review of an adverse criminal intelligence assessment. Requirements as to the content of applications are dealt with in clause 34 of the ART Bill.

1167. Section 36H sets out the procedures that must be followed when an application is made to the Tribunal for review of an adverse criminal intelligence assessment. Requirements as to the notification of receipt of an application would be dealt with in clause 139 of the ART Bill. The obligation imposed on the Chief Executive Officer of the ACIC to lodge certain information with the Tribunal are dealt with in clause 141 of the ART Bill.

1168. Section 36J sets out that reviews in respect of adverse criminal intelligence assessments must be heard in the Security Division of the AAT and outlines the constitution requirements for related proceedings. These matters are dealt with in clauses 134 and 145 of the ART Bill respectively.

1169. Section 36K sets out the procedure for review of adverse criminal intelligence assessment decisions in the AAT. These procedures would be covered by the ART Bill, as outlined below.

•

Subsection 36K(2) specifies the parties to the proceeding. This is dealt with in clause 147 of the ART Bill. Subsection 36K(2) also sets out the ability of the Commonwealth agency to which the assessment was given to make submissions and adduce evidence. This is dealt with in clause 150 of the ART Bill.

•

Subsection 36K(3) outlines the information the Chief Executive Officer of the ACIC must provide to the Tribunal. This is dealt with in clause 141 of the ART Bill.

•

Subsection 36K(4) sets out the ability of the Tribunal to require party attendance at hearings. This is dealt with in clause 80 of the ART Bill.

•

Subsection 36K(5) sets out that proceedings for review of adverse criminal intelligence assessments are to be heard in private. This is dealt with in clause 148 of the ART Bill.

•

Subsections 36K(6) and (7) set out a right of the parties to be present at hearings. This is dealt with in clause 149 of the ART Bill.

•

Subsections 36K(8), (9), (10) and (11) set out the process for and effect of issuing a 'security certificate' by the Minister. These procedures are dealt with in clause 158 of the ART Bill.

•

Subsection 36K(12) requires the Tribunal to do all things necessary to ensure the identity of a person giving evidence is protected, where requested by the Chief Executive Officer of the ACIC. This is dealt with in clause 160 of the ART Bill.

•

Subsections 36K(13), (14), (15), (16), (17) and (18) set out the order of proceedings for review of an adverse criminal intelligence assessment. These processes are dealt with in clauses 151, 152 and 153 of the ART Bill.

•

Subsection 36K(19) sets out the circumstances that can give rise to dismissal of an application. This is dealt with in clauses 99 and 100 of the ART Bill.

1170. Section 36L outlines the procedures and circumstances for the issue of a public interest certificate by the Minister in relation to information or contents of a document. This is dealt with in clause 161 of the ART Bill.

•

Subsection 36L(11) sets out that a certificate issued by the Chief Executive Officer of the ACIC under subsection 36C(5) has the same effect as a public interest certificate. This is dealt with in clause 162 of the ART Bill.

•

Subsection 36L(12) imposes a duty on the Tribunal to ensure that information is not communicated contrary to law enforcement interests or the requirements of security. This is dealt with in clause 156 of the ART Bill.

1171. Section 36M Act provides the Tribunal with a directions power to prohibit or restrict the publication or other disclosure of particular information. This is dealt with in clauses 70 and 157 of the ART Bill. Section 36M also provides that it is an offence to contravene such an order. This is dealt with in clause 119 of the ART Bill.

1172. Section 36N Act sets out the powers of the Tribunal in determining a review of a criminal intelligence assessment. This is dealt with in Subdivision B of Division 5 of Part 6 of the ART Bill.

1173. This item ensures provisions in the ART Bill are not duplicated or disapplied unnecessarily in other pieces of legislation. Ultimately, this policy streamlines Tribunal processes and simplifies and improves administrative practices.

Item 29: Sections 36Q (note 2)

Updating legislative references

1174. This item updates a legislative reference to the AAT Act with the equivalent provision of the ART Bill. Section 66 of the AAT Act provides for limitations on the disclosure of confidential information. This is dealt with in clause 276 of the ART Bill. This item is a technical amendment and is needed to ensure note 2 in section 36Q of the ACC Act remains accurate.

Item 30: Subsection 36R(2)

Updating legislative references

1175. This item updates a legislative reference to the AAT Act with the equivalent provisions of the ART Bill. Section 69A of the AAT Act sets out the procedure for taxing costs, where the Tribunal has made a costs order. This is dealt with in clause 115 of the ART Bill. This item is a technical amendment and is needed to ensure subsection 36R(2) of the ACC Act continues to operate in substantively the same way in relation to the Tribunal.

Item 31: Section 36S

Repealing provisions no longer required

1176. This item repeals section 36S, which deals with the procedures and processes for a proceeding for review of an adverse criminal intelligence assessment. These matters are dealt with in the ART Bill, as outlined above, and no longer need to be specified in the ACC Act.

1177. This item ensures provisions in the ART Bill are not duplicated or disapplied unnecessarily in other pieces of legislation. Ultimately, this policy streamlines Tribunal processes and simplifies and improves administrative practices.

Item 32: Schedule 1

Updating legislative references

1178. This item updates a legislative reference to the AAT Act with the equivalent provision of the ART Bill. Section 36 of the AAT Act provides the Attorney-General with the ability to issue a public interest certificate. This is dealt with in clause 91 of the ART Bill. This item is a technical amendment and is needed to ensure subsection 36R(2) of the ACC Act continues to operate in substantively the same way in relation to the Tribunal.

Item 33: Amendments of listed provisions

Terminology changes

1179. This item amends terminology. See explanation of general terminology changes above.

Australian Security Intelligence Organisation Act 1979

Item 34: Paragraph 34AD(1)(b)

Repealing and replacing provisions no longer required

1180. This item repeals paragraph 34AD(1)(b) and replaces it with a new provision.

1181. Paragraph 34AD(1)(b) provides that a person who holds an appointment to the Tribunal as President or Deputy President may be appointed by the Attorney-General as a prescribed authority for questioning warrants. This item retains the existing setting such that only the President or a Deputy President of the Tribunal can be appointed as a prescribed authority for questioning warrants.

1182. Subparagraphs 34AD(1)(b)(ii) and (iii) provide additional qualification requirements for the President or Deputy President of the AAT to be appointed as prescribed authorities. These qualification requirements no longer need to be specified because they are captured by the qualification requirements for a person to be appointed as a President or Deputy President of the ART, as set out in subclauses 205(3), 206(3) and 207(3) of the ART Bill.

Item 35: Subsection 54(2)

Repealing and replacing provisions no longer required

1183. This item replaces subsection 54(2) with a new provision.

1184. Existing subsection 54(2) provides an ability for an applicant to apply to the Tribunal for a review of the findings of the Tribunal on the basis of fresh evidence. This is dealt with in clause 140 of the ART Bill and no longer needs to be specified in the ASIO Act.

1185. New subsection 54(2) sets out that an application for review of a security assessment can be made by the person in respect of whom the assessment was made. This matter is currently dealt with in section 27AA(1) of the AAT Act.

Item 36: At the end of subsection 65(2)

Terminology changes

1186. This item inserts the phrase 'of the Tribunal' at the end of subsection 65(2), to clarify that the reference to 'the President' is a reference to the President of the ART.

Item 37: Subsection 65(3)

Updating legislative references

1187. This item updates legislative references to the AAT Act with the equivalent provisions of the ART Bill. Sections 43 and 43AAA of the AAT Act relate to the Tribunal's decision on review. These matters are dealt with in clauses 54, 105, 107, 108, 111 and 112, and Subdivision B of Division 5 of Part 6 of the ART Bill. This item is a technical amendment and is needed to ensure subsection 65(3) of the ASIO Act continues to operate in substantively the same way in relation to the Tribunal.

Item 38: Subsection 81(3)

Inserting new definition

1188. This item inserts a definition of officer of the Tribunal into subsection 81(3).

Item 39: Subsection 83B(1) (note)

Repealing provision no longer required

1189. This item repeals the note after subsection 83B(1). The note currently refers to a provision of the AAT Act, which sets out who can apply for a review under section 83B. However, in line with Item 40 below, this will be set out in the ASIO Act.

Item 40: Subsection 83B(2)

Repealing and replacing provision no longer required

1190. This item repeals subsection 83B(2) and replaces it with a new provision.

1191. Existing subsection 83B(2) provides an ability for an applicant to apply to the Tribunal for a review of the findings of the Tribunal on the basis of fresh evidence. This is dealt with in clause 142 of the ART Bill and no longer needs to be specified in the ASIO Act.

1192. New subsection 83B(2) sets out that an application for review of a security clearance decision or security clearance suitability assessment can be made by the person in respect of whom the decision or assessment was made and who has been given notice of the decision or assessment under subsection 82L(5) or 83A(1) of the ASIO Act. This matter is currently dealt with in section 27AA(1) of the AAT Act.

Item 41: Subsection 83C(1)

Updating legislative references

1193. This item updates legislative references to the AAT Act with the equivalent provision of the ART Bill. Part IV of the AAT Act sets out the notification requirements when an application is made to the Tribunal for review. This is dealt with in clause 139 of the ART Bill. This item is a technical amendment and is needed to ensure subsection 83C(1) of the ASIO Act continues to operate in substantively the same way in relation to the Tribunal.

Item 42: Subsection 83C(2) (note)

Updating legislative references

1194. This item updates a legislative reference to the AAT Act with the equivalent provision of the ART Bill. Subsection 38A(1B) of the AAT Act provides an obligation on the Director-General of Security to lodge certain documents with the Tribunal, after being notified an application for review has been made. This is dealt with in paragraph 141(2)(b) of the ART Bill. This item is a technical amendment and is needed to ensure the note in subsection 83C(2) remains accurate.

Item 43: After section 83

Who may be present when Tribunal is hearing submissions

1195. This item inserts new section 83CA.

1196. Section 83CA would apply where the Director-General of Security has provided the Tribunal a copy of a standard (or a part of a standard) certified as relating to the Commonwealth's highest level of security clearance.

1197. Through the operation of clause 5 of the ART Bill, section 83CA of the ASIO Act displaces the general right of the applicant, and their representative, to be present at a hearing as provided for in clause 149 of the ART Bill. The applicant or their representative may only be present when the Tribunal is hearing submissions made or evidence adduced in relation to any part of the copy where the copy has already been disclosed to them, or the Director-General of Security consents to their presence.

1198. This replicates the effect of subsection 39BA(9) of the AAT Act.

Item 44: At the end of subsection 83F(6)

Terminology changes

1199. This item inserts the phrase 'of the Tribunal' at the end of subsection 83F(6) to clarify that the reference to 'the President' is a reference to the President of the ART.

Item 45: Paragraph 83F(7)(b)

Updating legislative references

1200. This item updates legislative references to the AAT Act with the equivalent provisions of the ART Bill, clauses 54, 105, 107, 108, 111, 112 and 63, and Subdivision B of Division 5 of Part 6. This item is a technical amendment and is needed to ensure paragraph section 83F of the ASIO Act continues to operate in substantively the same way in relation to the Tribunal.

Item 46: Before section 93

Tribunal's power to order costs

1201. This item inserts new section 93A.

1202. Section 93A provides the Tribunal an ability to order costs reasonably incurred by the applicant in connection with an application for review of a security assessment, security clearance decision or security clearance suitability assessment, are to be paid by the Commonwealth.

1203. The Tribunal must only make such an order if the Tribunal is of the opinion that the applicant was successful, or substantially successful, in the application for review, and that it is appropriate to do so in the circumstances.

1204. This is equivalent to section 69B of the AAT Act. It has been inserted in the ASIO Act as the ART Bill does not deal with substantive costs provisions. The ART Bill includes a note, at subclause 115(1), setting out that the Tribunal's power to order a party to a proceeding to pay costs is set out in other legislation.

Item 47: Amendments of listed provisions

Terminology changes

1205. This item amends terminology. See explanation of general terminology changes above.

Foreign Acquisitions and Takeovers Act 1975

Items 48 and 49: Section 4

Replacing definitions

1206. These items repeal the definition of AAT Act, and insert a definition of ART Act. This ensures that the new Tribunal has jurisdiction to review decisions that are reviewable by the AAT and that various provisions within the Act continue to operate in the same way in relation to the Tribunal.

Item 50: Subsections 130A(3) to (5)

Repealing provisions no longer required and updating legislative references

1207. This item repeals subsections 130A(3) and (4), which deal with applications for review of a Tribunal decision on the basis of fresh evidence. This matter is dealt with in subclauses 140(2) and (3) of the ART Bill and no longer needs to be specified in the FATA.

1208. This item shifts current subsection 130A(5) to subsection 130A(3) and removes an outdated reference to a provision of the AAT Act to instead refer to the equivalent provision of the ART Bill. Subsection 27(1) of the AAT Act sets out who can make an application to the Tribunal for review of a decision. This is dealt with in subclause 17(1) of the ART Bill. This amendment ensures section 130A continues to operate in substantively the same way in relation to the Tribunal.

Item 51: Sections 130B to 130K

Repealing provisions no longer required

1209. This item repeals sections 130B to 130K. The matters set out in these sections are dealt with in the ART Bill, as explained below, and no longer need to be specified in the FATA.

1210. Section 130B sets out the requirements for making an application to the Tribunal for review of a foreign acquisitions and takeovers decision, including requirements as to the content of applications. This is dealt with in clause 34 of the ART Bill.

1211. Section 130C sets out the procedures that must occur when an application is made to the Tribunal for review of a foreign acquisitions and takeovers decision, including requirements as to the notification of receipt of an application. This is dealt with in clause 139 of the ART Bill.

1212. Section 130D imposes an obligation on the Treasurer to lodge certain information with the Tribunal. This obligation is dealt with in clause 141 of the ART Bill.

1213. Section 130E sets out that proceedings for review of reviewable decisions must be heard in the Security Division of the Tribunal. Clause 134 of the ART Bill sets out when the Tribunal must exercise its powers in the Intelligence and Security jurisdictional area.

1214. Section 130F sets out that the Tribunal may make non-publication and non-disclosure orders in proceedings for review of a foreign acquisitions and takeovers decision. This is dealt with in clause 157 of the ART Bill.

1215. Section 130G sets out the procedure for review of a foreign acquisitions and takeovers decision in the AAT. These procedures are dealt with in the ART Bill, as outlined below.

•

Subsection 130G(2) specifies the parties to the proceeding. This is dealt with in clause 147 of the ART Bill.

•

Subsection 130G(3) requires the Treasurer to provide certain information to the Tribunal. This is dealt with in clause 141 of the ART Bill.

•

Subsection 130G(4) sets out the ability of the Tribunal to require party attendance at directions hearings. This is dealt with in clause 80 of the ART Bill.

•

Subsection 130G(5) sets out that proceedings for review of foreign acquisitions and takeovers decisions must be heard in private. This is dealt with in clause 148 of the ART Bill.

•

Subsections 130G(6) and (7) set out a right of the parties to be present at hearings. This is dealt with in clause 149 of the ART Bill

•

Subsections 130G(8), (9) and (10) set out the process for and effect of the Treasurer issuing a 'security certificate'. These procedures are dealt with in clause 158 of the ART Bill.

•

Subsection 130G(11) requires the Tribunal to do all things necessary to ensure the identity of a person giving evidence is protected, where requested by the head of a national intelligence community agency. This is dealt with in clause 160 of the ART Bill.

•

Subsections 130G(12), (13), (14), (15), (16) and (17) set out the order of proceedings for review of a foreign acquisitions and takeovers decision. These processes are dealt with in clauses 151, 152 and 153 of the ART Bill.

•

Subsection 130G(18) sets out the circumstances that can give rise to dismissal of an application. This is dealt with in clauses 99 and 100 of the ART Bill.

•

Subsection 130G(19) states that a certificate issued under subsection 130G(8) is not a legislative instrument. This is dealt with in clause 158 of the ART Bill.

1216. Section 130H outlines the procedures and circumstances for the issue of a public interest certificate by the Treasurer in relation to information or contents of a document. This is dealt with in clause 161 of the ART Bill. Section 130H also imposes a duty on the Tribunal to ensure that information is not communicated contrary to the requirements of security. This is dealt with in clause 156 of the ART Bill.

1217. Sections 130J and 130K set out the powers of the Tribunal in determining a review of a foreign acquisitions and takeovers decision. This is dealt with in Subdivision B of Division 5 of Part 6 of the ART Bill.

1218. This item ensures provisions in the ART Bill are not duplicated or disapplied unnecessarily in other pieces of legislation. Ultimately, this policy streamlines Tribunal processes and simplifies and improves administrative practices.

Item 52: Subsection 130M(2)

Updating legislative references

1219. This item updates a legislative reference to the AAT Act with the equivalent provision of the ART Bill. Section 69A of the AAT Act sets out the procedure for taxing costs, where the Tribunal has made a costs order. This is dealt with in clause 115 of the ART Bill. This item is a technical amendment and is needed to ensure that subsection 130M(2) of the FATA continues to operate in substantively the same way in relation to the Tribunal.

Item 53: Section 130N

Updating legislative references

1220. This item repeals section 130N, which deals with the interaction of various provisions of the AAT Act in relation to reviews of foreign acquisitions and takeover decisions. This provision is no longer be required as the relevant procedures and processes for a proceeding for review of a foreign acquisitions and takeovers decision are covered in the ART Bill and not the FATA, as outlined above.

Item 54: Amendments of listed provisions

Terminology changes

1221. This item amends terminology. See explanation of general terminology changes above.

Freedom of Information Act 1982

Item 55: Subsection 57A(1) (note 1)

Updating legislative references

1222. This item updates a legislative reference to the AAT Act with the equivalent provision of the ART Bill. Section 27 of the AAT Act deals with who may apply to the Tribunal for review of a decision. These matters are dealt with in clause 17 of the ART Bill. This item is a technical amendment and is needed to ensure that note 1 in subsection 57A(1) of the FOI Act remains accurate.

