House of Representatives

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 (Miscellaneous Measures) Bill 2024 (the Bill) forms part of a package of legislation that abolishes the Administrative Appeals Tribunal (AAT) and establishes 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 Act 2024 (ART Act) establishes the Tribunal and sets out its operating framework. The Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Consequential Act 1) repeals the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), makes consequential amendments to 138 Commonwealth Acts and facilitates the smooth transition from the AAT to the Tribunal. The Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Act 2024 (Consequential Act 2) makes consequential amendments to 110 Commonwealth Acts that interact with the AAT Act, including Acts that have required consultation with States and Territories under cooperative schemes or intergovernmental agreements.

3. The Bill would make further amendments to 52 Commonwealth Acts (including the ART Act), to update references to the AAT in legislation that has passed or been introduced to Parliament since the introduction of the ART Act and to make technical amendments to support the efficient conduct of Tribunal review and ensure the legislation operates as intended.

Amendments to the ART Act

4. The Bill would amend the ART Act to improve the operation of provisions and the experience of applicants.

5. For example, the Bill would make amendments to exclude the period between 24 December and 14 January from the calculation of the 28-day period from which a party can appeal a decision of the Tribunal to the Federal Court of Australia. This would align the ART Act with the Federal Court Rules 2011 and address practical difficulties and disadvantages to parties seeking to make an appeal over the holiday period.

6. Additionally, the Bill would amend the provisions of the ART Act that enable the President to authorise members and registrars to perform certain powers and functions of the Tribunal. The amendments would exclude the powers and functions under Part 6 of the ART Act, which relates to the Intelligence and Security jurisdictional area. The functions and powers exercised under Part 6 involve high levels of sensitivity, including making and recording findings and communicating decisions. These functions and powers should be reserved for the Tribunal as constituted.

7. To ensure the efficient and effective operation of the legal or financial assistance framework under the ART Act, the Bill would make amendments to ensure that the Attorney-General can delegate the power to authorise the payment of costs or grant legal or financial assistance to officers in the department.

8. The Bill would also make amendments to clarify who can continue an application for review of a decision where the original applicant in relation to the decision has died, become bankrupt, is wound up, ceases to exist, or becomes subject to any form of liquidation or administration. The amendments would provide that a person may only apply to continue the substantive application if they would have been able to apply for review of the decision at the time the application was originally made. This would ensure that section 84 does not conflict with other legislative provisions relating to standing to apply.

Amendments to other Acts

Terminology changes and updating cross-references

9. The Bill would update terminology in recent Commonwealth Acts and Bills before Parliament to replace references to the AAT and AAT Act with references to the Tribunal and the ART Act. 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.

10. The Bill would also replace references to provisions of the AAT Act with references to the equivalent, or broadly equivalent, provisions under the ART Act. These amendments would ensure that other legal frameworks reflect the terminology, concepts, structure and other policy settings in the ART Act or are otherwise consistent with the ART Act. This would ensure that laws apply as intended.

Consistency of timeframes to apply for review of a deemed decision

11. Under section 16 of the ART Act, if the decision of a person not to do a thing is a reviewable decision and the person does not do the thing within a quantified period as provided for under an Act, the person is deemed to have made a decision not to do the thing at the end of the period (a deemed decision).

12. Subsection 18(1) of the ART Act provides that the timeframe for applying to the Tribunal will be set out in the rules. Subsection 18(3) provides that the rules cannot prescribe a timeframe ending before a day less than 28 days after the day a decision is made. The rules will include timeframes for applying for review of a deemed decision.

13. Consequential Acts 1 and 2 amend Acts specifying timeframes for review of decisions to ensure that the standard timeframe for review in section 18 of the ART Act applies, unless the timeframe in the other Act is longer. However, provisions specifying timeframes for review of deemed decisions (decisions taken to be made due to the passage of time) were left. This Bill will remove those provisions to ensure consistent arrangements in relation to calculation of timeframes to apply for a review of deemed decisions.

14. There is currently inconsistency across legislation in relation to the timeframes to apply for review to the Tribunal of deemed decisions made under those Acts, creating unnecessary administrative burden for the new Tribunal. Some Acts provide the 28 days to apply begins on the day the decision was deemed to be made whereas others provide it begins the day after the decision was deemed to be made. Under the ART Act, the timeframe begins on the day after the decision is made, and must not be less than 28 days from that day. The consequential amendments made by this Bill will achieve consistency with the approach to timeframes in the ART Act, without any reduction to existing timeframes.

Ability to change a decision once a matter is referred to the guidance and appeal panel

15. Section 31 of the ART Act provides that a decision cannot be altered outside of the Tribunal process. This means that while a reviewable decision is under review by the Tribunal, the decision may only be altered with the agreement of the Tribunal and the parties, or if it is remitted to the decision-maker under section 85 of the Act.

16. The application of this clause is subject to contrary intention contained in another Act. Legislation in the Social Services, Health, Veterans' Affairs, Education and Employment and Workplace Relations portfolios alter this arrangement, allowing for a decision to be altered by the decision maker while the decision is before the Tribunal. This ensures that a more favourable decision to the applicant can be made expeditiously, without awaiting the outcome of the review by the Tribunal.

17. This Bill would amend such provisions to ensure that section 31 of the ART Act applies in relation to guidance and appeals panel proceedings. These proceedings concern matters of systemic significance or possible errors by the Tribunal and the Tribunal must have visibility of how they are resolved. Similar amendments were made in Consequential Act 1 in relation to legislation in the Social Services portfolio. The amendments would not prevent a decision-maker from substituting a more favourable decision provided it is done in accordance with section 31 of the ART Act.

Immunity for nominated Tribunal members issuing post-entry and delayed notification search warrants

18. The Crimes Act 1914 (Crimes Act) provides for nominated Tribunal members to issue post-entry and delayed notification search warrants.

19. The legislative notes to sections 3UJC and 3ZZAD of the Crimes Act reference section 293 of the ART Act, which provides immunities to members in the performance of their functions as a member of the Tribunal. Other similar provisions of the Crimes Act contain a standalone immunity, providing nominated Tribunal members with the same protection and immunity as a Justice of the High Court in relation to exercising the function.