Item 56: Subsection 57A(1) (note 2)

Repealing provision no longer required

1223. This item repeals note 2 in subsection 57A(1), and replaces it with a note on the same matter. This removes an outdated reference to a provision of the AAT Act to instead refer to the equivalent provision of the ART Bill. Subsection 29(2) of the AAT Act deals with the time within which the application for review must be made. These matters are dealt with in clauses 18 to 20 of the ART Bill. These amendments ensure that note 2 in subsection 57A(1) of the FOI Act remains accurate.

Items 57 and 58: Subsection 57A(2)

Updating legislative references

1224. This item updates legislative references to the AAT Act with the equivalent provision of the ART Bill. Paragraph 29(1)(d) and subsection 29(2) of the AAT Act deal with the prescribed time for making applications to the Tribunal. These matters are dealt with in clause 18 of the ART Bill. These items are technical amendments and are needed to ensure that subsection 57A(2) operates in substantively the same way in relation to the Tribunal. This item also makes subsequent grammatical amendments to subsection 57A(2).

Item 59: Paragraph 57A(2)(b)

Timeframe for application for review

1225. This item repeals paragraph 57A(2)(b), which provides that the period within which a person may lodge an application for review of an IC reviewable decision where the IC decides under subsection 54W(b) not to undertake, or not to continue to undertake, a review ends on the 28th day after the day on which notice of the decision was given to the person.

1226. Paragraph 57A(2)(b) provides that this period ends at the end of the period prescribed for the purposes of subclause 18(1) of the ART Bill. Subclause 18(1) of the ART Bill permits the rules to prescribe a period within which an application to the Tribunal for review of a decision must be made. This amendment would ensure the period prescribed by the rules applies to all applications for review of an IC reviewable decision under the FOI Act.

Item 60: At the end of section 57A

Applications cannot be made to the Tribunal guidance and appeals panel

1227. This item inserts subsection 57A(3) which provides that decisions made under the FOI Act are not able to referred to the Tribunal's guidance and appeals panel.

1228. Part 5 of the ART Bill provides that the guidance and appeals panel would have the power to:

•

hear and determine a matter referred to it by the President that raises an issue of significance to administrative decision-making ('guidance' function), and

•

review and determine Tribunal decisions referred to it by the President that may contain an error of fact or law materially affecting the Tribunal decision or that raise an issue of significance 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 of significance to administrative decision-making. However, section 93A of the FOI Act provides an ability for the IC to issue guidelines about the operation of the FOI Act. It is necessary to exclude the 'guidance' function of the Tribunal in relation to FOI matters to avoid conflicts with guidelines issued by the IC under the FOI Act.

1230. The 'appeals' function is also disapplied for FOI matters. As FOI matters are considered by the IC prior to review by the Tribunal, there is already a layer of external (to the original decision-maker) review on these matters. Allowing access to two further layers of review in the Tribunal is unnecessary and would delay the finalisation of matters.

Item 61: Sections 58B and 58D

Repealing provisions no longer required

1231. This item repeals sections 58B and 58D.

1232. Section 58B deals with how the Tribunal must be constituted when reviewing a decision about a document claimed to be exempt under sections 33 (Documents affecting national security, defence or international relations), 34 (Cabinet documents), and 45A (Parliamentary Budget Office documents) of the FOI Act. Section 58D sets out the procedures if there is disagreement between members in a proceeding for review of these decisions.

1233. Clause 145 of the ART Bill deals with how the Tribunal must be constituted when reviewing a decision about a document claimed to be exempt under section 33. As such, this matter does not need to be specified in the FOI Act.

1234. Clause 39 of the ART Bill deals with how the Tribunal must generally be constituted for the purposes of a proceeding. It is intended that clause 39 will apply to reviews of decisions about a document claimed to be exempt under sections 34 and 45A of the FOI Act. As such, the FOI Act will no longer set out special constitution requirements for review of these decisions. Removing this requirement provides the Tribunal with greater flexibility to manage its member resources, and to ensure that matters are constituted at an appropriate level.

1235. This item ensures provisions in the ART Bill are not duplicated or disapplied unnecessarily in other pieces of legislation. Ultimately, this policy streamlines Tribunal processes and simplifies and improves administrative practices.

Item 62: Subsection 58E(1)

Updating legislative references

1236. This item updates legislative references to the AAT Act with the equivalent provisions of the ART Bill. Sections 37 and 38AA of the AAT Act deal with the lodging of material documents with the Tribunal. These matters are dealt with in clauses 23, 25 and 26 of the ART Bill. This item is a technical amendment and is needed to ensure that subsection 58E(1) of the FOI Act continues to operate in substantively the same way in relation to the Tribunal.

Item 63: At the end of section 58E

Giving documents to other parties

1237. This item inserts a new provision at the end of subsection 58E to clarify that, if the Tribunal is satisfied that a record is an exempt record, clause 27 of the ART Bill would not apply in relation to the document. Clause 27 generally requires a decision-maker to give copies of reasons and documents to other parties if the decision-maker was required to give those documents to the Tribunal. New subsection 58E(4) ensures the appropriate, continued, protection of documents that the Tribunal is satisfied are exempt records.

Item 64: Paragraph 60(3)(d)

Updating legislative references

1238. This item updates a legislative reference to the AAT Act with the equivalent provision of the ART Bill. Subsection 30(1A) of the AAT Act deals with applications to be a party to a proceeding by persons whose interest are affected by the decision. These matters are dealt with in paragraph 22(1)(c) of the ART Bill. This item is a technical amendment and is needed to ensure that paragraph 60(3)(d) of the FOI Act continues to operate in substantively the same way in relation to the Tribunal.

Item 65: Subsection 60AA(2) (note 3)

Updating legislative references

1239. This item updates a legislative reference to the AAT Act with the equivalent provision of the ART Bill, paragraph 22(1)(c). This item is a technical amendment and is needed to ensure that note 3 in subsection 60AA(2) remains accurate.

Item 66: Subsection 61A(1)

Updating legislative references

1240. This item repeals subsection 61A(1) and replaces it with an updated set of modifications to various provisions of the ART Bill. These modifications ensure that references to the decision-maker in the listed provisions of the ART Bill are taken to mean, in relation to the review of decisions made under the FOI Act, a reference to the agency or Minister who made the IC reviewable decision. These amendments are necessary to ensure the various provisions of the ART Bill continue to appropriately apply in relation to reviews of decisions made under the FOI Act.

Item 67: Subsection 61A(2)

Updating legislative references

1241. This item updates a legislative reference to the AAT Act with the equivalent provision of the ART Bill. Paragraph 37(1)(a) of the AAT Act requires a decision-maker to lodge a statement of reasons for the decision under review. These matters are dealt with in paragraph 23(a) of the ART Bill. This item is a technical amendment and is needed to ensure that subsection 61A(2) of the FOI Act continues to operate in substantively the same way in relation to the Tribunal.

Item 67A: Subsection 61A(2)

Terminology change

1242. This item amends terminology. See explanation of general terminology changes above.

Item 68: Subsection 61A(3)

Updating legislative references

1243. This item updates legislative references to the AAT Act with the equivalent provisions of the ART Bill. Sections 38 and 38AA of the AAT Act deal with the Tribunal's power to obtain additional statements and a person's ongoing requirement to lodge material documents with the Tribunal. These matters are dealt with in clauses 24 and 25 of the ART Bill. This item is a technical amendment and is needed to ensure that subsection 61A(3) of the FOI Act continues to operate in substantively the same way in relation to the Tribunal.

Items 69 and 70: Section 62 (heading) and subsection 62(1)

Updating legislative references

1244. These items update legislative references to the AAT Act with the equivalent provisions of the ART Bill. Section 28 of the AAT Act deals with requests for a statement of reasons by persons affected by a decision. These matters are dealt with in clause 268 of the ART Bill. These items are technical amendments and are needed to ensure that section 62 of the FOI Act continues to operate in substantively the same way in relation to the Tribunal.

Item 71: Subsection 63(1)

Updating legislative refences

1245. This item updates legislative references to the AAT Act with the equivalent provisions of the ART Bill. Subsections 35(2), (3) and (4) of the AAT Act deals with the power of the Tribunal to make orders for private hearings, and the non-publication and non-disclosure of information. These matters are dealt with in subclauses 69(3), and 70(1) and (2) of the ART Bill. This item is a technical amendment and is needed to ensure subsection 63(1) of the FOI Act continues to operate in substantively the same way in relation to the Tribunal.

Item 72: Subsection 63(1)

Repealing provisions no longer required

1246. This item repeals paragraph 63(1)(b) and makes subsequent amendments to the numbering of subsection 63(1). Paragraph 63(1)(b) specifies that the Tribunal must give particular weight to a submission made by an agency or Minister in determining whether to make orders for a private hearing, or non-publication or non-disclosure of information where the proceedings relate to a record that is claimed to be an exempt document pursuant to section 33 of the FOI Act. These matters are dealt with in paragraph 157(2)(b) of the ART Bill and would no longer need to be specified in the FOI Act.

1247. This item ensures provisions in the ART Bill are not duplicated or disapplied unnecessarily in other pieces of legislation. Ultimately, this policy streamlines Tribunal processes and simplifies and improves administrative practices.

Item 73: Paragraphs 63(2)(a) and (b)

Updating legislative references

1248. This item updates references to provisions of subsection 63(1) as a result of amendments made in Item 71.

Item 74: Subsection 64(1)

Updating legislative references

1249. This item updates legislative references to the AAT Act with the equivalent provisions of the ART Bill. Sections 37 and 38AA of the AAT Act deal with the lodging of material documents with the Tribunal. These matters are dealt with in clauses 23, 25 and 26 of the ART Bill. This item is a technical amendment and is needed to ensure subsection 64(1) of the FOI Act continues to operate in substantively the same way in relation to the Tribunal.

Item 75: Subsection 64(6)

Updating legislative references

1250. This item updates a legislative reference to the AAT Act with the equivalent provision of the ART Bill. Section 46 of the AAT Act deals with the sending of documents, and disclosure of documents by, the FCA and FCFCOA. These matters are dealt with in clause 187 of the ART Bill. This item is a technical amendment and is needed to ensure subsection 64(6) of the FOI Act continues to operate in substantively the same way in relation to the Tribunal.

Item 76: Subsections 64(7) and (8)

Updating legislative references

1251. This item updates a legislative reference to the AAT Act with the equivalent provision of the ART Bill. Subparagraph 46(1)(c)(i) of the AAT Act deals with the sending of documents from the FCA to the FCFCOA if an appeal is transferred between them. These matters are dealt with in paragraph 187(2)(a) of the ART Bill. This item is a technical amendment and is needed to ensure subsections 64(7) and (8) of the FOI Act continue to operate in substantively the same way in relation to the Tribunal.

Item 77: Subsection 67(5)

Updating legislative references

1252. This item updates a legislative reference to the AAT Act with the equivalent provision of the ART Bill. Section 44A of the AAT Act deals with the operation and implementation of a decision that is subject to appeal. These matters are dealt with in clause 178 of the ART Bill. This item is a technical amendment and is needed to ensure subsection 67(5) of the FOI Act continues to operate in substantively the same way in relation to the Tribunal

Item 78: Section 89N (note 1)

Updating legislative references

1253. This item updates a legislative reference to the AAT Act with the equivalent provision of the ART Bill. Section 27 of the AAT Act sets out who can make an application to the Tribunal for review of a decision. This matter is dealt with in clause 17 of the ART Bill. This item is a technical amendment and is needed to ensure note 1 in section 89N of the FOI Act remains accurate.

Item 79: Section 89N (note 2)

Updating legislative references

1254. This item updates a legislative reference to the AAT Act with the equivalent provision of the ART Bill. Subsection 29(2) of the AAT Act deals with the prescribed time for making applications to the Tribunal. These matters are dealt with in clause 18 of the ART Bill. This item is a technical amendment and is needed to ensure note 2 in section 89N of the FOI Act remains accurate.

Item 80: Section 89N (note 3)

Updating legislative references

1255. This item updates a legislative reference to the AAT Act with the equivalent provision of the ART Bill. Section 30 of the AAT Act deals with matters related to the parties to a proceeding. These matters are dealt with in clause 22 of the ART Bill. This item is a technical amendment and is needed to ensure note 3 in section 89N of the FOI Act remains accurate.

Item 81: Amendments of listed provisions

Terminology changes

1256. This item amends terminology. See explanation of general terminology changes above.

SCHEDULE 5 - AGRICULTURE, FISHERIES AND FORESTRY

OUTLINE

1257. This Schedule contains consequential amendments covering the following Acts in the Agriculture, Fisheries and Forestry portfolio:

•

Biological Control Act 1984

•

Horse Disease Response Levy Collection Act 2011

•

Pig Industry Act 2001

•

Torres Strait Fisheries Act 1984

1258. Amendments to a particular Act may be contained in both Part 1 (Main amendments) and Part 2 (Bulk amendments) of the Schedule.

PART 1–MAIN AMENDMENTS

Pig Industry Act 2001

Items 1 and 2: Subsections 2(1), 2(2) and 2(3)

Repealing provisions that are no longer necessary

1259. These items repeal commencement provisions that are no longer necessary (relating to Schedule 1 to the Pig Industry Act 2001) and make a consequential change to reflect the repeal of the provisions.

1260. Subsections 2(2) and (3) provide for the commencement of Schedule 1 to the Pig Industry Act 2001. Both provisions are no longer necessary as a result of the repeal of Schedule 1 by the Statute Law Revision Act 2013.

1261. Item 2 repeals subsections 2(2) and (3), to remove these provisions that are no longer necessary. These provisions provided a commencement rule that was partly dependent on the commencement of parts of either the Administrative Review Tribunal Act 2000 or the Administrative Review Tribunal Act 2001 (as it would have been, had the Administrative Review Tribunal Bill 2000 commenced). This involved using the term Administrative Review Tribunal, which was also the name of the body that would have been established by the Administrative Review Tribunal Bill 2000. Therefore, repealing these unnecessary provisions also avoids confusion with the Administrative Review Tribunal established by the amendments in the ART Bill.

1262. Item 1 makes a consequential change to subsection 2(1) of the Pig Industry Act 2001 to reflect the repeal of subsections 2(2) and (3).

PART 2–BULK AMENDMENTS

Items 3, 4 and 5: Various provisions in Agriculture, Fisheries and Forestry portfolio Acts

1263. These items include tables which make bulk amendments to the following 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 items make simple terminology changes, such as repealing references to the Administrative Appeals Tribunal, the AAT and the Administrative Appeals Tribunal Act 1975, and replacing them with references to the Administrative Review Tribunal, the ART and the Administrative Review Tribunal Act 2024. These amendments ensure that the Tribunal has jurisdiction to review decisions that were reviewable by the AAT, and that the provisions under those laws continue to operate in substantively the same way for the Tribunal.

SCHEDULE 6 - ATTORNEY-GENERAL

OUTLINE

1265. This Schedule contains consequential amendments covering the following Acts in the Attorney-General portfolio:

•

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

•

Australian Transaction Reports and Analysis Centre Industry Contribution (Collection) Act 2011

•

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 Part 1 (Main amendments) and Part 2 (Bulk amendments) of this Schedule.

PART 1 - MAIN AMENDMENTS

Copyright Act 1968

Item 1: Paragraph 195B(3)(b)

Notice of ability to request statement of reasons

1267. This item updates this provision to reflect the terminology and relevant provisions in the ART Bill. This ensures that the provision operates in the same way as the current law. The provision requires the decision-maker to notify relevant persons that they may request a statement of reasons under the ART Bill.

1268. This item updates legislative references to provisions of the AAT Act, generally replacing these with references to the equivalent provisions under the ART Bill.

1269. Subsection 28(4) of the AAT Act provides that a person is not entitled to request a statement of reasons if such a statement has already been given. Under the equivalent provision in the ART Bill, the decision-maker may refuse the request if the statement of reasons has already been provided for that decision. While the provision as amended by this item does not specifically refer to this equivalent provision as this is unnecessary, a person's right to request reasons is still subject to this qualification.

Disability Discrimination Act 1992

Item 2: Paragraphs 57(1)(a) to (d)

Terminology changes – Notice of decisions to be published

1270. This item updates this provision to reflect the terminology of the ART Bill. This includes replacing the reference to setting out findings of material questions of fact, referring to the evidence on which those findings are based and giving the reasons for the making of the decision with a reference to a 'statement of reasons. The ART Bill includes a definition of a statement of reasons, which includes each of these elements in the original provision under this Act.

1271. This ensures that the provision operates in substantively the same way for the Tribunal. The provision requires a decision-maker to publish in a Gazette:

•

the making of the decision

•

a statement of reasons, and

•

a statement about a person's right to apply to the Tribunal for review of a decision.

Ombudsman Act 1976

Item 3: Subsection 3(1)

Updating definitions

1272. This item replaces the definition of 'chief executive officer' in paragraph (e) of subsection 3(1) of the Ombudsman Act, and the 'the Registrar of the Tribunal', with a reference to 'the Chief Executive Officer and Principal Registrar of the Tribunal'. It also replaces references to the AAT with the Tribunal.

Item 4: Paragraph 3(18)(b)

Terminology changes

1273. This item makes terminology changes to this provision, replacing references to the 'Registrar of the Administrative Appeals Tribunal' and 'President of the Administrative Appeals Tribunal' with references to the 'Chief Executive Officer and Principal Registrar of the Administrative Review Tribunal' and 'President of the Administrative Review Tribunal'. These amendments ensure that the Tribunal has jurisdiction to review decisions that are reviewable by the AAT, and that the provisions under those laws continue to operate in substantively the same way for the Tribunal.

Item 5: Paragraphs 10(1)(b) and (1A)(b)

Legislative update – Deemed decision and unreasonable delay in exercising power

1274. This item updates this provision to reflect the wording of clause 16 of the ART Bill, which refers to a 'quantified period', to ensure that the provision operates in substantially the same way as the current law.