20. The Bill would amend sections 3UJC and 3ZZAD of the Crimes Act to contain a standalone immunity for nominated Tribunal members, to harmonise drafting with other similar functions (see, for example, the power to extend authorities for controlled operations in sections 15GG and 15GU of the Crimes Act). The amendments reflect the policy intent to ensure that nominated Tribunal members enjoy appropriate and consistent immunity and protection for exercising functions under the Crimes Act that are that are in addition to their usual duties.

Removing time limits to apply for review of certain Social Services decisions

21. The Bill would amend legislation in the Social Services portfolio to remove the three-month time limit to apply for both internal and Tribunal review of ABSTUDY or Assistance for Isolated Children (AIC) debt decisions. This time limit is anomalous, and does not apply in reviews of debt decisions in relation to other social security payments. By removing the time limit from the ABSTUDY and AIC debt decisions, the Bill removes a potential barrier for individuals seeking review of government decisions.

Procedural and technical amendments to clarify drafting and ensure provisions operate as intended

22. The Bill would also make technical and procedural clarifications to ensure the legislation operates as intended.

23. For example, the Bill would amend legislation toensure that provisions relating to when decisions become final account for the guidance and appeals panel. This is a new feature of the ART Act, and amendments are required to ensure that existing provisions operate as intended.

24. Amendments within the Home Affairs portfolio would remove ambiguity about the requirements to make a valid application for review of a migration or protection decision, and how the Tribunal may deal with applications that do not meet minimum requirements. Amendments also ensure that decision-makers under the Migration Act must participate in guidance and appeals panel proceedings so that that matters raising issues of significance to administrative law are properly ventilated.

FINANCIAL IMPACT

25. Nil

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Administrative Review Tribunal (Miscellaneous Measures) Bill 2024

26. 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 Bill

27. The Administrative Review Tribunal (Miscellaneous Measures) Bill 2024 (the Bill) forms part of a package of legislation that abolishes the Administrative Appeals Tribunal (AAT) and establishes the Administrative Review Tribunal (the Tribunal), a new federal administrative review body that is user-focused, efficient, accessible, independent and fair.

28. The Administrative Review Tribunal Act 2024 (ART Act) establishes the Tribunal and sets out its operating framework. The Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Consequential Act 1) repeals the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), makes consequential amendments to 138 Commonwealth Acts and facilitates the smooth transition from the AAT to the Tribunal. The Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Act 2024 (Consequential Act 2) makes consequential amendments to 110 Commonwealth Acts that interact with the AAT Act, including Acts that have required consultation with States and Territories under cooperative schemes or intergovernmental agreements.

29. The Bill would make further amendments to 52 Commonwealth Acts (including the ART Act), to update references to the AAT in legislation that has passed or been introduced to Parliament since the introduction of the ART Act and to make technical amendments to support the efficient conduct of Tribunal review and ensure the legislation operates as intended.

Amendments to the ART Act

30. The Bill would amend the ART Act to improve the operation of provisions and the experience of applicants. Amendments include:

•

excluding the period between 24 December and 14 January from the calculation of the 28-day period from which a party can appeal a decision of the Tribunal to the Federal Court of Australia

•

amending authorisations so that persons exercising powers and functions in the Tribunal's Intelligence and Security jurisdictional area are of an appropriate level of seniority and experience

•

ensuring that the Attorney-General can delegate the power to authorise the payment of costs or grant legal or financial assistance to officers in the department, and

•

clarifying that where an applicant is no longer able to continue with an application for review of a decision for reasons such as death, bankruptcy or liquidation, another person may only apply to continue the proceeding if they would have been able to apply for review of the substantive decision.

Amendments to other Acts

31. The Bill contains amendments across several portfolios that support the central policy objective of creating a harmonised system of administrative review at the federal level. This includes amendments that:

•

update terminology and update cross-references,

•

remove modifications to the ART Act timeframes to apply for review of deemed decisions, so that the standard timeframe to make an application applies (no less than 28 days, commencing the day after a decision is deemed to have been made),

•

ensure that, when a proceeding is before the guidance and appeals panel, an original decision-maker may only vary or substitute the decision under review in accordance with section 31 of the ART Act, and

•

ensure provisions that refer to actions that can be taken, consequences that flow, or decisions that take effect once a Tribunal review is completed properly reflect the new guidance and appeals panel process in the ART Act.

32. The Bill also makes amendments across several portfolios to ensure that the legislation operates as intended, including:

•

providing immunities for nominated Tribunal members exercising certain functions under the Crimes Act 1914 in a personal capacity, consistent with immunities for other similar functions,

•

removing time limits for seeking internal and Tribunal review for Aboriginal Study Grants Scheme and Assistance for Isolated Children decisions (to align these timeframes with other social security decisions and avoid disadvantage to these applicants), and

•

clarifying the requirements for applications for review of reviewable migration and reviewable protection decisions under the Migration Act 1958, putting beyond doubt the requirements for a properly made application and the consequences of an application being improperly made.

Human rights implications

33. The Bill engages the following human rights:

•

the right to an effective remedy and the right to a fair hearing in Articles 2(3) and 14 of the International Covenant on Civil and Political Rights (ICCPR).

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

34. 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 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 competent authorities enforce any such remedies when granted.

35. The Bill as a whole promotes the right to an effective remedy by supporting the operation of an administrative review tribunal that is user-focused, efficient, accessible, independent and fair.

36. 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 of 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...'.

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

38. The Bill contains amendments that support the ability of affected persons to have access to the administrative review framework established under the ART Act.

39. This Bill amends section 174 of the ART Act to provide that the timeframe to apply for an appeal to the Federal Court of Australia does not include the period between 24 December in one year and 14 January in the next year. This advances access to justice by supporting equal access to legal representation without limiting choice of legal services due to firm shutdown or other availability issues over the holiday period.