1275. The provision applies where a person has a power to do an act or thing, and has not exercised that power. It provides an avenue for a potential applicant to the AAT to complain that there has been an unreasonable delay in deciding whether to do the act or thing. If the Ombudsman decides there has been unreasonable delay, they may grant a certificate to that effect. The decision is then deemed to have been made on the date when the certificate is granted, and the person can apply to the AAT (and now the ART) for review of the deemed decision.

1276. This covers situations not covered by clause 16 of the ART Bill. Clause 16 provides that, if a decision-maker does not do a thing within a quantified time period as required or permitted, the expiry of that period is deemed to be a decision to not do the thing. This clause is largely equivalent to subsection 25(5) of the AAT Act, but uses the word 'quantified' (rather than 'prescribed') to clarify its operation. The use of the word 'quantified' in both the ART Bill and Ombudsman Act removes any ambiguity that the Ombudsman Act is intended to apply in all circumstances where there is no quantified period (for example, 28 days) for the making of a decision. This includes where an Act or instrument provides a more general period (for example, 'as soon as reasonably practicable') or no period at all.

Item 6: Paragraph 16(5)(b)

1277. This item updates terminology in this provision, replacing references to 'Registrar of the Administrative Appeals Tribunal' and 'President of the Administrative Appeals Tribunal' with references to the 'Chief Executive Officer and Principal Registrar of the Administrative Review Tribunal' and the 'President of the Administrative Review Tribunal'.

Sex Discrimination Act 1984

Item 7: Paragraphs 46(1)(a) to (d)

Terminology changes – Notice of decisions to be published

1278. This item updates this provision to reflect the terminology of the ART Bill. This includes replacing the reference to setting out findings of material questions of fact, referring to the evidence on which those findings are based and giving the reasons for the making of the decision with a reference to a statement of reasons. The ART Bill includes a definition of a statement of reasons, which is similar to the description in the Sex Discrimination Act 1984 that is being replaced, except that it requires the decision-maker to explain, rather than only give, the reasons for the decision.

1279. This ensures that the provision operates in substantively the same way as the current law. The provision requires a decision-maker to publish in a Gazette:

•

a notice of the making of the decision

•

a statement of reasons, and

•

a statement about a person's right to apply to the Tribunal for review of a decision.

PART 2 - BULK AMENDMENTS

Items 8, 9, 10, 11, 12, 13, 14 and 15:Various provisions in Attorney-General portfolio Acts

1280. These items include tables which make bulk amendments to the following Attorney-General portfolio Acts:

•

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

•

Australian Transaction Reports and Analysis Centre Industry Contribution (Collection) Act 2011

•

Copyright Act 1968

•

Disability Discrimination Act 1992

•

Law Officers Act 1964

•

Modern Slavery Act 2018

•

Ombudsman Act 1976

•

Sex Discrimination Act 1984

Terminology changes

1281. The amendments make terminology changes, such as replacing references to the Administrative Appeals Tribunal, AAT or Administrative Appeals Tribunal Act 1975 with references to the Administrative Review Tribunal, ART or Administrative Review Tribunal Act 2024. These amendments ensure that the Tribunal has jurisdiction to review decisions that were reviewable by the AAT, and that the provisions under those laws continue to operate in substantively the same way for the Tribunal.

1282. Notably, item 14 updates references to the AAT in sections 10A (Ombudsman may refer questions to the AAT) and 11 (Ombudsman may recommend that the principal officer refer questions to the AAT) of the Ombudsman Act. These amendments retain the Ombudsman's powers to refer, and to recommend that a principal officer refer, questions to the Tribunal. This implements recommendation 21.5 of the Robodebt Royal Commission Report.

SCHEDULE 7 - CLIMATE CHANGE, ENERGY, THE ENVIRONMENT AND WATER

OUTLINE

1283. This Schedule contains consequential amendments covering the following Acts in the Climate Change, Energy, the Environment and Water portfolio:

•

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) Act 1989

•

Liquid Fuel Emergency Act 1984

•

National Environment Protection Measures (Implementation) Act 1998

•

Offshore Electricity Infrastructure Act 2021

•

Ozone Protection and Synthetic Greenhouse Gas Management Act 1989

•

Recycling and Waste Reduction Act 2020

•

Sea Installations Act 1987

•

Sydney Harbour Federation Trust Act 2001

•

Underwater Cultural Heritage Act 2018

•

Water Act 2007

1284. Amendments to a particular Act may be contained in both Part 1 (Main amendments) and Part 2 (Bulk amendments) of the Schedule.

PART 1 - MAIN AMENDMENTS

Hazardous Waste (Regulation of Exports and Imports) Act 1989

Item 1: Paragraph 58(1)(a) and (b)

Terminology changes and updating legislative references – Notice of review rights and ability to request statement of reasons

1285. The amendments to these provisions ensure that a decision-maker must notify relevant persons of their review rights and of their ability to request a statement of reasons under the ART Bill. This is consistent with the existing law, where the decision-maker must notify relevant persons that they may request a statement that includes reasons for the decision under section 28 of the AAT Act.

Item 2: Subsection 58(2)

Repealing provisions that are no longer necessary – Requesting a statement of reasons

1286. This item repeals subsection 58(2), which provided that the requirement to request a statement that includes reasons for a decision does not apply in a case to which subsection 28(4) of the AAT Act applies.

1287. Subsection 28(4) of the AAT Act provides that a person is not entitled to request a statement of reasons if such a statement has already been given. Under the equivalent provision in the ART Bill, the decision-maker may refuse the request if the statement of reasons has already been provided for the decision. Subsection 58(2) of the Hazardous Waste (Regulation of Exports and Imports) Act 1989 is no longer necessary to achieve this intended outcome.

Recycling and Waste Reduction Act 2020

Item 3: Subsection 154(3)

Terminology changes and updating legislative references – Persons who may apply to the Tribunal

1288. This item updates this provision to reflect the terminology and provisions of the ART Bill. This ensures that section 154 operates in substantively the same way as the existing law.

1289. Subsection 154(3) of the Recycling and Waste Reduction Act 2020 (as amended by this Schedule) disapplies the standard provisions outlining who can apply to the Tribunal for review under the ART Bill. Subsection 154(2) continues to provide that instead, an application may only be made by a person affected by the reviewable decision, or someone acting on behalf of such a person.

1290. The legislative reference to subsection 27(1) of the AAT Act in the provision is replaced with reference to the equivalent provision under the ART Bill.

1291. Consistent with subsection 27(1) of the AAT Act, under the equivalent provision in the ART Bill, a person whose interests are affected by a decision (or a person acting on their behalf) may apply to the Tribunal for review of the decision.

Sea Installations Act 1987

Item 4: Paragraphs 76(1)(a) and (b)

Terminology changes and updating legislative references – Notice of review rights and ability to request statement of reasons

1292. This item updates this provision to reflect terminology and provisions in the ART Bill. This ensures that the provision operates in substantively the same way as the current law. The provision requires the decision-maker to notify relevant persons of their review rights. and that they may request a statement of reasons under the ART Bill.

1293. The legislative reference to section 28 of the AAT Act is replaced with a reference to the equivalent provision under the ART Bill. Consistent with section 28 of the AAT Act, under the equivalent provision in the ART Bill, a person whose interests are affected by a decision may make a written request to the decision-maker to give the person a statement of reasons for the decision.

1294. Subsection 28(4) of the AAT Act provides that a person is not entitled to request a statement of reasons if such a statement has already been given. Under the equivalent provision in the ART Bill, the decision-maker may refuse the request if the statement of reasons has already been provided for the decision. Although the provision amended by this item does not specifically refer to this equivalent provision as this is unnecessary, a person's right to request reasons is still subject to this qualification.

1295. This item replaces the reference to a 'statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision', with a reference to a 'statement of reasons'. The ART Bill includes a definition of a statement of reasons, which includes each of these elements in the original provision.

PART 2 - BULK AMENDMENTS

Items 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20: Various provisions in Climate Change, Energy, the Environment and Water portfolio Acts

1296. These items include tables which make bulk amendments to the following Climate Change, Energy, the Environment and Water portfolio 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) Act 1989

•

Liquid Fuel Emergency Act 1984

•

National Environment Protection Measures (Implementation) Act 1998

•

Offshore Electricity Infrastructure Act 2021

•

Ozone Protection and Synthetic Greenhouse Gas Management Act 1989

•

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 replacing references to the Administrative Appeals Tribunal, AAT or Administrative Appeals Tribunal Act 1975 with references to the Administrative Review Tribunal, ART or Administrative Review Tribunal Act 2024. These amendments ensure that the Tribunal has jurisdiction to review decisions that are reviewable by the AAT, and that the provisions under those laws continue to operate in substantively the same way for the Tribunal.

SCHEDULE 8 - DEFENCE

OUTLINE

1298. This Schedule contains consequential amendments covering the following Acts in the Defence portfolio:

•

Defence Force (Home Loans Assistance) Act 1990

•

Defence Force Retirement and Death Benefits Act 1973

•

Defence Home Ownership Assistance Scheme Act 2008

•

Defence Reserve Service (Protection) Act 2001

•

Defence Trade Controls Act 2012

Items 1, 2, 3, 4 and 5: Various provisions in Defence portfolio Acts

1299. These items include tables which make bulk amendments to the Defence portfolio Acts listed above.

Terminology changes

1300. The amendments make terminology changes, such as replacing references to the Administrative Appeals Tribunal and Administrative Appeals Tribunal Act 1975 with references to the Administrative Review Tribunal or Administrative Review Tribunal Act 2024. These amendments ensure that the Tribunal has jurisdiction to review decisions that are reviewable by the AAT, and that the provisions under those laws continue to operate in substantively the same way for the Tribunal.

SCHEDULE 9 - EMPLOYMENT AND WORKPLACE RELATIONS

OUTLINE

1301. This Schedule contains consequential amendments covering the following Acts in the Employment and Workplace Relations portfolio:

•

Coal Mining Industry (Long Service Leave) Administration Act 1992

•

Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992

•

Student Identifiers Act 2014

1302. Amendments to a particular Act may be contained in both Part 1 (Main amendments) and Part 2 (Bulk amendments) of the Schedule.

PART 1 - MAIN AMENDMENTS

Coal Mining Industry (Long Service Leave) Administration Act 1992

Item 1: Paragraph 39BC(4)(b)

Terminology changes – Notice of review rights

1303. This item updates the provision to reflect terminology in the ART Bill. This ensures that the provision operates in substantively the same way as the existing law. The provision requires the decision-maker to notify relevant persons of their review rights for a decision.

Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992

Item 2: Paragraphs 8(5)(a) and (b)

Notice of review rights and ability to request statement of reasons

1304. This item updates the provisions to reflect terminology in the ART Bill and remove specific legislative references to provisions of the AAT Act. The provisions operate in substantively the same way as the existing law. The provisions require the decision-maker to notify relevant persons of their review rights for a decision and that they may request a statement of reasons under the ART Bill.

1305. This item replaces the reference to a 'statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision', with a reference to a 'statement of reasons'. The ART Bill includes a definition of a statement of reasons, which includes each of these elements in the original provision.

1306. Although this item does not update the provision to refer to the equivalent provision to section 28 of the AAT Act, the standard approach to requesting reasons set out in the ART Bill, which replace section 28, still apply. That is, a person is entitled to request a statement of reasons under the ART Bill. However, similar to the effect of subsection 28(4) of the AAT Act, under the ART Bill, a decision-maker may refuse the request if the statement of reasons have already been provided for the decision.

Item 3: Subsection 8(7)

Terminology changes

1307. This item makes terminology changes to replace references to the Administrative Appeals Tribunal Act 1975 and the Administrative Appeals Tribunal with references to the Administrative Review Tribunal Act 2024 and the Administrative Review Tribunal. This ensures the ART has jurisdiction to review decisions that are currently reviewable by the AAT.

Student Identifiers Act 2014

Item 4: Subsection 13(2)

Updating legislative references

1308. This item updates legislative references to subsection 27(1) of the AAT Act to instead refer to the broadly equivalent provision in the ART Bill. Consistent with subsection 27(1) of the AAT Act, the equivalent provision in the ART Bill provides that a person whose interests are affected by a decision may apply to the Tribunal for review of the decision where an Act or legislative instrument allows.

1309. Subsection 13(2) of the Student Identifiers Act 2014 clarifies who can apply for a review of a decision to the AAT for a decision made under subsection 13(1) of that Act. Updating the legislative references within section 13 preserves the original operation of the provision to ensure that it operates in the same way as the existing law for the Tribunal.

PART 2 - BULK AMENDMENTS

Items 5, 6 and 7: Various provisions in Employment and Workplace Relations portfolio Acts

1310. These items include tables which make bulk amendments to the following Employment and Workplace Relations portfolio Acts:

•

Coal Mining Industry (Long Service Leave) Administration Act 1992

•

Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992

•

Student Identifiers Act 2014

Terminology changes

1311. The amendments make terminology changes replacing references to the Administrative Appeals Tribunal and Administrative Appeals Tribunal Act 1975 with references to the Administrative Review Tribunal and Administrative Review Tribunal Act 2024. These amendments ensure that the Tribunal has jurisdiction to review decisions that were reviewable by the AAT, and that the provisions under those laws continue to operate in substantively the same way for the Tribunal.

SCHEDULE 10 - FINANCE

OUTLINE

1312. This Schedule contains consequential amendments covering the following 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 Finance portfolio Acts

1313. These items include tables which make bulk amendments to the Finance portfolio Acts listed above.

Terminology changes

1314. The amendments make terminology changes, such as replacing references to the Administrative Appeals Tribunal, AAT or Administrative Appeals Tribunal Act 1975 with references to the Administrative Review Tribunal, ART or Administrative Review Tribunal Act 2024. These amendments ensure that the Tribunal has jurisdiction to review decisions that are reviewable by the AAT, and that the provisions under those laws continue to operate in substantively the same way for the Tribunal.

SCHEDULE 11 - FOREIGN AFFAIRS AND TRADE

OUTLINE

1315. This Schedule contains consequential amendments covering the following 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 Part 1 (Main amendments) and Part 2 (Bulk amendments) of the Schedule.

PART 1 - MAIN AMENDMENTS

Chemical Weapons (Prohibition) Act 1994

Item 1: Subsection 26(3)

Terminology changes - Notice of review rights

1317. This item updates the provision to reflect the terminology of the ART Bill. This ensures that the provision operates in substantively the same way as the existing law. The provision requires the decision-maker to notify relevant persons of their review rights for a decision.

1318. This item makes terminology changes to replace references to the Administrative Appeals Tribunal Act 1975 and the Administrative Appeals Tribunal with references to the Administrative Review Tribunal Act 2024 and the Administrative Review Tribunal. This item is a technical amendment and is needed to ensure these provisions continue to operate in substantively the same way in the Tribunal.

Export Market Development Grants Act 1997

Item 2: Subsection 98(4) (note)

Terminology changes and updating legislative references

1319. This item updates the note to subsection 98(4) to reflect the terminology and provisions of the ART Bill. This item replaces the legislative reference to section 27A of the AAT Act in the note with a reference to the equivalent provision in the ART Bill.

1320. Consistent with section 27A of the AAT Act, clause 266 of the ART Bill requires a decision-maker to notify persons who are affected by the decision of the making of the decision, and their right to have the decision reviewed.

1321. Currently, section 27B of the AAT Act allows the Attorney-General to make a legislative instrument determining a Code of Practice for Notification of Reviewable Decisions and Rights of Review. While this item does not update the note to refer to the equivalent provision to section 27B of the AAT Act, under the standard provisions in the ART Bill, it would still be a requirement for a decision-maker to have regard to any prescribed rules when giving such notices. It is anticipated that any prescribed rules relating to the giving of notices under the ART Bill would be based on the Code of Practice for Notification of Reviewable Decisions and Rights of Review made under subsection 27B(1) of the AAT Act.

Registration of Deaths Abroad Act 1984

Item 3: Subsection 27(2)

Terminology changes - Notice of review rights

1322. This item makes terminology changes to replace references to the Administrative Appeals Tribunal Act 1975 and the Administrative Appeals Tribunal with references to the Administrative Review Tribunal Act 2024 and the Administrative Review Tribunal. This item is a technical amendment and is needed to ensure that subsection 27(2) of the Registration of Deaths Abroad Act 1984 continues to operate in substantively the same way in the Tribunal.

PART 2 - BULK AMENDMENTS

Items 4, 5 and 6: Various provisions in Foreign Affairs and Trade portfolio Acts

1323. These items include tables which make bulk amendments to the following 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 to the Administrative Appeals Tribunal and Administrative Appeals Tribunal Act 1975 with references to the Administrative Review Tribunal and Administrative Review Tribunal Act 2024. These amendments ensure that the Tribunal has jurisdiction to review decisions that are reviewable by the AAT, and that the provisions under those laws continue to operate in substantively the same way for the Tribunal.

SCHEDULE 12 - HEALTH AND AGED CARE

OUTLINE

1325. This Schedule contains consequential amendments covering the following Acts in the Health and Aged Care portfolio:

•

Aged Care Act 1997

•

Aged Care (Transitional Provisions) Act 1997

•

Australian Radiation Protection and Nuclear Safety Act 1998

•

Dental Benefits Act 2008

•

Healthcare Identifiers Act 2010

•

Hearing Services Administration Act 1997

•

Major Sporting Events (Indicia and Images) Protection Act 2014

•

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 Part 1 (Main amendments) and Part 2 (Bulk amendments) of the Schedule.

PART 1 - MAIN AMENDMENTS

Aged Care Act 1997

Items 1 and 2: Subsections 85-4(6)(note) and 85-5(7)(note)

Terminology changes and updating legislative references

1327. These items update notes to subsections 85-4(6) and 85-5(7) to reflect terminology and provisions with respect to the ART Bill. The legislative reference to section 27A of the AAT Act in the note would be replaced by a reference to the equivalent provision under the ART Bill.

1328. Consistent with section 27A of the AAT Act, clause 266 of the ART Bill requires a decision-maker to notify persons who are affected by the decision of the making of the decision, and their right to have the decision reviewed.