40. The Bill also contains amendments that standardise timeframes to apply for review in the Tribunal of a deemed decision across Commonwealth legislation. More consistent and standardised timeframes promote clarity, consistency and accessibility of review by simplifying application processes and promoting efficiency within the Tribunal. The standardised timeframes do not impact particular bespoke arrangements where a different timeframe is appropriate. The amendments do not reduce existing timeframes to apply for review and, in some cases, increase them by one day.

41. The Bill contains amendments to the Migration Act to clarify that failure to properly make an application to the Tribunal for review of a decision under Part 5 of that Act (including failure to pay the prescribed fee) results in the Tribunal having no jurisdiction in relation to the application. This amendment is a technical correction that clarifies the existing arrangements and ensures the workability of Tribunal review for migration and protection visa matters. Existing sections 347, 347A and 348 of the Migration Act provide the requirements for an application to the Tribunal to be 'properly made'. That is, that the application is accompanied by any prescribed fee, prescribed information and prescribed documents. The Tribunal does not have jurisdiction to review an application that is not properly made. The amendments clarify these requirements and the consequences of not meeting them.

42. The amendments may engage the right to an effective remedy and right to a fair hearing (to the extent it applies in Tribunal matters) by defining the requirements to make a valid application to the Tribunal. The amendments are reasonable, in that they prescribe the minimum requirements for an application to be considered and progressed by the Tribunal. They are proportionate, because there is a high volume of applications for review of reviewable migration and protection matters and it is necessary to have certainty as to when a valid application has been made, as this triggers the entitlement to a bridging visa. They are necessary to maintain the integrity of the immigration framework and ensure the efficiency and effectiveness of Tribunal review. In addition, they promote clarity and certainty for applicants.

43. This Bill makes amendments to account for legislation that has passed or been introduced to Parliament since the primary ART legislative package was introduced.

44. It also makes consequential and contingent amendments to the ART Act that reflect amendments to the AAT Act in legislation that was introduced or passed the parliament since the ART legislative package was introduced.

45. These amendments promote the right to an effective remedy and right to a fair hearing (to the extent it applies in Tribunal matters) by ensuring continuity of review rights for decisions made under this legislation.

Conclusion

46. The Bill is compatible with human rights because it promotes the protection of human rights and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

NOTES ON CLAUSES

Clause 1: Short title

47. This clause provides for the short title of the Act to be enacted by the Bill to be the Administrative Review Tribunal (Miscellaneous Measures) Act 2024.

Clause 2: Commencement

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

49. Table item 1 provides that clauses 1-3 of the Bill (and anything not specified elsewhere) commence on the day the Bill receives the Royal Assent.

50. Table item 2 provides that Schedules 1 and 2 (which contain consequential repeals and amendments, including reference changes, to a number of Commonwealth Acts) will commence immediately after the ART Act commences.

51. Table item 3 provides that Division 1 of Part 1 of Schedule 3 of the Bill (which contains contingent amendments to the Help to Buy Act 2024) commences either immediately after the ART Act commences, or immediately after the Help to Buy Act 2024 commences, whichever occurs later.

52. Table item 4 provides that Division 2 of Part 1 of Schedule 3 of the Bill (which contains contingent amendments to the Treasury Laws Amendment (Consumer Data Right) Act 2024) commences either immediately after the ART Act commences, or immediately after the Treasury Laws Amendment (Consumer Data Right) Act 2024 commences, whichever occurs later.

53. Table item 5 provides that Part 2 of Schedule 3 of the Bill (which contains contingent amendments to Australian Navel Nuclear Power Safety Act 2024) commences either immediately after the ART Act commences, or immediately after the Australian Naval Nuclear Power Safety Act 2024 commences, whichever occurs later.

54. Table item 6 provides that Part 3 of Schedule 3 of the Bill (which contains contingent amendments in relation to the Veterans' Entitlements, Treatment and Support (Simplification and Harmonisation) Act 2024) commences either immediately after the ART Act commences, or immediately after the Veterans' Entitlements, Treatment and Support (Simplification and Harmonisation) Act 2024 commences, whichever occurs later.

55. Table item 7 provides that Part 4 of Schedule 3 of the Bill (which contains contingent amendments to the National Disability Insurance Scheme Act 2013) commences either immediately after the ART Act commences, or immediately after the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 commences, whichever occurs later.

56. Table item 8 provides that Part 5 of Schedule 3 of the Bill (which contains contingent amendments Agriculture (Biosecurity Protection) Levies and Charges Collection Act 2024) commences either immediately after the ART Act commences, or immediately after the Agriculture (Biosecurity Protection) Levies and Charges Collection Act 2024 commences, whichever occurs later.

57. Table item 9 provides that Schedule 4 of the Bill (which contains consequential amendments to the ART Act) will commence immediately after the ART Act commences.

58. Table item 10 provides that Schedule 5 of the Bill (which contains contingent amendments to the ART Act) commences either immediately after the ART Act commences, or immediately after the Intelligence Services Legislation Amendment Act 2024 commences, whichever occurs later.

59. The provisions mentioned in table items 3, 4, 5, 6, 7, 8 and 10 will not commence at all if the relevant Acts mentioned in paragraph (b) of each table item do not commence.

60. The note to the table at subclause 2(1) provides that the information contained in the table only applies to provisions in the Bill as originally enacted, and will not be amended to align with any future amendments to the Bill.

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

Clause 3: Schedules

62. This clause clarifies the interaction of amendments to legislation within Schedules to the Bill. Where legislation is amended in a Schedule in the Bill, those amendments (including any repeal) have effect as is contained in the Schedule. Any other item in a Schedule has effect according to its terms.

SCHEDULE 1 - REPEALS

OUTLINE

63. This Schedule contains an amendment to repeal legislation that is redundant as a result of the commencement of the ART Act.

AMENDMENTS

Tribunals Amalgamation Act 2015

Item 1: The whole of the Act

Repealing redundant legislation

64. This item repeals the whole of the Tribunals Amalgamation Act 2015 (TA Act). The TA Act amended 12 Acts, including the AAT Act, to merge the Social Security Appeals Tribunal, the Migration Review Tribunal and Refugee Review Tribunal into the Administrative Appeals Tribunal. The TA Act also made transitional arrangements and consequential amendments to 31 Acts.

65. The TA Act provisions relate to the amalgamation of various Tribunals, which has already occurred, and are therefore replaced by the ART Act.

SCHEDULE 2 - CONSEQUENTIAL AMENDMENTS

OUTLINE

66. This Schedule contains consequential amendments to the following Acts:

Part 1 - Attorney General

•

Bankruptcy Act 1966

•

Crimes Act 1914

•

Freedom of Information Act 1982

Part 2 - Treasury

•

Australian Charities and Not for profits Commission Act 2012

•

Banking Act 1959

•

Corporations Act 2001

•

Financial Accountability Regime Act 2023

•

Financial Institutions Supervisory Levies Collection Act 1998

•

Financial Sector (Collection of Data) Act 2001

•

Financial Services Compensation Scheme of Last Resort Levy (Collection) Act 2023

•

Insurance Acquisitions and Takeovers Act 1991

•

Insurance Act 1973

•

Life Insurance Act 1995

•

Payment Times Reporting Act 2020

•

Petroleum Excise (Prices) Act 1987

•

Private Health Insurance (Prudential Supervision) Act 2015

•

Retirement Savings Accounts Act 1997

•

Small Superannuation Accounts Act 1995

•

Superannuation Industry (Supervision) Act 1993

•

Superannuation (Self Managed Superannuation Funds) Taxation Act 1987

•

Tax Agent Services Act 2009

•

Taxation Administration Act 1953

Part 3 - Finance

•

Digital ID Act 2024

Part 4 - Defence

•

Defence Act 1903

Part 5 - Health and Aged Care

•

Aged Care Act 1997

•

Aged Care (Transitional Provisions) Act 1997

•

Health Insurance Act 1973

•

Public Health (Tobacco and Other Products) Act 2023

Part 6 - Education

•

A New Tax System (Family Assistance) (Administration) Act 1999

•

Higher Education Funding Act 1988

•

Higher Education Support Act 2003

Part 7 - Veterans' Affairs

•

Military Rehabilitation and Compensation Act 2004

•

Safety, Rehabilitation and Compensation (Defence-Related Claims) Act 1988

•

Veterans' Entitlements Act 1986

Part 8 - Climate Change, Energy, the Environment and Water

•

Great Barrier Reef Marine Park Act 1975

Part 9 - Industry, Science and Resources

•

Industry Research and Development Act 1986

Part 10 - Employment and Workplace Relations

•

Australian Apprenticeship Support Loans Act 2014

•

Fair Entitlements Guarantee Act 2012

•

Higher Education Support Act 2003

•

Safety, Rehabilitation and Compensation Act 1988

•

Seafarers Rehabilitation and Compensation Act 1992

•

VET Student Loans Act 2016

Part 11 - Social Services

•

Student Assistance Act 1973

Part 12 - Home Affairs

•

Migration Act 1958

Part 13 - Agriculture, Fisheries and Forestry

•

Primary Industries Levies and Charges Collection Act 2024

•

Primary Industries Levies and Charges Disbursement Act 2024

Part 14 - Infrastructure, Transport, Regional Development, Communications and the Arts

•

New Vehicle Standards Efficiency Act 2024

General terminology changes

67. A number 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 relevant provisions continue to operate in substantively the same way in relation to the new Tribunal.

Other amendments

68. In addition to reference changes, items in this schedule make amendments to legislation to assist the effective operation of the Tribunal, harmonise and simplify legislative provisions and make technical corrections. This includes amendments that:

•

prevent decision-makers from altering decisions that are before the guidance and appeals panel, unless the processes set out in section 31 of the ART Act are followed,

•

repeal specific provisions relating to the timeframes to apply for review of deemed decisions, ensuring that the standard ART Act provisions apply,

•

ensure provisions setting out when decisions become final or action can be taken in relation to a decision account for appeals or potential appeals to the guidance and appeals panel,

•

provide immunities to Tribunal members exercising functions in relation to post-entry warrants and delayed notification search warrants, consistent with other similar functions under the Crimes Act,

•

ensure ART Act provisions referring to the "decision-maker" operate as intended in reviews of FOI decisions,

•

clarify the ability of the President to grant an extension of time to apply for referral of a Tribunal decision to the guidance and appeals panel after the period for making an application has expired, in relation to reviews of decisions in the Treasury portfolio,

•

remove time limits for applying for internal review or Tribunal review of ABSTUDY or AIC debt decisions,

•

displace sections 267 and 268 of the ART Act in relation to decisions under the Migration Act that have more specific notice requirements, so as not to cause uncertainty and confusion,

•

clarify the requirements for applications for review of reviewable migration and reviewable protection decisions under the Migration Act 1958, putting beyond doubt the requirements for a properly made application and the consequences of an application being improperly made.

•

require the Minister to participate in guidance and appeals panel reviews of reviewable migration and protection decisions, and

•

make minor technical corrections and clarifications, including to ensure references to provisions in the ART Act are correct.

Ability to change a decision once a matter is referred to the guidance and appeal panel

69. A number of items in this Schedule make amendments to harmonise the application of section 31 of the ART Act where a decision has been referred to the guidance and appeals panel. Some legislation disapplies or applies contrary to the operation of section 31 of the ART Act, thereby allowing for a decision to be altered by the decision maker while the decision is before the Tribunal. The amendments provide that where a decision is before the guidance and appeals panel, section 31 of the ART Act applies to the decision. This means that the decision cannot be altered, otherwise than by the Tribunal, unless the parties to the proceeding for review and the Tribunal consent to the alteration or it is remitted to the decision-maker under section 85 of the ART Act.