1329. Section 27B of the AAT Act allows the Attorney-General to make a legislative instrument determining a Code of Practice for Notification of Reviewable Decisions and Rights of Review. While this item does not update the note to refer to the equivalent provision to section 27B of the AAT Act, under the standard provisions in the ART Bill, it would still be a requirement for a decision-maker to have regard to any prescribed rules when giving such notices. It is anticipated that any prescribed rules relating to the giving of notices under the ART Bill would be based on the Code of Practice for Notification of Reviewable Decisions and Rights of Review made under subsection 27B(1) of the AAT Act.

Aged Care (Transitional Provisions) Act 1997

Items 3 and 4: Subsections 85-4(6)(note) and 85-5(7)(note)

Terminology changes and updating legislative references

1330. These items update notes to reflect new terminology and provisions with respect to the ART Bill.

1331. The proposed changes to these notes are analogous to the changes proposed to notes in the Aged Care Act 1997. See explanation above.

Australian Radiation Protection and Nuclear Safety Act 1998

Items 5, 6 and 7: Subsections 40(3)(note), 42(3)(note) and 80C(3)(note)

Terminology changes and updating legislative references

1332. These items update notes to reflect new terminology and provisions with respect to the ART Bill.

1333. The proposed changes to these notes are analogous to the changes proposed to notes in the Aged Care Act 1997. See explanation above.

Dental Benefits Act 2008

Items 8 and 9: Subsections 56D(9) and 56G(5)

Updating legislative references

1334. These items update legislative references to paragraph 29(1)(d) of the AAT Act to instead refer to the broadly equivalent provision in the ART Bill. Section 29 of the AAT Act sets out the rules for when applications must be lodged with the AAT. In contrast, the general rules for when applications must be lodged under the ART Bill would be prescribed by rules.

1335. Currently, subsections 56D(9) and 56G(5) of the Dental Benefits Act 2008 clarify when the 28 day time period for making an application to the AAT begins with respect to a decision. These changes to legislative references ensure that the Tribunal has jurisdiction to review decisions that were reviewable by the AAT, and that the provisions under those laws continue to operate in substantively the same way for the Tribunal.

Hearing Services Administration Act 1997

Items 10 and 11: Subparagraphs 30(1)(b)(i) and (ii) and paragraphs 34(1)(a) and (b)

Notice of review rights and ability to request statement of reasons

1336. The amendments to these provisions ensure that a decision-maker must notify relevant persons of their review rights and of their ability to request a statement of reasons under the ART Bill. This is consistent with the existing law, where the decision-maker must notify relevant persons that they may request a statement that includes reasons for the decision under section 28 of the AAT Act.

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 legislative references

1337. These items update notes to reflect terminology and provisions with respect to the ART Bill.

1338. The proposed changes to these notes are analogous to the changes proposed to notes in the Aged Care Act 1997. See explanation above.

Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010

Items 24, 25, 26, 27, 28, 29, 30 and 31: Subsections 11(7)(note), 15(6)(note), 18(4)(note), 28(4)(note), 40(4)(note), section 57(note), subsections 60(5)(note) and subsection 76(4)(note)

Terminology changes and updating legislative references

1339. These items update notes to reflect terminology and provisions with respect to the ART Bill.

1340. The proposed changes to these notes are analogous to the changes proposed to notes in the Aged Care Act 1997. See explanation above.

National Health Security Act 2007

Item 32: Subsections 83(1)

Terminology changes

1341. This item makes terminology changes to replace references to the Administrative Appeals Tribunal Act 1975 and the Administrative Appeals Tribunal with references to the Administrative Review Tribunal Act 2024 and the Administrative Review Tribunal This ensures that the Tribunal has jurisdiction to review decisions that are reviewable by the AAT.

Private Health Insurance Act 2007

Item 33: Section 230-1

Terminology changes

1342. This item makes terminology changes to replace references to the Administrative Appeals Tribunal Act 1975 and the Administrative Appeals Tribunal with references to the Administrative Review Tribunal Act 2024 and the Administrative Review Tribunal in the guidance provision. This ensures the guidance correctly refers to the Tribunal instead of the AAT.

Tobacco Advertising Prohibition Act 1992

Item 34: Section 30

Terminology changes

1343. This item makes terminology changes analogous to those proposed for the National Health Security Act 2007. See explanation above.

PART 1 - BULK AMENDMENTS

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 items include tables which make bulk amendments to the following Health and Aged Care portfolio Acts:

•

Aged Care Act 1997

•

Aged Care (Transitional Provisions) Act 1997

•

Australian Radiation Protection and Nuclear Safety Act 1998

•

Dental Benefits Act 2008

•

Healthcare Identifiers Act 2010

•

Hearing Services Administration Act 1997

•

Major Sporting Events (Indicia and Images) Protection Act 2014

•

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

Terminology changes

1345. The amendments make terminology changes, replacing references to the Administrative Appeals Tribunal and Administrative Appeals Tribunal Act 1975 with references to the Administrative Review Tribunal and Administrative Review Tribunal Act 2024. These amendments ensure that the Tribunal has jurisdiction to review decisions that were reviewable by the AAT, and that the provisions under those laws continue to operate in substantively the same way for the Tribunal.

SCHEDULE 13 - INDUSTRY, SCIENCE AND RESOURCES

OUTLINE

1346. This Schedule contains consequential amendments covering the following Acts in the Industry, Science and Resources portfolio:

•

Offshore Petroleum and Greenhouse Gas Storage Act 2006

•

Space (Launches and Returns) Act 2018

•

Tradex Scheme Act 1999

1347. Amendments to a particular Act may be contained in both Part 1 (Main amendments) and Part 2 (Bulk amendments) of this Schedule.

PART 1 - MAIN AMENDMENTS

Offshore Petroleum and Greenhouse Gas Storage Act 2006

Items 1 and 2: Sections 747(note) and 747A(note)

Terminology changes and updating legislative references

1348. These items update notes to reflect new terminology and provisions with respect to the ART Bill. They amend the legislative reference to section 27A of the AAT Act in the note by replacing it with a reference to the equivalent provision under the ART Bill.

1349. Consistent with section 27A of the AAT Act, clause 266 of the ART Bill requires a decision-maker to notify persons who are affected by the decision of the making of the decision, and their right to have the decision reviewed.

Tradex Scheme Act 1999

Item 3: Section 40

Terminology changes and updating legislative references

1350. This item updates terminology and replaces references to AAT Act provisions in the note to section 40, with references to the equivalent provisions in the ART Bill.

1351. Consistent with section 27A of the AAT Act, clause 266 of the ART Bill requires a decision-maker to notify persons who are affected by the decision of the making of the decision, and their right to have the decision reviewed.

PART 2 - BULK AMENDMENTS

Items 4, 5 and 6: Various provisions in Industry, Science and Resources portfolio Acts

1352. These items include tables which make bulk amendments to the following Industry, Science and Resources portfolio Acts:

•

Offshore Petroleum and Greenhouse Gas Storage Act 2006

•

Space (Launches and Returns) Act 2018

•

Tradex Scheme Act 1999

Terminology changes

1353. The amendments make terminology changes, such as replacing references to the Administrative Appeals Tribunal and the Administrative Appeals Tribunal Act 1975 with references to the Administrative Review Tribunal and the Administrative Review Tribunal Act 2024. These amendments ensure that the Tribunal has jurisdiction to review decisions that were reviewable by the AAT, and that the provisions under those laws continue to operate in substantively the same way for the Tribunal.

Item 7: Amendments of listed provisions in the Tradex Scheme Act 1999

Terminology changes and updating a legislative reference

1354. The amendments make alterations to a note in the Tradex Scheme Act 1999, to update a reference to section 27B of the AAT Act, replacing this with a reference to the equivalent provision in the ART Bill. Section 27B of the AAT Act allows the Attorney-General to make a legislative instrument determining a Code of Practice for Notification of Reviewable Decisions and Rights of Review. This item updates the note to state that when giving such notice, the decision-maker is required to have regard to the matters prescribed by the rules (if such rules have been prescribed under the ART Bill). It is anticipated that any prescribed rules relating to the giving of notices under the ART Bill would be based on the Code of Practice for Notification of Reviewable Decisions and Rights of Review made under subsection 27B(1) of the AAT Act.

SCHEDULE 14 - INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT, COMMUNICATIONS AND THE ARTS

OUTLINE

1355. This Schedule contains consequential amendments covering the following Acts in the Infrastructure, Transport, Regional Development, Communications and the Arts portfolio:

•

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 Law Act 2012

•

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 Pollution Damage) Act 2008

•

Protection of the Sea (Prevention of Pollution from Ships) Act 1983

•

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 Part 1 (Main amendments) and Part 2 (Bulk amendments) of this Schedule.

PART 1 - MAIN AMENDMENTS

Adelaide Airport Curfew Act 2000

Items 1 and 2: Subsections 9(7)(note) and 11(7)(note)

Terminology changes and updating legislative references

1357. These items update notes to reflect the terminology and provisions of the ART Bill. These items replace the legislative reference to section 27A of the AAT Act in the note, with a reference to the equivalent provision under the ART Bill.

1358. Consistent with section 27A of the AAT Act, clause 266 of the ART Bill requires a decision-maker to notify persons who are affected by the decision of the making of the decision, and their right to have the decision reviewed.

Marine Safety (Domestic Commercial Vessel) National Law Act 2012

Item 3: Subsection 16(3)

Terminology changes

1359. This item updates the provision to reflect the terminology of the ART Bill and to reflect modern drafting practices. The amendments replace references to the Administrative Appeals Tribunal Act 1975 to refer instead to the Administrative Review Tribunal Act 2024. This amendment ensures that the provision continues to operate in substantively the same way for the Tribunal.

PART 2 - BULK AMENDMENTS

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 items include tables which 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 Law Act 2012

•

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 Pollution Damage) Act 2008

•

Protection of the Sea (Prevention of Pollution from Ships) Act 1983

•

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 replacing references to the Administrative Appeals Tribunal, the AAT or the Administrative Appeals Tribunal Act 1975 with references to the Administrative Review Tribunal, the ART or the Administrative Review Tribunal Act 2024. These amendments ensure that the Tribunal has jurisdiction to review decisions that were reviewable by the AAT, and that the provisions under those laws continue to operate in substantively the same way for the Tribunal.

Item 24: Amendments of listed provisions in the Adelaide Airport Curfew Act 2000

Terminology changes and updating legislative references

1362. The amendments also update legislative notes to remove references to section 27B of the AAT Act and the Code of Practice for Notification of Reviewable Decisions and Rights of Review determined under that section.

1363. Section 27B of the AAT Act allows the Attorney-General to make a legislative instrument determining a Code of Practice for Notification of Reviewable Decisions and Rights of Review. The amendments update the notes to state that when giving such notice, the decision-maker is required to have regard to the matters prescribed by the rules (if such rules have been prescribed under the ART Bill). It is anticipated that any prescribed rules relating to the giving of notices under the ART Bill would be based on the Code of Practice for Notification of Reviewable Decisions and Rights of Review made under subsection 27B(1) of the AAT Act.

Item 25: Amendments of listed provisions in the Air Navigation Act 1920

Terminology changes and removing legislative references

1364. The amendments make changes to paragraph 23A(2)(a) of the Air Navigation Act 1920, to remove the reference section 28 of the AAT Act and replace this with a reference to a statement of reasons under the ART Bill. The ART Bill includes a definition of a statement of reasons, and under the standard provisions of the ART Bill, a person may request a statement of reasons, consistent with the framework under section 28 of the AAT Act.

SCHEDULE 15 - VETERANS' AFFAIRS

OUTLINE

1365. Schedule 15 of the Consequential Bill contains amendments to a number of Acts in the Veterans' Affairs portfolio.

1366. The amendments retain special provisions that are fundamental to the operation of Tribunal review for veterans matters, including provisions that disapply – or apply instead of – provisions of the ART Bill. These provisions ensure the workability of this framework, recognising the physical and mental health circumstances of the veteran cohort and the unique nature of military service.

1367. The Schedule recognises that merits review in two separate bodies is a unique feature of veterans' entitlement law and the establishment of the Tribunal does not alter access arrangements to the VRB. Additional arrangements are made to ensure that the new guidance and appeals panel would not create unnecessary caseload for the Tribunal, or delays for claimants in resolving matters which have already been considered by the VRB.

1368. The Schedule also makes a range of minor amendments, replacing outdated references to the AAT and the AAT Act with updated terminology, replacing references to provisions of the AAT Act with references to the equivalent provision under the ART Bill and repealing redundant provisions as required. These amendments ensure the Tribunal has jurisdiction to review decisions that are reviewable by the AAT (including second-tier review of matters arising from decisions of the VRB), and that various provisions will continue to operate in the same way as the current law for the Tribunal. In some cases, provisions are amended to cover both the AAT and the Tribunal to ensure these provisions operate as intended or to manage transitional issues.

1369. This Schedule contains consequential amendments covering the following Acts in the Veterans' Affairs portfolio:

•

Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006

•

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 Legislation Amendment (One-off Payments and Other 2007 Budget Measures) Act 2007

•

Treatment Benefits (Special Access) Act 2019

•

Veterans' Entitlements Act 1986

•

Veterans' Entitlements (Clarke Review) Act 2004

1370. Amendments to a particular Act may be contained in both Part 1(Main amendments) and Part 2 (Bulk amendments) of the Schedule.

PART 1 - MAIN AMENDMENTS

General terminology changes

1371. A range of items in this Schedule make simple terminology changes, such as repealing outdated references to the 'Administrative Appeals Tribunal', 'the AAT' and the 'Administrative Appeals Tribunal Act 1975', and replacing them with references to the 'Administrative Review Tribunal', 'the ART' and the 'Administrative Review Tribunal Act 2024'. These amendments ensure that the Tribunal has jurisdiction to review decisions that were reviewable by the AAT, and that the provisions under those laws continue to operate in substantively the same way in the Tribunal.

Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006

1372. See also item 40 for bulk amendments to this Act.

Item 1: Section 27 (Note)

Terminology changes and updating legislative references - Notice of review rights

1373. This item updates the note to reflect new terminology and provisions with respect to the ART Bill.

1374. The legislative reference to section 27A of the AAT Act in the note is replaced with a reference to the equivalent provision under the ART Bill.

1375. Consistent with section 27A of the AAT Act, clause 266 of the ART Bill requires a decision-maker to notify persons who are affected by the decision of the making of the decision and their right to have the decision reviewed.

Compensation (Japanese Internment) Act 2001

Items 2 and 3: Section 3 (definition of Review Tribunal )

Terminology changes

1376. These items repeal the term 'Review Tribunal' and insert updated terminology for a consistent reference to the Tribunal with other Commonwealth statutes.

Item 4: Subsection 7(2)

Terminology changes

1377. This item is consequential to the amendment made by item 2, and would effectively confer jurisdiction upon the Tribunal for review of a decision made under this Act.

Military Rehabilitation and Compensation Act 2004

1378. See also Item 42 for bulk amendments to the MRCA.

Item 5: Subsection 354(1A)

Meaning of decision-maker for MRCA context

1379. This item repeals and substitutes subsection 354(1A) to reflect updated terminology and to clarify the meaning of the term 'decision-maker' where it is used in the ART Bill.

1380. 'Decision-maker' is a new term set out in clause 14 of the ART Bill, and is defined as the person who makes a decision. However, not all decision-makers under the MRCA are involved in a Tribunal review. In particular, as the VRB does not participate in Tribunal proceedings consequential amendments are required to ensure references to 'the decision-maker' in the ART Bill are references to the original decision-maker, rather than the VRB.

1381. New subsection (1AA) clarifies that the Repatriation Commission, instead of the VRB, is to be regarded as the decision-maker for a Tribunal review of a reviewable decision made by the VRB, for the purposes of references to parties to Tribunal proceedings. This subsection is consistent with the existing modification of the AAT Act at item 5 in section 355 (updated by item 9 to refer to the ART Act).

1382. Existing subsection (1A) is updated to refer to the equivalent provision in the ART Bill, that the Repatriation Commission or the CDF (as the original decision-maker) instead of the VRB must provide reasons and documents to the Tribunal.

1383. Subsection (1A) alters other occurrences of 'decision-maker' to ensure that the Tribunal's notification requirements upon an application being made, remittal of matters, and the operation of a Tribunal's review decision, as set out under the ART Bill, apply to the Repatriation Commission or CDF, as the appropriate original decision-maker.

1384. Notes are inserted at the end of each subsection to clarify that the listed provisions of the ART Bill would apply to other reviewable decisions.

Item 6: Subsection 354(1B)

Terminology changes and updating legislative references

1385. This item updates the AAT Act reference to the equivalent provision in the ART Bill such that the Tribunal is to remit a determination that meets the specified circumstances to the MRCC to be reconsidered at the primary decision-making level, instead of remitting the matter to the VRB.

1386. The intent of the subsection is unchanged, and would apply where the VRB has affirmed an original determination of the MRCC. Additional relevant documentary evidence provided to the Tribunal by the applicant could not be presented to the VRB without unreasonable expense or inconvenience, and the Tribunal considers a more favourable determination would otherwise have been made.

Item 7: Subsection 354(1C)

Tribunal remittal

1387. This item repeals and replaces the subsection to reflect updated terminology and to reference the equivalent provisions of the ART Bill on Tribunal remittal, including a matter referred to in subsection 354(1B). The referenced provisions of paragraphs (a) and (e) reflect the structure of clause 85 of the ART Bill, which differs slightly from section 42D of the AAT Act. The intent of the subsection is otherwise unchanged.

1388. Paragraph (a) disapplies the ART Bill provisions regarding the decision-maker's actions, timeframes for reconsideration and the Tribunal's power to extend the time period.

1389. Existing paragraphs (b) and (c) are retained, which set out that the MRCC must reconsider the remitted decision within 28 days, otherwise the decision is taken to have been affirmed.

1390. Paragraph (d) clarifies that the Tribunal proceeding resumes upon the MRCC making a reconsideration decision, or if the decision is taken to be affirmed in accordance with paragraph (c).