70. A decision is considered to be 'before the guidance and appeals panel' if it has been referred by the President of the Tribunal under section 122 or 128 of the ART Act. Referral under section 122 is an own-motion referral, made because the President is satisfied that an application to the Tribunal for review of a decision raises an issue of significance to administrative decision-making and it is appropriate in the interests of justice for the guidance and appeals panel to consider the matter. A referral under section 128 in response to an application by a party to a Tribunal decision, and made if the President is satisfied that the Tribunal decision raises an issue of significant to administrative decision-making or may contain an error of fact or law materially affecting the Tribunal decision.

71. These amendments ensure the Tribunal has visibility of how matters raising issues of significance to administrative decision-making, or containing a potential error by the Tribunal, are resolved.

Consistency of timeframes to apply for review of a deemed decision

72. This Schedule contains amendments to remove provisions that stipulate a timeframe to apply for ART review of a deemed decision. This means the timeframes contained in the ART Act and related rules will apply. Specifically, subsection 18(1) of the ART Act provides that the rules are to stipulate a timeframe for applications for review. Subsection 18(3) outlines that the rules must not prescribe a period ending before the day that is 28 days after the day a decision is made.

73. Removal of provisions that provide a timeframe to apply for review of a deemed decision will ensure there are consistent arrangements in relation to the calculation of timeframes to apply for review of deemed decisions. This will provide consistency for users and reduce administrative burden for the Tribunal. These amendments do not substantively change the timeframes for applying for review of the relevant decisions. This is because all of the existing provisions specify that the timeframe to apply for review ends either 28 days from, or 28 days after, the decision is deemed to be made.

AMENDMENTS

Part 1 - Attorney-General

Bankruptcy Act 1966

Item 1: Subsection 5(1)

Inserting definition

74. This item inserts a definition of guidance and appeals panel, which has the same meaning as in the ART Act.

Items 2 and 3: Paragraph 149N(2)(b) and after subsection 149N(2)

Clarifying when the decision of the Tribunal is finalised

75. These items amend subsection 149N(2) of the Bankruptcy Act 1966 to ensure the provision properly reflects the guidance and appeals panel process in the ART Act.

76. Subsection 149N(2) currently provides that the cancellation of an objection to a discharge from bankruptcy does not take effect until the end of the period within which an application may be made to the Tribunal for review of the decision, or if such an application is made, the decision of the Tribunal. The effect of a decision of cancellation under section 149N is that a bankrupt is taken to be discharged under section 149A(3) of the Bankruptcy Act 1966.

77. Part 5 of the ART Act allows a party to apply to the President to refer a decision of the Tribunal to the guidance and appeals panel on the basis that it may contain a material error of fact or law or that it raises an issue of significance to administrative decision-making. If this occurs, a decision of the Tribunal in relation to a cancellation may be altered by a later decision of the guidance and appeals panel. Under the current drafting of subsection 149N(2), the cancellation would take effect at the point of the Tribunal's original decision and may later be reversed through the guidance and appeals panel process, potentially resulting in the person being discharged from their bankruptcy only to be 're-bankrupted' as a result of the guidance and appeals panel decision.

78. These items amend paragraph 149N(2)(b) to provide that the cancellation takes effect when the decision of the Tribunal becomes final rather than when the decision is given.

79. They also insert new subsection 149N(2A), which provides that a decision of the Tribunal becomes final:

•

if no application to refer the decision to the guidance and appeals panel is made within the time period, at the end of that time period, or

•

if such an application is made, at the time the application is refused or a decision of the Tribunal on the application is given.

80. New subsection 149N(2B) provides that the period for making the application to refer the decision of the Tribunal to the guidance and appeals panel includes any extension given under section 125 of the ART Act.

81. These amendments ensure that cancellation of an objection to a discharge from bankruptcy does not take effect until the end of the period where the decision may be altered through the guidance and appeals panel process.

Crimes Act 1914

Items 4 and 5: Subsection 3UJC(3) (note) and at the end of section 3UJC

Immunities for Tribunal members

82. These items repeal the note to subsection 3UJC(3) and insert new subsection 3UJC(4) to provide that nominated Tribunal members have the same protection and immunity as a Justice of the High Court in relation to issuing post-entry warrants under the Crimes Act.

83. The note to subsection 3UJC(3), as amended by Consequential Act 2, contains a reference to section 293 of the ART Act, which provides immunities to members in the performance of their functions as a member of the Tribunal. Other similar provisions of the Crimes Act contain a standalone immunity, providing nominated Tribunal members with the same protection and immunity as a Justice of the High Court in relation to exercising the function. These provisions are necessary because Tribunal members issuing warrants do so in their personal capacity and not as part of their functions under the ART Act.

84. Item 5 inserts new subsection 3UJC(4) which provides that nominated Tribunal members issuing post-entry warrants have the same protection and immunity as a Justice of the High Court in relation to issuing such warrants. The amendment reflects the policy intent to ensure that nominated Tribunal members enjoy appropriate and consistent immunity and protection for exercising functions under the Crimes Act.

Items 6 and 7: Subsection 3ZZAD(3) (note) and at the end of section 3ZZAD

Immunities for Tribunal members

85. These items repeal the note to subsection 3ZZAD(3) and insert new subsection 3ZZAD(4) to provide that nominated Tribunal members have the same protection and immunity as a Justice of the High Court in relation to issuing delayed notification search warrants pursuant to the Crimes Act.

86. The note to subsection 3ZZAD(3), as amended by Consequential Act 2, contains a reference to section 293 of the ART Act, which provides immunities to members in the performance of their functions as a member of the Tribunal. Other similar provisions of the Crimes Act contain a standalone immunity, providing nominated Tribunal members with the same protection and immunity as a Justice of the High Court in relation to exercising the function. These provisions are necessary because Tribunal members issuing warrants do so in their personal capacity and not as part of their functions under the ART Act.

87. Item 7 inserts new subsection 3ZZAD(4) which provides that nominated Tribunal members issuing delayed search notification warrants have the same protection and immunity as a Justice of the High Court in relation to issuing such warrants. The amendment reflects the policy intent to ensure that nominated Tribunal members enjoy appropriate and consistent immunity and protection for exercising functions under the Crimes Act.

Freedom of Information Act 1982

Items 8 and 9: After paragraph 61A(1)(b) and paragraph 61A(1)(c)

Modifying references to decision-makers

88. These items amend subsection 61A(1) of the Freedom of Information Act 1982 by repealing paragraph 61A(1)(c) and inserting additional modifications to provisions of the ART Act.

89. Existing subsection 61A(1), as amended by Consequential Act 1, modifies how specified provisions of the ART Act apply in reviews of decisions made under the Freedom of Information Act 1982. The modifications ensure that references to the decision-maker in relevant provisions of the ART Act are taken to mean the agency or Minister who made the Information Commissioner reviewable decision, to ensure the ART Act operates as intended in relation to these reviews.

90. These items insert additional provisions that modify references to the decision-maker to ensure all required references to the ART Act are covered. The listed provisions relate to the obligations on decision-makers to provide information relating to the decision under review to the Tribunal. Modifying these provisions will ensure the Tribunal receives the required information from the agency or Minister who made the relevant reviewable decision, rather than from the Information Commissioner who may not have access to relevant materials or information. These amendments are necessary to ensure the various provisions of the ART Act continue to appropriately apply in relation to reviews of decisions made under the Freedom of Information Act 1982, and that the Tribunal can access the information it requires to conduct reviews.

Items 10: Paragraph 61A(1)(h)

Correcting a typographical error

91. This item amends paragraph 61A(1)(h) of the Freedom of Information Act 1982 (inserted by Consequential Act 1) to correct a typographical error.

Part 2 - Treasury

Australian Charities and Not-for-profits Commission Act 2012

Item 11: Section 300-5

Inserting definition

92. This item inserts a definition of guidance and appeals panel, which has the same meaning as in the ART Act.

Item 12: Subsection 165-10(2)

Clarifying the ability of the ART President to allow a longer period to apply for guidance and appeals panel referral

93. This item amends subsection 165-10(2) of the Australian Charities and Not-for-profits Commission Act 2012 to clarify that the President of the Tribunal may allow a longer period for a party to make an application to refer a decision of the Tribunal to the guidance and appeals panel, as long as the request for more time is made before the period for making the application expires.

94. Section 125 of the ART Act provides that an application to refer a Tribunal decision to the guidance and appeals panel must be made within the period of 28 days after the Tribunal gives a statement of reasons for the decision to the parties, or such longer period as the President, in special circumstances, allows.

95. Existing subsection 165-10(2), as amended by Consequential Act 1, provides that the President of the Tribunal may only allow a longer period to make an application to refer a Tribunal decision to the guidance and appeals panel if the period for making the application in section 125 of the ART Act has not expired. As currently drafted, subsection 165-10(2) may be interpreted as requiring the President to consider and make a decision on the request within that period.

96. Item 12 amends subsection 165-10(2) to provide that the President of the Tribunal may only allow a longer period to make an application to refer a Tribunal decision to the guidance and appeals panel if the request for a longer period is made before the period for making the application has expired. This clarifies that the request for an extension of time must be made before the period for making the application expires (that is, within 28 days of the Tribunal giving its reasons for decision), but allows the President to agree to the request after the period has expired.

97. This item is needed to ensure the President has sufficient opportunity to consider and decide a request for more time if the request is made close to, or on, the final day of the application period.

Item 13: At the end of section 165-35

Clarifying the ability of the ART President to allow a longer period to apply for guidance and appeals panel referral

98. This item is consequential to the amendment to subsection 165-10(2) of the Australian Charities and Not-for-profits Commission Act 2012.

99. Under subsection 165-35(2), if no appeal is lodged against the Tribunal's decision within the period for lodging an appeal, and no application to refer a decision of the Tribunal to the guidance and appeals panel is made within the period for making the application, the decision becomes final at the end of the period.

100. This item inserts new subsection (3) in section 165-35 to clarify that for the purposes of determining when a decision becomes final, the period for making the application includes any extension allowed in accordance with subsection 165-10(2) and section 125 of the ART Act.

Banking Act 1959

Item 14: Subsection 51C(2)

Consistency of timeframes to apply for review of a deemed decision

101. This item repeals subsection 51C(2) of the Banking Act 1959 which provides the timeframe to apply for review of decisions taken to be made under subsection 51B(3) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Corporations Act 2001

Item 15: Section 9 (definition of decision )

Terminology changes

102. This item updates the definition of decision so that it refers to its meaning under the ART Act rather than its meaning under the AAT Act. See explanation of general terminology changes above.

Item 16: Subsection 1297(1)

Operation or implementation of a decision after a person has applied for referral of a Tribunal decision to the guidance and appeals panel

103. This item amends subsection 1297(1) of the Corporations Act 2001 to insert a reference to section 127 of the ART Act (in addition to sections 32 and 178), to clarify the ability of the Tribunal to stay the operation or implementation of a decision following an application to refer a decision to the guidance and appeals panel. Subsection 1297(1) provides for when a decision of the Companies Auditors Disciplinary Board to cancel or suspend the registration of a person as an auditor comes into effect.

104. Consequential Act 1 maintained the effect of the existing law by providing that subsection 1297(1) is subject to sections 32 and 178 of the ART Act. Sections 32 and 178 of the ART Act provide that the making of an application to the Tribunal for review of a decision, or an appeal to the Federal Court from a decision of the Tribunal, does not affect the operation or implementation of the decision unless the Tribunal or court orders otherwise. Section 127 of the ART Act maintains this arrangement when an application is made to the guidance and appeals panel.

105. This item inserts reference to section 127 of the ART Act to clarify that the making of an application to refer a decision of the Tribunal to the guidance and appeals panel also does not affect the operation of the decision, unless the Tribunal orders otherwise.

106. This is a technical amendment intended to clarify that the coming into effect of these decisions is subject to the ability of the Tribunal to stay the operation or implementation of a decision of the Board following an application to refer a decision to the guidance and appeals panel.