1391. Existing paragraph (e) is replicated to clarify that the ART Bill applies following a reconsideration decision, with the proceedings to resume. An applicant has the option to withdraw their application, or proceed, where the review applies to the decision as affirmed, varied or substituted by the decision-maker.

Item 8: Section 355 (Table heading)

Terminology changes

1392. This item is a terminology update to refer to the ART Act. See explanation of General terminology changes above.

Items 9, 10, 11, 12 and 13: Section 355

Updating legislative references

1393. These items amend the table in section 355, and provide modifications subject to which the ART Bill has effect. Clause 5 of the ART Bill allows other legislation to change how some of the provisions of the ART Act would apply. These amendments generally replicate the current modifications of AAT processes and procedures.

1394. Item 1 provides contrary to clause 57 of the ART Bill in allowing for Tribunal sittings outside Australia, for the purposes of a review under Part 5 of this Act.

1395. Item 2 provides contrary to clause 17 of the ART Bill in substituting the claimant, the MRCC and CDF as applicants who may apply to the Tribunal for a review under Part 5 of this Act. Subclause 123(2) of the ART Bill is added to item 2 to allow the same modifications for an application to the guidance and appeals panel.

1396. Item 3 provides contrary to subclause 18(1) of the ART Bill, in specifying the time limit of three months for VRB determinations, and 60 days for other MRCA reviewable determinations, for lodgement of an application for Tribunal review. The generous application period is a long-standing arrangement in recognition of the complex nature of issues relating to determinations of liability and compensation.

1397. Item 4 provides contrary to subclauses 19(1) and (2) of the ART Bill in placing a limit of 12 months on the Tribunal's discretion to extend the application period.

1398. Item 5 provides contrary to subclause 22(1) of the ART Bill in providing for the MRCC, rather than the VRB, to be a party to a review proceeding on a Board determination. This item further stipulates that a claimant is a party for reviews initiated by CDF or the MRCC.

Item 14: Section 355A

Applications cannot be made to the Tribunal guidance and appeals panel

1399. This item inserts a new section to disapply clause 123 of the ART Bill. This would mean that applications cannot be made to appeal a Tribunal review decision on a determination by the VRB.

1400. The guidance and appeals panel is a new feature of the Tribunal, serving as an internal appeal mechanism, and providing the opportunity to identify and address systemic issues in administrative decision-making. Applicants would not have an automatic right of internal appeal to the guidance and appeals panel.

1401. This provision would preclude applications for referral to the guidance and appeals panel for determinations under the MRCA which have been reviewed by the VRB. As an initial layer of external review has already occurred for these decisions, this arrangement would prevent duplication, and allow a timely and cost-efficient review pathway for veteran matters.

1402. It would remain open to the Tribunal President to refer applications for review of VRB matters raising issues of systemic review to the guidance function on first review. This balanced approach would assist to influence the quality of decision-making without unnecessarily drawing out reviews for veterans and their dependants. If Tribunal review does not provide a satisfactory response, the claimant may pursue judicial review in the courts on points of law.

Item 15: Subsection 357(7)

Terminology changes

1403. This item is a terminology update and reflects the organisational structure of the Tribunal. The provision provides that in the absence of an agreement between the parties, the Tribunal may order the costs be taxed by the Principal Registrar, or an authorised person.

1404. This change aligns with paragraph 281(1)(d) of the ART Bill which provides for an authorised person to undertake this function. The taxing of costs involves the Tribunal undertaking an assessment of the amount of costs payable by one party to another.

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988

1405. See also item 43 for bulk amendments to the DRCA.

Item 16: Subsection 64(3)

Updating legislative references

1406. This item updates the AAT Act reference to the equivalent provision in the ART Bill. The intent of the subsection is unchanged, and the provision reinforces subsection (1), that only the claimant and the Commonwealth may apply to the Tribunal for a review of a reviewable decision.

Items 17 to 18: Subsection 65(3); Subsection 65(4)

Application of the ART Bill

1407. These items amend the table in section 355, which provide contrary to the application of some provisions of the AAT Act, with updated references in the ART Bill. Clause 5 of the ART Bill allows other legislation to change how some of the provisions of the ART Bill would apply. These amendments generally replicate the current modifications of AAT processes and procedures.

1408. Item 17 provides contrary to clause 57 of the ART Bill, in allowing for sitting locations of the Tribunal to include places outside Australia.

1409. Item 18 provides contrary to subclause 18(1) of the ART Bill in specifying the time limit of 60 days for lodgement of an application for Tribunal review of reviewable determinations under the DRCA. The generous application period is a long-standing arrangement in recognition of the complex nature of issues relating to determinations of liability and compensation.

Items 19 to 20: Subsection 67(13); Subsection 67(14)

Terminology changes and updating legislative references

1410. Section 67 of DRCA sets out the circumstances under which the Tribunal may require the Commonwealth to pay a claimant the costs they incurred for the proceedings. The taxing of costs referred to in subsection (13) involves the Tribunal undertaking an assessment of the amount of costs payable by one party to another.

1411. Item 19 is a terminology update and reflects the organisational 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 Principal Registrar, or an authorised person. This change aligns with paragraph 281(1)(d) of the ART Bill which provides for an authorised person to undertake this function.

1412. Item 20 updates the AAT Act reference to the equivalent provision in the ART Bill to clarify that the Commonwealth is a party to Tribunal proceedings for the purposes of this section.

Treatment Benefits (Special Access) Act 2019

1413. See also item 45 for bulk amendments to this Act.

Terminology changes and updating legislative references

Item 21: Section 36 (note)

1414. This item updates the note to this provision to reflect new terminology and provisions with respect to the ART Bill.

1415. The legislative reference to section 27A of the AAT Act in the note is replaced with a reference to the equivalent provision under the ART Bill.

1416. Consistent with section 27A of the AAT Act, clause 266 of the ART Bill requires a decision-maker to notify persons who are affected by the decision of the making of the decision and their right to have the decision reviewed.

Veterans' Entitlements Act 1986

1417. See also item 46 for bulk amendments to the VEA.

Item 22: Section 35J (note)

Terminology changes and updating legislative references

1418. This item updates the AAT Act reference in the note at the end of Section 35J to the equivalent provisions of the ART Bill that an ART decision is taken to be the decision of the decision-maker. The note would clarify that a decision by the Tribunal that the veteran has rendered qualifying service is exhaustive for the purpose of the VEA.

Item 23: At the end of section 115B

Timing of applications for review to the Administrative Review Tribunal

1419. This item inserts new subsection (12) to disapply subclauses 18 and 19 of the ART Bill in relation to timeframes for a review application relating to a decision under the Veterans' Vocational Rehabilitation Scheme (VVRS).

1420. The VVRS determination made by the Repatriation Commission under section 115B confers jurisdiction on the Tribunal for review of VVRS decisions and modifies the application time period. The legislative instrument modifies the AAT Act to provide an application time limit of three months and places a limit of 12 months on the Tribunal's discretion to extend the application period.

1421. Clause 5 of the ART Bill allows other legislation to change how some of the provisions of the ART Bill apply. However, unlike the AAT Act, a contrary intention to displace the ART Bill can only be prescribed by a legislative instrument if the parent Act authorises it to do so.

1422. Subclause 5(2) of the ART Bill gives permission for delegated legislation to amend or displace the operation of the ART Bill, providing the Act under which the instrument is made, authorises that ability. In accordance with this requirement, new subsection (12) specifies that the VVRS can contain provisions that provide contrary to the operation of the timeframe rules and extension thereof, for an application to the Tribunal for reviews of a reviewable VVRS decision.

Item 24: Subsection 155A(2)

Updating legislative references

1423. This item updates the AAT Act reference to the equivalent provision in the ART Bill on giving reasons for decisions. The intent of the subsection is unchanged.

1424. The provision would clarify that a notice of the specified VRB decisions must inform the person about their right of review to the Tribunal. The person's right to request reasons from the decision-maker under the ART Bill is subject to the exception where reasons for the reviewable decision have already been given to the applicant.

Items 25, 26 and 27: Subsection 175(2E), 175(4), and 175(5)

Applications for review

1425. Section 175 sets out the decisions in respect of which an application may be made to the Tribunal for review. These items update the AAT Act references to the equivalent provisions of the ART Bill.

1426. The intent of each of the subsections is unchanged. These items clarify that a review application to the Tribunal is subject to clause 34 of the ART Bill, which sets out how a person is to apply for a review

1427. The note at the end of subsection (2E) is also updated to reflect the updated reference to the ART Bill. This note is a signpost on the purpose of clause 34 of the ART Bill.

Item 28: Subsection 176(1)

Meaning of decision-maker for VEA context

1428. This item repeals and substitutes subsection 176(1) to reflect updated terminology and to clarify the meaning of the term 'decision-maker' where it is used in the ART Bill.

1429. 'Decision-maker' is a new term set out in clause 14 of the ART Bill, and is defined as the person who makes a decision. However, as the VRB does not participate in Tribunal proceedings, consequential amendments are required to ensure references to 'the decision-maker' in the ART Bill are references to the original decision-maker, the Repatriation Commission, rather than the VRB.

1430. Subsection (1) clarifies that the Repatriation Commission instead of the VRB, is to be regarded as the decision-maker for a Tribunal review of a reviewable decision made by the VRB, for the purposes of references to parties to Tribunal proceedings. This is consistent with the existing modification of the AAT Act at subsection (6) (updated by item 32 to refer to the ART Bill).

1431. Other occurrences of 'decision-maker' in the ART Bill are also clarified to ensure that provision of reasons and documents to the Tribunal, the Tribunal's notification requirements upon an application being made, remittal of matters, and the operation of a Tribunal's review decision, as set out under the ART Bill, apply to the Repatriation Commission, as the appropriate original decision-maker.

Items 29, 30, 31, 32, 33, 34 and 35: Subsection 176(2); Subsection 176(3); Subsection 176(4); Subsection 176(5) and (6); Subsection 176(7); Subsection 176(8); Subsection 176(9)

Application of the ART Bill

1432. These items make further amendments to section 176 which provide contrary to some provisions of the AAT Act for VEA matters, with updated terminology and references to the ART Bill. Clause 5 of the ART Bill allows other legislation to change how some of the provisions of the ART Bill apply. These amendments generally replicate the current modifications of AAT processes and procedures.

1433. See also item 46 for bulk amendments to this section.

1434. Item 29 provides contrary to clause 17 of the ART Bill such that the Repatriation Commission is a party with interests and may apply to the Tribunal for a review of a VRB decision in the specified circumstances.

1435. Item 30 disapplies clause 268 of the ART Bill such that person affected by the specified reviewable decisions may not request reasons from the decision-maker, where the relevant notification provisions of the VEA have been met and a copy of the decision and relevant statements have been given to the person. This provision is consistent with the exception set out in subclause 268(7) of the ART Bill.

1436. Item 31 repeals and substitutes subsection (4) to provide for application lodgement timeframes and extensions of time. This item provides contrary to clause 18 of the ART Bill in specifying the time limit of three months for lodgement of an application for Tribunal review of reviewable determinations under the VEA. The subsection is based on existing paragraph (4)(a). The generous application period is a long-standing arrangement in recognition of the complex nature of issues relating to determinations of liability and compensation.

1437. New subsection (4A) is based on existing paragraph (4)(b), which provides contrary to clause 19 of ART Bill in retaining a limit of 12 months on the Tribunal's discretion to extend the application period.

Parties to a proceeding before the Tribunal

1438. Item 32 redrafts subsections (5) and (6) to enhance readability, and the AAT Act reference is updated to reflect the intent to provide contrary to subclause 22(1) of the ART Bill.

1439. New subsection 176(5) would clarify that parties to a Tribunal review proceeding are the applicant and the Commission, or where the Commission is the applicant, the veteran or a dependant of the deceased veteran.

Tribunal decision on review of reviewable decision

1440. Items 33 to 35 provide contrary to clause 105 of the ART Bill in replicating the existing arrangements on the types of decisions the Tribunal can make following review of a determination under the VEA.

1441. Where the Tribunal sets aside certain reviewable decisions of the Repatriation Commission or the Board, the effect is to reset the claimant's entitlement to how it existed before the reviewable decisions were made. That is, the outcome of the Tribunal's decision to set aside the reviewable decision would be:

•

not to cancel or suspend, or reduce the rate of, a pension or attendant allowance

•

not to increase the rate of a pension or attendant allowance, or

•

a person does not cease to be entitled to a seniors' health card.

1442. The amendments to subsections (7), (8) and (9) clarify that in these instances, the Tribunal is not required to make a substitute decision. In accordance with clause 105 of the ART Bill, the Tribunal may set aside the reviewable decision and remit the matter to the decision-maker. The intent is to facilitate efficient resolution of these matters.

Item 36: At the end of section 176

Applications cannot be made to the Tribunal guidance and appeals panel

1443. This item inserts a new section to disapply clause 123 of the ART Bill. This would mean that applications cannot be made to refer to appeal a Tribunal review decision on a determination by the VRB.

1444. The guidance and appeals panel is a new feature of the Tribunal, serving as an internal appeal mechanism, and providing the opportunity to identify and address systemic issues in administrative decision-making. Applicants would not have an automatic right of internal appeal to the guidance and appeals panel.

1445. This provision precludes applications for referral to the guidance and appeals panel determinations under the VEA which have been reviewed by the VRB. As an initial layer of external review has already occurred for these decisions, this arrangement prevents duplication, and allows a timely and cost-efficient review pathway for veteran matters.

1446. It remains open to the Tribunal President to refer VRB matters raising issues of systemic review to the guidance function on first review. This balanced approach assists to influence the quality of decision-making without unnecessarily drawing out reviews for veterans and their dependants. If Tribunal review does not provide a satisfactory response, the claimant may pursue judicial review in the courts on points of law.

Item 37: Subsection 177 (1)

Updating legislative references and terminology changes

1447. This item provides contrary to clause 107 of the ART Bill in replicating the existing arrangements on the operative dates of the specified Tribunal review decisions.

1448. Section 177 sets out the conditions for backdating certain benefits, or deeming a cancellation as suspension. The approach aligns with the backdating provisions applicable to an original decision under the VEA for maximum benefit, and prevents the Tribunal from setting a date that a decision-maker could not have made under this Act. This amendment would ensure the principle of equitable outcomes apply to a Tribunal review decision.

Item 38: Section 216

Technical amendment

1449. This item is a technical amendment consequential to a new subsection being inserted by item 39 below.

Item 39: At the end of section 216

Regulations may be modified

1450. This item inserts new subsection (2) to meet the requirements of subclause 5(2) of the ART Bill.

1451. Clause 5 of the ART Bill allows other legislation to change how some of the provisions of the ART Bill will apply. However, unlike the AAT Act, a contrary intention to displace the ART Bill can only be prescribed by a legislative instrument if the parent Act authorises it to do so.

1452. The following regulations made under the VEA confer jurisdiction on the Tribunal and alter the application time period:

•

Veterans' Entitlements (Special Assistance – Motorcycle Purchase) Regulations 2001

•

Veterans' Entitlements (Special Assistance) Regulations 1999

•

Veterans' Entitlements (Rehabilitation Allowance) Regulations

1453. Subclause 5(2) of the ART Bill gives permission for delegated legislation to amend or displace the operation of the ART Bill, providing the Act under which the instrument is made, authorises that ability.

1454. In accordance with this requirement, new subsection (2) specifies that regulations made under this Act can contain provisions contrary to the operation of the timeframe rules, for an application to the Tribunal for reviews of a reviewable decision under the regulation.

PART 2 - BULK AMENDMENTS

Items 40, 41, 42, 43, 44, 45, 46 and 47: Various provisions of Veterans' Affairs portfolio Act

1455. These items include tables which make bulk amendments to the following Veterans' Affairs portfolio Acts:

•

Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006

•

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 Legislation Amendment (One off Payments and Other 2007 Budget Measures) Act 2007

•

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 to the Administrative Appeals Tribunal and Administrative Appeals Tribunal Act 1975 with references to the Administrative Review Tribunal and Administrative Review Tribunal Act 2024. These amendments ensure that the Tribunal has jurisdiction to review decisions that were reviewable by the AAT, and that the provisions under those laws continue to operate in substantively the same way for the Tribunal.

SCHEDULE 16 - TRANSITIONAL PROVISIONS

OUTLINE

1457. This Schedule contains provisions relating to the transition from the AAT to the Tribunal. The provisions ensure that the Tribunal is equipped to begin operations from its establishment. The provisions provide clarity about what will happen after the transition time to rights and requirements that existed under the old law, and proceedings in progress immediately before the transition time. The provisions also provide transitional arrangements for certain members of the AAT.

1458. This Schedule includes provisions to:

•

facilitate the establishment of the Tribunal, including by clarifying the annual reporting requirements, transferring staff from the AAT to the Tribunal, transferring records from the AAT to the Tribunal, transitioning registries of the AAT to the Tribunal, and dealing with related matters

•

preserve requirements that existed immediately before the transition time for decision-makers to give notices of decisions, notices of appeal and review rights, and reasons for decisions

•

ensure that, if a person had a right to apply to the AAT immediately before the transition time, the person may make the application to the Tribunal after the transition time

•

transfer proceedings underway in the AAT immediately before the transition time to the Tribunal, in a manner that minimises disruption to the parties

•

preserve rights that existed under the old law for persons to make applications to courts, and ensure that court proceedings in progress immediately before the transition time can continue

•

automatically transfer some members of the AAT to the Tribunal – namely, the President, Deputy Presidents who are judges, and other members appointed to the AAT through a publicly-advertised, merit-based appointment process from 1 January 2023 onwards

•

provide for arrangements relating to remuneration and leave entitlements for certain members of the AAT who are appointed to the Tribunal

•

provide for compensation for certain members of the AAT who are not appointed to the Tribunal, and

•

enable the Minister to make rules relating to transitional arrangements.

PART 1 - PRELIMINARY

Item 1: Definitions

1459. Item 1 defines a number of terms for the purpose of Schedule 16.

1460. AAT means the Administrative Appeals Tribunal.

1461. ART means the Administrative Review Tribunal.

1462. Reporting period has the same meaning as in the PGPA Act.

1463. Rules means the rules made under item 51.

1464. This Schedule refers to things happening before, at or after the transition time. The transition time means the time the new Act commences. The Tribunal will come into operation at this time.

1465. This Schedule refers to things being done under the old law or the new law. The old law means the law of the Commonwealth as in force time to time before the transition time. The new law means the law of the Commonwealth as in force from time to time after the transition time.

1466. This Schedule refers to things being done under the old Act and the new Act. The old Act means the Administrative Appeals Tribunal Act 1975 as in force immediately before the transition time. The new Act means the Administrative Review Tribunal Act 2024.

Item 2: Applications of Parts 3 to 6

1467. This item provides that Parts 3 to 6 of this Schedule have effect subject to provisions in Part 8 of this Schedule. Part 8 sets out separate transitional arrangements for matters specific to particular Acts.

PART 2 - ESTABLISHMENT OF THE ART

1468. Part 2 includes provisions to facilitate the establishment of the Tribunal.

Item 3: President's report for period ended before transition time

1469. This item provides for the transition of the annual reporting obligations under section 24R of the AAT Act. It applies where an annual report for a financial year that has ended has not been prepared when the transition time occurs.

1470. Despite the transition, this item requires the President of the Tribunal to prepare an annual report in accordance with the AAT Act 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 for that financial year.

1471. The Minister must cause a copy of the report to be tabled in each House of the Parliament as soon as practicable.

Item 4: Registrar's report for period ended before transition time

1472. This item provides for the transition of annual reporting obligations under section 46 of the PGPA Act. It applies where an annual report for a reporting period that has ended has not been prepared when the transition time occurs.

1473. This item requires the Principal Registrar to prepare an annual report in accordance with section 46 of the PGPA Act if:

•

the transition time occurs after the end of a financial year, and

•

the Registrar of the AAT had not prepared the annual report for that financial year.

Item 5: President's report for period in which transition time occurs

1474. This item provides for the transition of the annual reporting obligations under section 24R of the AAT Act from the President of the AAT to the President of the Tribunal, in circumstances where the transition time occurs during a financial year.

1475. The effect of this item is that if the transition time occurs part way through a financial year, the President of the Tribunal's first annual report under section 242 of the new Act must also cover the matters which would have been covered by an annual report under section 24R of the AAT Act for the part of the financial year before the transition time.

Item 6: Registrar's report for period in which transition time occurs

1476. This item provides for the transition of annual reporting obligations under section 46 of the PGPA Act from the Registrar of the AAT to the Principal Registrar of the Tribunal, in circumstances where the transition time occurs during a financial year.

1477. The effect of this item is that if the transition time occurs part way through a financial year, the first annual report by the Tribunal's Principal Registrar must also cover the matters which would have been covered by an annual report under section 46 of the PGPA Act for the AAT for the part of the financial year before the transition time.

Item 7: Records

1478. This item provides that any records or documents that were in the possession of the AAT immediately before the transition time are to be transferred to the Tribunal after the transition time.

Item 8: Return of documents by courts

1479. This item provides that if, immediately before the transition time, a court was in possession or control of a document, and at a time after the transition time the court would have had to return the document to the AAT if the AAT Act 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 under subsection 46(1) of the AAT Act before the transition time, this item would ensure that the document can be returned to the Tribunal after the transition time.

Item 9: Return of documents by AAT

1481. This item provides that if, immediately before the transition time, the AAT was in possession or control of a document, and at a time after the transition time the AAT would have had to return the document to a person or a body if the AAT Act had not been repealed, the Tribunal must return the document.

1482. For example, if a person had given a document to the AAT and the AAT would have been required to return the document to the person under subsection 36(2) of the AAT Act before the transition time, this item ensures that the Tribunal must return the document after the transition time.

Item 10: Pending proceedings

1483. This item provides that if, immediately before the transition time, the AAT is a party to proceedings in any court or tribunal, the Tribunal is substituted as the relevant party to those proceedings.

Item 11: Staff

1484. This item provides for the transition of AAT staff. The effect of this item is that any staff engaged by the AAT under section 24N of the AAT Act immediately before the transition time are taken to be staff of the Tribunal under section 238 of the new Act after the transition time, on the same terms and conditions. This item ensures that the repeal of the AAT Act does not affect a person's continuity of employment.

Item 12: Registries

1485. This item provides for the transition of AAT registries. The effect of this item is that, after the transition time, any registry of the AAT that had been established under section 64 of the AAT Act and was in existence immediately before the transition time continues to exist as if it had been established by the Minister under section 243 of the new Act.

Item 13: References in instruments

1486. This item is intended to ensure that, after the transition time, instruments with outdated terminology can be interpreted consistently with the new Act. This item is intended to cover a broad range of instruments, including legislative and non-legislative instruments, as well as commercial instruments.

1487. Subitems 13(1) and (2) provide that if an instrument was in force immediately before the transition time, the relevant instrument would have effect after the transition time with the following substitutions, as if:

•

a reference to the AAT Act were a reference to the new Act

•

a reference to a provision of the AAT Act were a reference to an equivalent, or nearly equivalent, provision of the new Act, and

•

a reference to the AAT were a reference to the Tribunal.

1488. Subitem 13(3) clarifies that the rules may provide that the substitutions do not apply in relation to a specified instrument, or a particular reference in a specified instrument.

1489. Subitem 13(4) provides that, to avoid doubt, this item does not prevent the relevant instrument from being amended or repealed after the transition time.

PART 3 - NOTICE, REVIEW RIGHTS AND REASONS

1490. This Part provides for the transition of requirements for a person to provide a notice of decision, notice of appeal and review rights, or reasons for a decision. It also provides for the transition of rights to request reasons for a decision.

Item 14: Notice of decisions

1491. This item ensures that a requirement to give a notice of decision that had not been met before the transition time continues to apply after the transition time. This item applies in relation to decisions by decision-makers, and does not cover decisions of the AAT.

1492. This item applies if a decision was made under the old law, the old law required a notice of the decision to be given to a person, and the notice was not given before the transition time. The effect of this item is that, after the transition time, the notice must still be given. The timeframe for giving the notice under the old law continues to apply. However, the notice must otherwise be given as if the decision had been made under the new law – that is, the notice must be given in accordance with the relevant requirements for giving a notice of decision under the new law.

1493. For example, if, before the transition time, a person has not met a requirement under section 27A of the AAT Act to give a notice of decision, the effect of this item is that the person will still be required to give the notice after the transition time. The same timeframe for giving the notice will apply. However, the notice must otherwise be given in accordance with the relevant requirements of the new Act.

1494. This has the consequence that all notices of decision given after the transition time, including notices in relation to decisions made before the transition time, must be given in accordance with the new law. This will ensure there is consistency in notices of decision that are given after the transition time.

1495. The only aspect of the old law that continues to apply for these notices is the timeframe for giving the notice. Preserving the old timeframes is intended to reduce administrative complexity, as decision-makers will not need to recalculate timeframes after the transition time.

Item 15: Notice of review rights

1496. This item ensures that a requirement to give a notice of review or appeal rights that had not been met before the transition time continues to apply after the transition time. This item applies in relation to decisions by decision-makers, and does not cover decisions of the AAT.

1497. This item applies if a decision was made under the old law, the old law required a notice of review or appeal rights in relation to the decision to be given to a person, and the notice was not given before the transition time. The effect of this item is that, after the transition time, the notice must still be given. The timeframe for giving the notice under the old law continues to apply. However, the notice must otherwise be given as if the decision had been made under the new law – that is, the notice must be given in accordance with the relevant requirements for giving a notice of decision under the new law.

1498. For example, if, before the transition time, a person has not met a requirement under section 27A of the AAT Act to give a person a notice of the person's right to have a decision reviewed, the effect of this item is that the person will still be required to give the notice after the transition time. The same timeframe for giving the notice will apply. However, the notice must otherwise be given in accordance with the relevant requirements of the new law.

1499. This has the consequence that all notices of review or appeal rights given after the transition time, including notices in relation to decisions made before the transition time, must be given in accordance with the new law. This will ensure there is consistency in notices that are given after the transition time.

1500. The only aspect of the old law that continues to apply for these notices is the timeframe for giving the notice. Preserving the old timeframes is intended to reduce administrative complexity, as decision-makers will not need to recalculate timeframes after the transition time.

Item 16: Reasons for decisions - mandatory

1501. This item ensures that a requirement to give reasons for a decision that had not been met before the transition time continues to apply after the transition time. This item applies in relation to decisions by decision-makers, and does not cover decisions of the AAT.

1502. This item applies if a decision was made under the old law, the old law required reasons for the decision to be given to a person, 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 the reasons under the old law continues to apply. The reasons must otherwise be given as if the decision had been made under the new law – that is, the reasons must be given in accordance with the relevant requirements under the new law for giving reasons.

Item 17: Reasons for decisions - on request

1503. This item ensures that a person's entitlement to request reasons for a decision continues to be available after the transition time. This item applies in relation to decisions by decision-makers, and does not cover decisions of the AAT.

1504. This item applies if a decision was made under the old law, and the old law enabled a person to request reasons for the decision, but the person had not made the request before the transition time. The effect of this provision is that, after the transition time, the person may make the request, so long as the time limit for making the request under the old law has not expired. If a person makes a request, the request must be made as if the decision had been made under the new law – that is, the request must be made in accordance with the relevant requirements for requesting reasons under the new law.

1505. For example, if, immediately before the transition time, a person was entitled under subsection 28(1) of the AAT Act to request a statement of reasons from a decision-maker in relation to a decision made under the old law, the person may make the request after the transition time. If the timeframe for giving the statement of reasons was governed by paragraph 28(1A)(a) of the AAT Act – which provides that a request for a statement of reasons must be made within 28 days after the person received the decision in writing – the person must make the request within that timeframe.

Item 18: Reasons requested but not received

1506. This item ensures that a requirement under the old law to give written reasons for a decision, arising from a request made before the transition time, continues to apply after the transition time.

1507. This item applies if, under the old law, a decision was made, a person requested reasons for the decision, and the reasons had not been 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 the reasons under the old law continues to apply. Otherwise, the reasons must be given as if the request had been made under the new law – that is, the relevant requirements under the new law relating to giving reasons for decision on request will apply.

1508. For example, if, before the transition time, a person made a request under subsection 28(1) of the AAT Act for a statement of reasons in relation to a decision, but the reasons were not given before the transition time, the reasons must be given after the transition time. In accordance with subsection 28(1) of the AAT Act, the reasons must be given as soon as practicable, but in any case, within 28 days of the request. Otherwise, the statement of reasons must be given in accordance with the relevant requirements under the ART Bill for the giving of statements of reasons on request.

PART 4 - RIGHTS TO APPLY

1509. This Part provides for the transition of matters relating to applications to the AAT, including notices that refer to a person's right to apply to the AAT for review of a decision, and the making of applications.

Item 19: Notice of right to apply

1510. This item preserves the effectiveness of notices made before the transition time that refer to a person's right to apply for review of a decision to the AAT.

1511. This item applies if:

•

a notice was made under the old law before the transition time, and the notice is given to a person

•

the notice states that the person can apply for review of a decision to the AAT

•

the period for making the application ends after the transition time (or there is no period for making the application), and

•

the person has not made the application.

1512. The effect of this item is that the notice is taken to include a statement to the effect that the person is entitled to apply for review of the decision to the Tribunal, and is taken to have been made under, and given in accordance with, the new law.

1513. This item's reference to a notice being 'made' is intended to capture a notice being prepared by the decision-maker, before being given to the recipient. This item ensures that a notice made under the old law before the transition time that refers to the AAT can be read, after the transition time, as referring to the Tribunal. This means that, if a person made a notice referring to the AAT before the transition time, the notice remains effective and the person does not need to remake or reissue the notice with updated references after the transition time.

Item 20: Applications to AAT

Making an application

1514. This item ensures that, if a person was entitled to make an application to the AAT immediately before the transition time, the person can make the application to the Tribunal after the transition time.

1515. This item is intended to cover all types of applications that a person could make to the AAT under the old law. This includes applications for the review of a decision. In this way, this item ensures that the abolition of the AAT does not result in a person losing their entitlement to seek Tribunal review. This item is also intended to cover other types of applications that could have made to the AAT – for example, applications for extensions of time and applications that could be made in the course of proceedings.

1516. This item applies if, immediately before the transition time, a person was entitled to make an application to the AAT. A person may make the application to the Tribunal after the transition time, if the time limit for making the application under the old law has not expired. The application must otherwise be made in accordance with the new law. This ensures that, following the transition time, all applications to the Tribunal are made in a consistent manner.

Dealing with an application

1517. Subitems 20(3), (4), (5) and (6) set out the manner in which the Tribunal must deal with the application. The starting point is that the Tribunal must, as far as possible, deal with the application under the new law. However, this is subject to a requirement that the Tribunal must deal with the application in a manner that it considers is fair and efficient. In doing so, the Tribunal must have regard to the impact of the transition – that is, the repeal of the AAT Act, the enactment of the new Act, and the effect (including the operation) of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 – in relation to the application.

1518. Subitems 20(3), (4), (5) and (6) clarify that the Tribunal will have flexibility in how it deals with applications of this kind. The Tribunal can depart from the new law in circumstances where it considers it fair and efficient to do so.

Example

1519. Before the transition time, Person A prepares an application for the AAT to review a decision using forms current at that time. Person A lodges the application with the Tribunal after the transition time. If the forms on which Person A made the application are outdated after the transition time, the application may not be in accordance with the new law. Subitem 20(3) has the effect that the Tribunal could nonetheless decide to accept the application, if it considers that this would be efficient and fair (for example, because it would be burdensome and time-consuming to require Person A to rewrite and resubmit the application using a new form, and the Tribunal considers it could deal effectively with the application in its existing form).

Item 21: No duplicate applications

1520. This item prevents a person from making a duplicate application for review of a decision.

1521. The effect of this item is that, if a person made an application to the AAT for review of a decision (the initial decision), and the AAT made a decision on the application or dismissed the application, the person cannot apply to the Tribunal for review of the initial decision.

1522. The effect of this item is also that, if a person made an application to the AAT for review of an initial decision before the transition time, and immediately before the transition time the AAT had not made a decision on the application, the person cannot apply to the Tribunal for review of the initial decision after the transition time. This is because, under item 24, the application to the AAT will be automatically transferred to the Tribunal at the transition time. The person will not be able to make a duplicate application to the Tribunal.

1523. The purpose of this item is to ensure that this Schedule does not introduce additional rights to seek review that would not otherwise be available.

Item 22: AAT decisions made before transition time

1524. This item deals with various transitional matters relating to decisions of the AAT made before the transition time.

Requests for written reasons

1525. Subitems 22(1) and (2) preserve a person's entitlement to apply for written reasons for a decision made by the AAT. If, immediately before the transition time, the person was entitled to make a request for written reasons for a decision made by the AAT, the person may make the application to the Tribunal after the transition time. The relevant provisions of the old law continue to apply in relation to the request. This means that the person must make the request, and the Tribunal must deal with the request, in accordance with the old law.

1526. These subitems are necessary because, under the ART Bill, the Tribunal will be required to give written reasons for decisions. Accordingly, there will be no provision enabling a person to request written reasons. These subitems fill this gap by ensuring the old law continues to apply so that a person may request written reasons for a decision made by the AAT before the transition time.

Notice of decision and statement of reasons

1527. To avoid doubt, subitem 22(3) clarifies that section 111 of the new Act does not apply in relation to a decision made by the AAT. Section 111 requires the Tribunal to give a person a notice of decision and statement of reasons in relation to a decision by the Tribunal. That provision will not operate to impose a new, additional requirement for the Tribunal to give reasons for decisions made by the AAT before the transition time.

Guidance and appeals panel

1528. Subitem 22(4) provides that, to avoid doubt, Part 5 of the new Act, which deals with the guidance and appeals panel, does not apply in relation to a decision made by the Tribunal. This has the effect that decisions made by the AAT before the transition time cannot be referred to the guidance and appeals panel.

Item 23: Applications to courts

1529. This item ensures that a party does not lose their right to appeal or make an application to a court in relation to a decision in a proceeding of the AAT. This item is intended to cover any appeal rights conferred under legislation, as well as rights to make applications for judicial review, in relation to a decision made in a proceeding of the AAT.

1530. This item has the effect that if, immediately before the transition time, a party to a proceeding before the AAT was entitled to appeal or make an application to a court in relation to a decision in the proceeding, the party may make the appeal or application after the transition time. The time limit for making the application under the old law continues to apply. However, the application 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 in accordance with the new law. Subitem 23(3) provides that, for the purposes of the appeal, anything the court could have done in relation to the AAT before the transition time may be done in relation to the Tribunal.

PART 5 - PROCEEDINGS IN PROGRESS

1532. This Part deals with transitional arrangements for proceedings in progress in the AAT or a court immediately before the transition time.

Item 24: AAT proceedings

1533. This item ensures that proceedings of the AAT that have not been finalised before the transition time are automatically transferred to the Tribunal.

Continuing proceedings in the ART

1534. Subitems 24(1) and (2) provide that if a proceeding in the AAT is not finalised (however described) before the transition time, the proceeding must be continued and finalised by the Tribunal. For the purpose of continuing and finalising the proceeding, the Tribunal will have access to all records and documents in relation to the proceeding that were transferred from the AAT to the Tribunal in accordance with item 7.

1535. Subitems 24(2), (3), (4) and (5) set out the manner in which the Tribunal must continue and finalise the proceeding. The starting point is that the Tribunal must, as far as possible, continue the proceeding under the new law. This ensures that the Tribunal is not required to apply different versions of the law depending on whether a proceeding was transferred from the AAT to the Tribunal, or commenced in the Tribunal after the transition time.