Item 17: Subsection 1299K(1)

Updating legislative references

107. This item amends subsection 1299K(1) of the Corporations Act 2001 to insert a reference to section 127 of the ART Act (in addition to sections 32 and 178), to clarify the ability of the Tribunal to stay the operation or implementation of a decision following an application to refer a decision to the guidance and appeals panel.

108. Subsection 1299K(1) provides for when a decision by ASIC to cancel or suspend the registration of a company's registration as an authorised audit company comes into effect.

109. Consequential Act 1 maintained the effect of the existing law by providing that subsection 1299K(1) is subject to sections 32 and 178 of the ART Act. Sections 32 and 178 of the ART Act provide that the making of an application to the Tribunal for review of a decision, or an appeal to the Federal Court from a decision of the Tribunal, does not affect the operation or implementation of the decision unless the Tribunal or court orders otherwise. Section 127 of the ART Act maintains this arrangement when an application is made to the guidance and appeals panel.

110. This item inserts reference to section 127 of the ART Act to clarify that the making of an application to refer a decision of the Tribunal to the guidance and appeals panel also does not affect the operation of the decision, unless the Tribunal orders otherwise.

111. This is a technical amendment intended to clarify that the coming into effect of these decisions is subject to the ability of the Tribunal to stay the operation or implementation of a decision of ASIC following an application to refer a decision to the guidance and appeals panel.

Financial Accountability Regime Act 2023

Item 18: Subsection 94(3) (note)

Updating legislative references

112. This item updates the note to subsection 94(3), replacing the legislative reference to section 27A of the AAT Act with a reference to the equivalent provision in the ART Act, section 266. Consistent with section 27A of the AAT Act, section 266 of the ART Act requires a decision-maker to notify persons who are affected by the decision that a decision has been made, and their right to have the decision reviewed. This amendment is technical in nature and ensures the note remains accurate.

Items 19 and 20: Section 95 (heading) and subsection 95(1)

Terminology changes

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

Item 21: Subsection 95(3)

Updating legislative references

114. This item updates a reference to section 27(1) of the AAT Act to instead refer to the equivalent provision of the ART Act, section 17.

115. Consistent with section 27(1) of the AAT Act, under section 17 of the ART Act, any person whose interests are affected by a decision has standing to apply to the Tribunal for review of that decision. Subsection 95(3) of the Financial Accountability Regime Act 2023 provides that, contrary to section 17 of the ART Act, an application to the Tribunal for review of a decision made by an internal decision reviewer may be made only by, or on behalf of, an affected person for the reviewable decision (as defined by section 91 of the Financial Accountability Regime Act 2023). This reflects the nature of reviewable decisions under the Financial Accountability Regime Act 2023, where it would be burdensome or impractical to provide any person whose interests are affected by a decision with a right to apply for review of the decision.

116. This amendment is technical in nature, and ensures subsection 95(3) of the Financial Accountability Regime Act 2023 continues to operate in substantively the same way in relation to the Tribunal.

Financial Institutions Supervisory Levies Collection Act 1998

Item 22: Subsection 27(7)

Consistency of timeframes to apply for review of a deemed decision

117. This item repeals subsection 27(7) of the Financial Institutions Supervisory Levies Collection Act 1998 which provides the timeframe to apply for review of decisions taken to be made under subsection 27(4) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Financial Sector (Collection of Data) Act 2001

Item 23: Subsection 25D(2)

Consistency of timeframes to apply for review of a deemed decision

118. This item repeals subsection 25D(2) of the Financial Sector (Collection of Data) Act 2001 which provides the timeframe to apply for review of decisions taken to be made under subsection 25C(2). This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Financial Services Compensation Scheme of Last Resort Levy (Collection) Act 2023

Items 24 and 25: Section 25 (heading) and section 25

Terminology changes

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

Insurance Acquisitions and Takeovers Act 1991

Item 26: Subsection 67(2)

Consistency of timeframes to apply for review of a deemed decision

120. This item repeals subsection 67(2) of the Insurance Acquisitions and Takeovers Act 1991 which provides the timeframe to apply for review of decisions taken to be made under subsection 66(4) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Insurance Act 1973

Item 27: Subsection 63(8)

Consistency of timeframes to apply for review of a deemed decision

121. This item repeals subsection 63(8) of the Insurance Act 1973 which provides the timeframe to apply for review of decisions taken to be made under subsection 63(5) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Life Insurance Act 1995

Item 28: Subsection 236(9)

Consistency of timeframes to apply for review of a deemed decision

122. This item repeals subsection 236(9) of the Life Insurance Act 1995 which provides the timeframe to apply for review of decisions taken to be made under subsection 236(6) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Payment Times Reporting Act 2020

Items 29 and 30: Section 54AA (heading) and section 54AA

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

Petroleum Excise (Prices) Act 1987

Item 31: Subsections 12(7) and (8)

Consistency of timeframes to apply for review of a deemed decision

124. This item repeals subsections 12(7) and (8) of the Petroleum Excise (Prices) Act 1987 which provide the timeframe to apply for review of the decisions taken to be made under subsection 12(4) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Private Health Insurance (Prudential Supervision) Act 2015

Item 32: Subsection 168(8)

Consistency of timeframes to apply for review of a deemed decision

125. This item repeals subsection 168(8) of the Private Health Insurance (Prudential Supervision) Act 2015 which provides the timeframe to apply for review of the decisions taken to be made under subsection 168(5) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Retirement Savings Accounts Act 1997

Item 33: Subsection 189(8)

Consistency of timeframes to apply for review of a deemed decision

126. This item repeals subsection 189(8) of the Retirement Savings Accounts Act 1997 which provides the timeframe to apply for review of decisions taken to be made under subsection 189(5) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Small Superannuation Accounts Act 1995

Item 34: Subsection 84(1)

Consistency of timeframes to apply for review of a deemed decision

127. This item repeals subsection 84(1) of the Small Superannuation Accounts Act 1995 which provides the timeframe to apply for review of decisions taken to be made under subsection 82(5) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Item 35: Subsection 84(2) (heading)

Consistency of timeframes to apply for review of a deemed decision

128. This item repeals the heading before subsection 84(2) of the Small Superannuation Accounts Act 1995. This is consequential to the repeal of subsection 84(1) by the previous item.