1536. This item is subject to a requirement that the Tribunal must continue and finalise the proceeding in a manner that the Tribunal considers is fair and efficient. In doing so, the Tribunal must have regard to the impact of the transition – that is, the repeal of the old Act, the enactment of the new Act, and the effect (including the operation) of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 – on the parties to the proceeding.

1537. This item ensures that the Tribunal will have flexibility in its approach to continuing and finalising transferred proceedings. The Tribunal can ensure that the transition takes place as efficiently and fairly as possible, and that it can manage transferred proceedings in a way that that minimises potential disruption or disadvantage to the parties.

Effect of things done before the transition time

1538. Subitem 24(6), (7) and (8) deal with the effect of things done before the transition time.

1539. Subitem 24(6) provides that anything done in, or in relation to, the proceeding before the transition time continues to have effect for the purposes of, or in relation to, the proceeding (as the case requires) after the transition time. This is intended to ensure that the Tribunal, in continuing and finalising a proceeding, can have regard to the fact of things having occurred in the proceeding before the transition time. For example, it would enable the Tribunal, in considering whether to dismiss an application because an applicant failed to attend a hearing, to take into account the applicant's failure to attend a hearing in the proceeding before the transition time.

1540. Subitem 24(7) deals with the legal effect of things that happened in the proceeding before the transition time. It provides that anything done in, or in relation to, the proceeding before the transition time that was valid under, or done in accordance with, the old law is taken to be valid under, or to have been done in accordance with, the new law for the purposes of the proceeding after the transition time. The intention is that things that were validly done in the proceeding before the transition time continue to be legally effective, as if they had been done under or in accordance with the new law, and do not need to be done again.

1541. Subitem 24(7) applies to things done by the AAT and by parties. For example:

•

if the AAT validly made a direction under the old law (such as directing a matter to dispute resolution), the direction continues to have effect, and the Tribunal does not need to make a new direction for the same purpose

•

if a person met a requirement under the old law (for example, a requirement to lodge documents with the AAT), the person is taken to have met that requirement for the purposes of the new law, and will not be required to meet the equivalent requirement again after the transition time.

1542. Subitem 24(8) provides that anything done in, or in relation to, 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 item deals with proceedings in a court that are not finalised before the transition time and that relate to a decision made, or other thing done, by the AAT. After the transition time, the proceeding will continue in accordance with the new law. This item makes it clear that, in continuing the proceedings, anything the court could have done in relation to the AAT before the transition time may be done in relation to the Tribunal. For example, if the court could have made an order remitting a case to be heard and decided again by the AAT (under subsection 44(4) of the AAT Act), the court may make an order remitting the case to the Tribunal after the transition time.

PART 6 - OTHER THINGS DONE BY, OR IN RELATION TO, THE AAT

Item 26: General rule

1544. This item provides that the new law applies in relation to a thing done by, or in relation to, the AAT as if the thing had been done by, or in relation to, the Tribunal. This is subject to other items of this Schedule.

1545. This means, for example, the Tribunal can exercise powers under the new Act in relation to things that had been done by the AAT, or proceedings that had been finalised by the AAT, before the transition time. For instance, this item would have the effect that the Tribunal could correct an obvious error in a decision or written reasons issued by the AAT.

1546. Provisions in other legislation that refer to things being done by the Tribunal will also be capable of applying to things that had been done by the AAT before the transition time. For instance, the item will ensure that section 123 of the A New Tax System (Family Assistance) (Administration) Act 1999, which refers to the Tribunal having reviewed a decision, will also apply in relation to a review by the AAT.

Item 27: Protection of information and documents

1547. This item preserves the operation of requirements under the old law in relation to the disclosure, publication or other protection of information or documents given to the AAT before the transition time.

1548. This item applies if information or a document was given to the AAT, and the AAT gave a direction, made an order or did any other things to prohibit disclosure or publication of the information or document, or if the old law otherwise provided for the protection of the information or document (including by prohibiting disclosure or publication). The effect of this item is that the old law continues to apply in relation to the disclosure, publication or other protection of the information or document. This includes offences under the old law.

1549. For example, section 81 of the ASIO Act provides that it is an offence for a person who is or has been a member or officer of the AAT to make a record of, divulge or communicate any information acquired by that person in their role as a member or officer of the AAT. Item 27 will have the effect that, if the prohibition in section 81 of the ASIO Act applied to a person before the transition time, it will continue to apply to people who were members or officers of the AAT, notwithstanding subsequent amendments to that provision (such as amendments to replace the reference to the AAT with references to the Tribunal).

PART 7 - MEMBERS OF THE TRIBUNAL AND CHIEF EXECUTIVE OFFICER AND PRINCIPAL REGISTRAR

1550. This Part deals with transitional arrangements relating to the President, Deputy Presidents who are judges, and certain other members of the AAT.

Item 28: President of the Tribunal

1551. This item provides that the person who is the President of the AAT immediately before the commencement of the Tribunal will become the President of the Tribunal at the transition time.

1552. The person will serve as the President of the Tribunal for the remainder of the term for which the person was appointed as President of the AAT.

1553. This arrangement is consistent with the intention announced by the Government when commencing the merit-based and transparent recruitment process for the President of the AAT in February 2023.

Item 29: Deputy Presidents who are judges

1554. This item provides that a judge who was also a Deputy President of the AAT immediately before the commencement of the Tribunal will become a Judicial Deputy President of the Tribunal.

1555. The judge will serve as a Judicial Deputy President of the Tribunal for the remainder of the term for which the judge was appointed as a Deputy President of the AAT.

Item 30: AAT members - certain appointments on or after 1 January 2023

1556. The ART Bill sets out the processes by which appointments of non-Judicial Deputy Presidents, salaried members and sessional members of the Tribunal will be made. This item provides for certain members of AAT to automatically become members of the Tribunal at the transition time. In particular, members of the AAT who were appointed on or after 1 January 2023 in accordance with the government's 'Guidelines for appointments to the Administrative Appeals Tribunal' will become members of the Tribunal for the remainder of their term of appointment.

1557. This approach reflects the fact that members who have been appointed in accordance with the 'Guidelines for appointments to the Administrative Appeals Tribunal' (which was published in December 2022 and is available on the website of the Attorney-General's Department) will have been appointed via a transparent and merit-based process of the kind required for the appointment of members to the Tribunal under the ART Bill. This is because key features of the 'Guidelines for appointments to the Administrative Appeals Tribunal' include that:

•

expressions of interest are to be sought through public advertisement

•

the selection of non-judicial members is to be made against a core set of selection criteria, supplemented by additional criteria as required, 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 to be provided to the Attorney-General setting out candidates found suitable for appointment, and the Attorney-General will use the panel report to recommend appointments.

Transfer to the ART

1558. This item applies if a person was a member of the AAT immediately before the transition time, the person is not covered by a previous provision of Part 7 (that is, the person is not the President of the AAT or a Deputy President of the AAT who is a judge), and the person was appointed as a member of the AAT on or after 1 January 2023 and as a result of a selection process conducted in accordance with the 'Guidelines for appointments to the Administrative Appeals Tribunal'. Subitem 30(2) provides that the person becomes a member of the Tribunal in an equivalent role. In particular:

•

if the person was a Deputy President but not a judge, the person becomes a Non-Judicial Deputy President of the Tribunal

•

if the person was a senior member (level 1 or 2), the person becomes a senior member of the Tribunal, and

•

if the person was a member (level 1, 2 or 3), the person becomes a general member of the Tribunal.

1559. Subitem 30(3) provides that if the person was a full-time member of the AAT, the person becomes a salaried member of the Tribunal. A salaried member is most equivalent to a full-time AAT member, in that the person is paid an annual salary. Subitem 30(4) provides that if the person was a part-time member of the AAT, the person becomes a sessional member of the Tribunal. A sessional member is most equivalent to a part-time AAT member, in that the person is paid a daily rate.

1560. Subitem 30(5) provides that the person is taken to be appointed to the Tribunal for the remainder of the term for which the person was appointed as a member of the AAT. For example, if a person was appointed as a member of the AAT for a term expiring on 31 July 2025, the person's term as a member of the Tribunal will expire on that date.

Terms and conditions

1561. Subitem 30(6) deals with the terms and conditions for members who transfer to the Tribunal. It provides that, for the remainder of the person's term, the terms and conditions (including remuneration) of the person's appointment to the Tribunal must be equal to, or better than, the terms and conditions that applied to the person as a member of the AAT immediately before the transition time. The note under subitem 30(6) clarifies that the person's remuneration will not be better than their remuneration as a member of the AAT unless a higher level of remuneration is determined by the Remuneration Tribunal. The intention of this subitem is that an AAT member who is transferred to become a Tribunal member under subitem 30(2) will not have their remuneration lowered as a result of their transfer to the Tribunal.

Reappointments

1562. Subitem 30(7) provides a transitional rule for reappointments of senior members and members transferred to the Tribunal under this item. It ensures that any reappointments for this cohort would follow the same reappointment process as set out in subclauses 207(7), (8) and (9), and subclauses 208(8), (9) and (10), of the ART Bill.

Leave entitlements

1563. Subitem 30(8) provides that, to avoid doubt, any leave entitlements the person had accrued immediately before the transition time as a member of the AAT continue in effect for the person as a member of the Tribunal. This provides appropriate continuity for those entitlements.

Item 31: AAT members appointed as ART members

1564. This item deals with the scenario in which a person is a full-time member of the AAT immediately before the transition time, the person is not automatically transferred to the Tribunal as a result of items 28 to 30, but the person successfully applies for appointment to the Tribunal and commences as a member of the Tribunal at, or immediately after, the transition time. This item sets out arrangements relating to the person's remuneration and leave entitlements when they commence their appointment as a member of the Tribunal.

Remuneration

1565. Subitem 31(2) sets out what happens to the person's remuneration once they commence their appointment as a member of the Tribunal.

1566. The effect of subitem 31(2) is that if, at the transition time, there would have been time remaining on the term of the person's appointment to the AAT, the person's remuneration as a member of the Tribunal cannot, for a certain period, be lower than the amount they would have received as a member of the AAT. In particular:

•

if there were four months or more remaining on the term of the person's appointment to the AAT – the person's remuneration for the first four months of the person's appointment as a member of the Tribunal must not be less than the amount of remuneration the person would have received if the person had continued as a member of the AAT for those four months, or

•

if there was less than four months remaining on the term of the person's appointment to the AAT – the person's remuneration for the period of that remaining term after the transition time as a member of the Tribunal must not be less than the amount of remuneration the person would have received a member of the AAT for that period.

1567. The amount referred to in subitem 31(2) is to be calculated by reference to the person's remuneration immediately before the transition time. Subitem 31(2) does not prevent a person receiving a higher amount of remuneration if the person is appointed to a Tribunal role to which a higher amount of remuneration applies.

1568. This requirement is illustrated by the following examples:

•

A person is a member of the AAT immediately before the transition time. At the transition time, the person commences an appointment as a member of the Tribunal. At the transition time, there were six months remaining on their term of appointment to the AAT. The effect of subitem 31(2)(a) is that, for the first four months of their term as a member of the Tribunal, their remuneration cannot be lower than the amount they would have earned as a member of the AAT for those four months.

•

A person is a member of the AAT immediately before the transition time. At the transition time, the person commences as a member of the Tribunal. At the transition time, there were two months remaining on their term of appointment to the AAT. The effect of subitem 31(2)(b) is that, for the first two months of their term as a member of the Tribunal, their remuneration cannot be lower than the amount they would have earned as a member of the AAT for those two months.

•

A person is a member of the AAT but their term of appointment ends immediately before the transition time. At the transition time, the person becomes a member of the Tribunal. Because there was no time remaining on the person's term as a member of the AAT, the person is not covered by subitem 31(2). From the commencement of their appointment to the Tribunal, the person is remunerated in accordance with the Remuneration Tribunal determination for members of the Tribunal.

1569. Subitem 31(2) applies regardless of the Tribunal role to which the person is appointed. For example, if a person who is a Deputy President of the AAT immediately before the transition time (and has 12 months remaining on their term of appointment) is appointed as a senior member of the Tribunal, subitem 31(2)(a) operates to ensure that, for the first four months of the person's term as a senior member of the Tribunal, the person's remuneration is not less than the amount they would have received as a Deputy President of the AAT for those four months.

1570. The purpose of these arrangements is to ensure that relevant members of the AAT are not financially disadvantaged by accepting an appointment to the Tribunal, compared to relevant members of the AAT who are not appointed to the Tribunal and to whom item 32 applies.

1571. These arrangements are in substitution of any compensation that would otherwise be payable to the person as a result of them losing their office as an AAT member. Subitem 31(3) makes it clear that that no other compensation is payable by the Commonwealth in relation to the person's appointment as a member of the AAT. To avoid doubt, subitem 31(8) clarifies that the Remuneration Tribunal (Compensation for Loss of Office for Holders of Certain Public Offices) Determination 2018 does not apply in relation to the person's appointment as a member of the AAT. This means that the person would not be entitled to any compensation other than that provided for in subitem 31(2).

Leave entitlements

1572. Subitems 31(4), (5), (6) and (7) set out what happens to the person's leave entitlements once they commence their appointment to the Tribunal.

1573. The default position is that any leave entitlements that the person had accrued immediately before the transition time as a member of the AAT continue in effect for the person as a member of the Tribunal. This is despite subsection 30(3) of the Remuneration Tribunal (Judicial and Related Offices - Remuneration and Allowances) Determination (No. 2) 2023, which would otherwise operate to entitle the person to be paid the balance of their recreation leave on leaving their office as a member of the AAT.

1574. This default position is subject to an exception in subitem 31(6). The exception is that the person may instead elect to have any leave entitlements the person had accrued immediately before the transition time as a member of the AAT paid out, in accordance with subsection 30(3) of the Remuneration Tribunal (Judicial and Related Offices - Remuneration and Allowances) Determination (No. 2) 2023. Subitem 31(7) provides that, if a person wishes to make an election under 31(6), the election must be in writing, signed by the person, and given to the Registrar of the AAT no later than 21 days before the transition time. This time limit will ensure the AAT is given sufficient notice to arrange for leave entitlements to be paid out. Clause 2 of the Consequential Bill provides that item 31 will commence on the day after the Consequential Bill receives the Royal Assent. This means that the subitem will be in force at the time when a person is required to make the election.

1575. These arrangements apply regardless of the amount of time that would have remained on the person's appointment as a member of the AAT.

1576. These arrangements ensure that members of the AAT who are appointed to the Tribunal can determine what happens to their leave entitlements depending on their personal preference and circumstances.

Item 32: AAT members not appointed as ART members

1577. This item deals with a scenario in which a person is a full-time member of the Tribunal immediately before the transition time and whose term of appointment to the AAT would have continued past the transition time, but the person is not automatically transferred to the Tribunal under items 28 to 30, and is not appointed to the Tribunal for a term commencing at, or immediately after, the transition time.

1578. The effect of this item is that the person will be entitled to compensation. Subitem 32(2) identifies the amount of compensation that a person is entitled to. The amount depends on how much time was remaining on the person's term as a member of the AAT at the transition time. In particular:

•

if, at the transition time, the remainder of the term for which the person was appointed as a member of the AAT is four months or more, the Commonwealth must pay the person an amount equal to four months remuneration, or

•

if, at the transition time, the remainder of the term for which the person was appointed as a member of the AAT is less than four months, the Commonwealth must pay the person the amount the person would have received as remuneration for the remainder of that term.

1579. In each scenario, the amount payable by the Commonwealth is to be calculated by reference to the person's remuneration immediately before the transition time.

1580. This arrangement ensures that compensation payments are fair and reasonable but not excessive. It is in substitution of any compensation that would otherwise be payable to the person as a result of them losing their office as an AAT member. Subitem 32(3) makes it clear that that no other compensation is payable by the Commonwealth in relation to the person's appointment as a member of the AAT. To avoid doubt, subitem 32(4)(a) clarifies that Remuneration Tribunal (Compensation for Loss of Office for Holders of Certain Public Offices) Determination 2018 does not apply in relation to the person's appointment as a member of the AAT. This means that the person would not be entitled to any compensation other than that provided for under subitem 32(2).

1581. Separate to compensation, it is intended that the person would be paid the balance of their recreation leave on leaving their office as a member of the AAT, in accordance with the Remuneration Tribunal (Judicial and Related Offices - Remuneration and Allowances) Determination (No. 2) 2023. This does not require a transitional provision.

Item 33: Compensation

1582. This item has the effect that this Part is to be read consistently with paragraph 51(xxxi) of the Constitution. It provides that if (apart from this item) the operation of this Part would result in the acquisition of property from a person otherwise than on just terms, and the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

1583. Subitem 33(2) provides that, if the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the FCA or the Supreme Court of a State or Territory for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

1584. Subitem 33(3) clarifies that, in this item:

•

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

•

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

Item 33A: Appointments to commence at or shortly after the transition time

1585. This item clarifies arrangements for appointments to the Tribunal which may be made ahead of, and for a short period after, the commencement of the ART Bill.

Requirement to consult with the President of the ART

1586. Item 28 of Schedule 16 provides that the person who is President of the AAT immediately before the ART Bill commences will become the President of the Tribunal upon that Bill's commencement. This means that the position of 'President of the ART' will only come into existence at the commencement time – notwithstanding that the individual filling the role is the same. This technicality means that, without clarification, any consultation with the position of 'President of the ART' could not occur until after the ART Bill commences, causing delays and preventing proper preparations for the new Tribunal to start operations.

1587. Subitems 33A(1)-(3) clarify how consultation requirements relating to appointments under the ART Bill may be met prior to the commencement of the ART Bill. Under section 4 of the Acts Interpretation Act, powers (including powers to make appointments) conferred under a new Act may be exercised from the time the Act is enacted. Given the number of appointments that will be required to establish the Tribunal, some appointments to the Tribunal will be made in reliance on section 4 of the Acts Interpretation Act to support a smooth transition period, ensure members are in place to hear matters from the commencement of the Tribunal and provide certainty to candidates as to their appointment status.

1588. Under clauses 206, 207 or 208 of the ART Bill, the Minister must consult with the President of the Tribunal before recommending candidates for appointment as Judicial Deputy Presidents, Non-Judicial Deputy Presidents, Senior Members and General Members. Subitem 33A(2) provides that the ART Bill consultation requirements do not apply to appointments made before the ART Bill commences. Instead subitem 33A(3) provides that the Minister must consult the President of the AAT in relation to appointments.

1589. Subitems 33A(6)-(8) make equivalent amendments in relation to the requirements to consult with the President of the Tribunal prior to appointing the Principal Registrar of the Tribunal.

1590. These provisions ensure there is no risk of technical non-compliance with the consultation requirements merely because the office of President of the Tribunal has not yet been established. Because the President of the AAT and the President of the Tribunal will be the same person, the substantive effect of the consultation requirements remains the same. The provisions cease to have effect once the ART Bill commences.

Merit-based assessment processes conducted prior to the ART Bill's commencement - ART members

1591. Subitem 33A(4) clarifies that the Minister may be satisfied that a person has been assessed as suitable for appointment as a Non-Judicial Deputy President, Senior Member or General Member of the Tribunal where the person has been assessed as suitable for appointment through a process that was conducted in accordance with the Guidelines for appointments to the Administrative Appeals Tribunal (the Guidelines), and where the process commenced on or after 1 July 2023.

1592. The is necessary because clauses 207 and 208 of the ART Bill require assessment processes to be conducted by a panel established under clause 209. As clause 209 of the ART Bill will commence with the rest of that Bill, transitional arrangements are necessary to allow appointments to the Tribunal to be made with certainty. Otherwise, there is a risk of technical non-compliance as it will not be possible for panels established under clause 209 to conduct the assessment prior to the commencement of that provision.

1593. This subitem ensures that candidates are available for appointment to the Tribunal on commencement and for the first 6 months of operation, noting the significant time required to conduct a merit-based assessment process, particularly for the number and breadth of roles required in the Tribunal. The process in the Guidelines 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 core selection criteria.

1594. The subitem also provides that the Minister may only recommend candidates who have been assessed as suitable for appointment through this process - consistent with the ART Bill. Candidates who are not assessed as suitable are not eligible to be appointed.

1595. Subitem 33A(5) provides that appointments in accordance with subclause (4) may only occur for the first 6 months of the Tribunal's operations. This strikes an appropriate balance between ensuring that the merit pools developed in accordance with the Guidelines remain valid (reducing administrative burden for applicants who have completed these assessment processes recently and enabling a smooth commencement of the new Tribunal with its foundation membership) and ensuring that the appointment arrangements under the ART Bill are in full effect within a reasonable timeframe from commencement.

Merit-based assessment processes conducted prior to the ART Bill's commencement – Principal Registrar

1596. Subitem 33A(9) clarifies that the Minister may be satisfied that a person has been assessed as suitable for appointment as the Principal Registrar of the Tribunal where the person was assessed by a panel as suitable through a selection process that was merit-based and included public advertising of the position. This is necessary because clause 227 of the ART Bill will require the assessment processes to be conducted by a panel established under clause 209. As clause 209 of the ART Bill will commence with the rest of that Bill, transitional arrangements are necessary to allow appointments to the Tribunal to be made with certainty. Otherwise, there is a risk of technical non-compliance as it will not be possible for panels established under clause 209 to conduct the assessment prior to the commencement of that provision.. It is essential that the Principal Registrar is in place from the commencement of the Tribunal.

1597. Subitem 33A(9) displaces clause 227(2)(b) of the ART Bill, and substitutes an equivalent – by requiring that the assessment process is conducted by 'a panel of persons' in a process commencing after 1 February 2024. This does not change the substance of the assessment process – the assessment process must still include an assessment panel, just not one established under clause 209 which will not yet have commenced. The amendment also preserves requirements that the process be merit-based and include public advertising of the position.

1598. Subitem 33A(10) provides that the amendments under subclause 33A(9) are only valid for one month following commencement of the ART Bill. This shorter period is appropriate in respect of the Principal Registrar as there will only be one person appointed to that position, so there is no need to preserve the interim arrangements beyond the immediate commencement date of the Tribunal.

PART 8 - MATTERS SPECIFIC TO PARTICULAR ACTS

Division 1 - Migration

1599. The IAA was established under Part 7AA of the Migration Act to provide a limited form of review of certain decisions (fast track decisions) to refuse to grant protection visas to some applicants, including some unauthorised maritime arrivals. Following the 2015 amalgamation of the Commonwealth merits review tribunals, the IAA sits within the Migration and Refugee Division of the AAT.

1600. Schedule 2 of the Consequential Bill repeals Part 7AA of the Migration Act, which sets out the fast track review arrangements and the IAA. All matters that would have been referred or remitted to the IAA will instead progress on the same pathway as other reviewable protection decisions to the Tribunal. Any person who is, or would be, eligible for review at the IAA from the transition time, would instead be eligible for Tribunal review.

1601. Items 35, 36 and 37 set out the rules for certain properly made applications for protection visas and reviews by the IAA that are on foot at the transition time, and ensure that court remittals of particular protection visa refusal decisions after the transition time are transferred/referred to the Tribunal as appropriate, without disruption.

1602. Items 38 to 42 clarify the broader transitional relationship with migration matters.

Item 34: Definitions

1603. This item defines several terms for the purpose of the Migration Act transitional provisions:

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IAA is defined as the Immigration Assessment Authority.

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Minister is defined as the Minister administering the Migration Act 1958.

Item 35: Part 7AA fast track review - decision on protection visa application not made before transition time

Fast track review – terminology

1604. The fast track legislative framework introduced a number of terms and definitions into sections 5 and 473BB of the Migration Act, which are repealed by Schedule 2 of the Consequential Bill.

1605. A fast track applicant is, broadly speaking, a person who arrives in Australia unauthorised and as a result becomes an unlawful non-citizen who has applied for a protection visa (a Subclass 785 [Temporary Protection] visa [TPV] or a Subclass 790 [Safe Haven Enterprise] visa [SHEV]), as well as certain children born in Australia to those persons. Fast track decisions are decisions (subject to some exceptions) to refuse to grant protection visas to fast track applicants. Some specified fast track applicants are known as excluded fast track review applicants; all others are known as fast track review applicants.

Fast track review – protection visa decision after the transition time

1606. Currently, fast track reviewable decisions must be referred by the Minister to the IAA as soon as reasonably practicable after a decision is made. A fast track review applicant cannot make an application for review.

1607. This item applies to fast track applicants who have not received a decision on their protection visa application by the transition time. The relevant visa types are the TPV and the SHEV.

1608. When a decision is made after the transition time to refuse a protection visa to an applicant (being a former fast track applicant), this item imposes an obligation on the Minister to refer the decision to the Tribunal as soon as reasonably practicable.

1609. The referral obligation aligns with current exclusions. That is, the Minister is not to refer to the Tribunal decisions to refuse a protection visa to a fast track applicant based on the following provisions of the Migration Act:

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section 501 – character grounds

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subsection 5H(2) – Article 1F type crimes

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subsection 36(1B) and (1C) – adverse ASIO assessment/threat to security, or

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paragraphs 36(2C)(a) or (b) – Article 1F or 33 type crimes.

1610. A referral by the Minister is taken to be a properly made application to the Tribunal for review of reviewable protection decision. The referral does not need to meet the application requirements in the new Part 5 of the Migration Act. This item provides consistency in the pathway to Tribunal review for people that applied for a TPV or SHEV as a fast track applicant before the transition time, where decisions to refuse a protection visa were referred to the IAA by the Minister automatically.

Item 36: Part 7AA fast track review - decision not made by IAA before transition time

Continuation in ART of matters before the IAA

1611. This item provides for the transition of fast track reviewable decisions that are unresolved in the discontinued IAA by the transition time, to the Tribunal.

1612. Generally speaking, the IAA is required to review a fast track reviewable decision based upon the review material provided to it by the Secretary at the time the decision was referred, and only consider new information in exceptional circumstances.

1613. As the Tribunal is not bound by this restriction and may consider any document or information that it considers relevant, this item could impact on efficiencies and resources of the Tribunal. However, this outcome is considered reasonable given the remaining caseload is relatively small.

1614. This item establishes fair access to merits review without disadvantage or inconvenience to fast track review applicants, and aligns with the principles of the Tribunal and objective of this reform.

Item 37: Part 7AA fast track review - excluded fast track review applicants

Fast track review – protection visa decision after the transition time

1615. 'Excluded fast track review applicants' are fast track applicants who have:

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come from 'safe third countries' or have 'effective protection' in another country (as defined in section 91C of the Migration Act)

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previously entered Australia and made a protection visa application which was refused or withdrawn

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made an unsuccessful claim for protection in another country

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made an unsuccessful claim for protection to the UN High Commissioner for Refugees (UNHCR)

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provided 'without reasonable explanation' a 'bogus document' in support of the application (as defined in subsection 5(1) of the Migration Act), or

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made, in the opinion of the Minister, a 'manifestly unfounded' claim.

1616. The Minister can also expand the grounds on which someone may be designated an 'excluded fast track applicant' through a legislative instrument.

1617. This item applies where:

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before transition time – a person was an excluded fast track review applicant and a decision had been made to refuse to grant a protection visa to the person (other than on the grounds mentioned in item 35 above), and

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after transition time – a court remits the decision to refuse the person a protection visa to the Minister, and a decision has been made to refuse to grant a protection visa to the person (other than on the grounds mentioned in item 35 above).

1618. For consistency, this item does not apply where the protection visa was refused because the Minister or delegate is not satisfied the person passes the character test under section 501 of the Migration Act, or the protection visa was refused under subsections 5H(2), 36(1B) or (1C), or paragraphs 36(2C)(a) or (b) of that Act.

1619. This item imposes an obligation on the Minister to refer the subsequent decision to refuse to grant the protection visa (other than on the grounds mentioned in item 35 above) to the Tribunal as soon as reasonably practicable.

1620. This item confers jurisdiction on the Tribunal for a cohort who does not currently have access to merits review. While this may have an impact on the Tribunal's resources, this outcome is considered reasonable given this is a time-limited caseload.

Item 38: Minister may substitute a more favourable decision

1621. Existing section 351 of the Migration Act provides that the Minister may substitute an AAT decision on review of a Part 5 reviewable decision or a Part 7 reviewable decision, if the Minister considers it is in the public interest to do so.

1622. New section 351 only applies to decisions made by the Tribunal after the transition time. This item allows the Minister, after the transition time, to substitute a more favourable decision for an AAT decision made before the transition time under existing sections 349 or 415 of the Migration Act.

Item 39: Date of migration decision

1623. Sections 477, 477A and 486A of the Migration Act set out time limits for applications to be made to the FCFCOA (Division 2), the FCA and the High Court respectively, for a remedy to be granted in the court's original jurisdiction in relation to a migration decision. An application is to be made within 35 days of the date of the migration decision.

1624. This item provides that if a particular date is taken to be the date of the migration decision prior to the transition time under the existing definition of date of a migration decision in subsection 477(3) of the Migration Act, that date will continue to be taken to be the date of the migration decision after the transition time.

1625. The purpose of this item is to ensure that the date a decision is taken to have been made (including by the discontinued IAA) would continue to apply, so that the time limits on applications for judicial review are not affected by the amendments in Schedule 2 of the Consequential Bill.

Item 40: Section 486D of the Migration Act 1958

1626. Section 486D of the Migration Act provides that a person must not commence proceedings for judicial review of a 'tribunal decision' in the High Court, FCA or FCFCOA (Division 2) unless that person has disclosed any other judicial review proceedings in relation to that tribunal decision. If there has not been compliance with section 486D, an application filed in the court may be deemed incompetent.

1627. The term 'tribunal decision' is defined for the purposes of section 486D in subsection 486D(5) of the Migration Act. This item preserves this definition so that section 486D continues to apply on or after the transition time to a privative clause decision, or purported privative clause decision, made on review before the transition time by the AAT under Part 5 or 7 or section 500 or by the IAA under Part 7AA.

1628. The purpose of this item is to confirm that the amendments in Schedule 2 of the Consequential Bill do not alter the character of decisions that have already been made, and to ensure that the litigation-related provisions in Parts 8, 8A and 8B of the Migration Act that apply to those types of decisions continue to apply.

Item 41: Delegation

1629. Section 496 of the Migration Act empowers the Minister to delegate any of their Ministerial powers under that Act. The delegate is, in the exercise of a power delegated, subject to the directions of the Minister.

1630. This item allows the Ministerial powers and functions under this Schedule to be delegated.

Item 42: Applications that are finally determined

1631. 'Finally determined' is defined in the Migration Act to ensure certainty on when the Tribunal becomes functus officio, and thereby has no power to vary or revoke a decision. This is essential for the proper administration of the Migration Act. This item provides that Schedule 2 of the Consequential Bill (which includes an amendment to the definition of 'finally determined' to reflect updated terminology) does not apply to an application that was finally determined before the transition time.

1632. The effect of this item is to confirm, for the avoidance of doubt, that no further merits review rights are available to a person under the Consequential Bill, if their migration or protection matter has been 'finally determined' prior to the commencement of the Tribunal.

1633. This item ensures that visa applications which have been finally determined before the transition time remain finally determined. Any person already assessed by the AAT or IAA would not have their cases 're-enlivened' under the Tribunal. Similarly, any excluded fast track review applicant who has had their application refused and has exhausted all avenues of judicial review before the Tribunal commences would not attain new merits review rights.

Division 2 - Social services

General outline

1634. This Bill makes amendments to social security legislation to provide for parties to reviews of social services decisions that are underway or recently completed at the time of transition to access second review of those decisions, pending the transition to guidance and appeals panel review of those decisions.

1635. These transitional arrangements seek to preserve appeal rights for all social security and child support applicants that existed prior to the date of commencement of the Tribunal. To achieve these objectives, applicants with transitional rights as described below will be able to able to access second review in the General jurisdictional area of the Tribunal. Allowing applicants with transitional rights to undergo a second review at the General jurisdictional area preserves their right to second review without requiring discretion from the Tribunal President to refer a matter for further review at the guidance and appeals panel.

Item 43: Definitions

1636. This item defines key terms used in this Division to mean:

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AAT second review has the same meaning as in the old law.

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ART social services decision has the meaning given by the new Act.

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second review has the meaning given by the new Act.

Item 44: No second review following AAT second review

Right to apply for review – AAT second review matters not finalised at transition time

1637. This item provides that a person cannot apply for second review in the Tribunal if they have applied for AAT second review for the same decision. This ensures that the decision cannot be reviewed a third time, as a consequence of the transition from AAT second review to second review of social services decisions in the Tribunal.

PART 9 - TRANSITIONAL RULES

Item 51: Transitional rules

1638. This item permits the Minister, by legislative instrument, to make rules prescribing further transitional arrangements that are required or permitted by the Consequential Bill, or necessary or convenient for carrying out or giving effect to the Consequential Bill.

1639. The Minister may make rules prescribing transitional arrangements that relate to the provisions of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 which amend or repeal other legislation, or enactment of the new Act. This includes rules to:

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modify provisions of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 or the new Act, or provide for the application (with or without modifications) of provisions of those Acts to matters to which they would otherwise not apply, and

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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 retrospective rules, is necessary to provide the Minister with the discretion and flexibility to deal with matters or circumstances that are not covered in the Consequential Bill. The transitional provisions in this Schedule will apply in relation to a very large number of applications and proceedings, and it may not be possible to anticipate the full range of circumstances which the transitional provisions will need to accommodate. The rule-making power enables the Minister to deal with unintended outcomes, or unforeseen issues, in relation to the transition from the AAT to the Tribunal which could require immediate or prompt changes. This is particularly important to ensure that applications made to the Tribunal relating to decisions made before the transition time, and AAT proceedings that are transferred to the Tribunal, can be dealt with smoothly and with as little disruption to the parties as possible.

1642. While the rules may be made to have retrospective application, subitem 51(5) makes it clear that a person could not be convicted of an offence or ordered to pay a pecuniary penalty in relation to conduct before the registration date if the conduct would not have contravened an existing Act. This means that the rules would not be able to retrospectively criminalise conduct or retrospectively apply a penalty.

1643. In addition, subitem 51(6) places limits on the transitional rules which could be made, and makes it clear that the Minister could not make rules which:

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create an offence or civil penalty

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provide powers of arrest or detention or powers of entry, search or seizure

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impose a tax

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set an amount to be appropriated from the Consolidated Revenue Fund

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directly amend the text of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 or the new Act.

PART 10 - CONSULTATION BEFORE TRANSITION TIME

Item 52: Consultation in relation to rules before the transition time

1644. Clause 295 of the ART Bill enables the Minister to make rules (by legislative instrument) about anything the Bill requires or permits to be prescribed in rules, or about matters that are necessary or convenient to give effect to the Bill. The proposed amendment to clause 295 (to insert a new subclause (6)) requires the Minister to consult the President of the Tribunal before making rules affecting the practice, procedure or operations of the Tribunal.

1645. Item 52 clarifies that where the Minister makes rules under the ART Bill prior to the commencement of that Bill (as is permitted by section 4 of the Acts Interpretation Act), the Minister must consult the President of the AAT, instead of the President of the Tribunal.

1646. This item ensures technical compliance with the provision despite the office of the President of the Tribunal not yet having formally commenced, and does not substantively alter the consultation requirements because the President of the AAT immediately before the transition time will become the President of the Tribunal via item 28 of Schedule 16.

1647. The item is necessary as a number of rules under the ART Bill will need to be in place ahead of the commencement of the ART Bill, to support the efficient commencement of the Tribunal. This transitional provision supports the timely making of rules ahead of time, which will provide certainty and clarity for Tribunal users about the procedures and operations of the Tribunal upon its commencement.

SCHEDULE 17 - REPEALS

Administrative Appeals Tribunal Act 1975

Item 1: The whole of the Act

1648. Item 1 repeals the whole of the AAT Act.