Superannuation Industry (Supervision) Act 1993

Item 36: Subsection 344(9)

Consistency of timeframes to apply for review of a deemed decision

129. This item repeals subsection 344(9) of the Superannuation Industry (Supervision) Act 1993 which provides the timeframe to apply for review of decisions taken to be made under subsection 344(5) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Superannuation (Self Managed Superannuation Funds) Taxation Act 1987

Item 37: Subsection 16(7)

Consistency of timeframes to apply for review of a deemed decision

130. This item repeals subsection 16(7) of the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 which provides the timeframe to apply for review of decisions taken to be made under subsection 16(4) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Tax Agent Services Act 2009

Item 38: Subsection 70-30(5) (definition of reviewable decision )

131. This item updates the definition of reviewable decision so that it refers to its meaning under the ART Act rather than its meaning under the AAT Act.

132. This amendment is technical in nature, and ensures subsection 70-30(5) of the Tax Agent Services Act 2009 continues to operate in substantively the same way in relation to the Tribunal.

Taxation Administration Act 1953

Item 39: Section 14ZQ

Inserting definition

133. This item inserts a definition of guidance and appeals panel, which has the same meaning as in the ART Act.

Item 40: Subsection 14ZZB(3)

Clarifying the ability of the ART President to allow a longer period to apply for guidance and appeals panel referral

134. This item amends subsection 14ZZB(3) of the Taxation Administration Act 1953 to clarify that the President of the Tribunal may allow a longer period for a party to make an application to refer a decision of the Tribunal to the guidance and appeals panel, as long as the request for more time is made before the period for making the application expires.

135. Section 125 of the ART Act provides that an application to refer a Tribunal decision to the guidance and appeals panel must be made within the period of 28 days after the Tribunal gives a statement of reasons for the decision to the parties, or such longer period as the President, in special circumstances, allows.

136. Existing subsection 14ZZB(3), as amended by Consequential Act 1, provides that the President of the Tribunal may only allow a longer period to make an application to refer a decision to the guidance and appeals panel if the period for making the application in section 125 of the ART Act has not expired. As currently drafted, subsection 14ZZB(3) may be interpreted as requiring the President to consider and make a decision on the request within that period.

137. Item 40 amends subsection 14ZZB(3) to provide that the President of the Tribunal may only allow a longer period to make an application to refer a Tribunal decision to the guidance and appeals panel if the request for a longer period is made before the period for making the application has expired. This clarifies that the request for an extension of time must be made before the period for making the application expires (that is, within 28 days of the Tribunal giving its reasons for decision), but allows the President to agree to the request after the period has expired.

138. This item is needed to ensure the President has a sufficient opportunity to consider and decide a request for more time if the request is made close to, or on, the final day of the application period.

Item 41: After subsection 14ZZB(7)

Operation or implementation of a decision after a person has applied for referral of a Tribunal decision to the guidance and appeals panel

139. This item inserts subsection 14ZZB(7A) to clarify the ability of the Tribunal under section 127 of the ART Act to stay the operation or implementation of a decision following an application to refer a decision to the guidance and appeals panel.

140. For general taxation matters, the standard provisions relating to the Tribunal's ability to make orders staying or otherwise affecting the operation or implementation of the original decision are disapplied to limit risks to tax revenue and the proper administration of the tax system (see subsections 14ZZB(5) and (7) of the Taxation Administration Act 1953). For small business taxation assessment decisions, the Tribunal's ability to make such orders under section 32 of the ART Act is made available (see subsection 14ZZB(6)).

141. This item inserts new subsection 14ZZB(7A) to ensure that that the same arrangements apply if a person has applied for referral of a Tribunal decision to the guidance and appeals panel. That is, the operation of the original tax decision cannot be stayed while the application is under review, except in relation to small business taxation assessments.

Item 42: At the end of section 14ZZL

Clarifying the ability of the ART President to allow a longer period to apply for guidance and appeals panel referral

142. This item is consequential to the amendment to subsection 14ZZB(3) of the Taxation Administration Act 1953.

143. Under subsection 14ZZL(2), if no appeal is lodged against the Tribunal's decision within the period for lodging an appeal, and no application to refer a decision of the Tribunal to the guidance and appeals panel is made within the period for making the application, the decision becomes final at the end of the period.

144. This item inserts new subsection (3) in section 14ZZL to clarify that for the purposes of determining when a decision becomes final, the period for making the application includes any extension allowed in accordance with subsection 14ZZB(3) and section 125 of the ART Act.

Part 3 - Finance

Digital ID Act 2024

Items 43 and 44: Section 140 (heading) and subsection 140(1)

Terminology changes

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

Item 45: Subsection 140(3)

Updating legislative references

146. This item updates a legislative reference to section 27(1) of the AAT Act to instead refer to the equivalent provision of the ART Act, section 17.

147. Consistent with section 27(1) of the AAT Act, under section 17 of the ART Act, any person whose interests are affected by a decision has standing to apply to the Tribunal for review of that decision. Subsection 140(3) of the Digital ID Act 2024 provides that, contrary to section 17 of the ART Act, an application to the Tribunal for review of a decision may be made only by, or on behalf of, an affected entity for the reviewable decision (as defined by section 137 of the Digital ID Act 2024). This reflects the nature of reviewable decisions under the Digital ID Act 2024 and limits who may apply for review to the Tribunal to entities directly affected by a reviewable decision, such as an entity on whom conditions are imposed by the Digital ID Regulator.

148. This amendment is technical in nature, and ensures subsection 140(3) of the Digital ID Act 2024 continues to operate in substantively the same way in relation to the Tribunal.

Part 4 - Defence

Defence Act 1903

Items 46 and 47: Section 115L (heading) and section 115L

Terminology changes

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

Part 5 - Health and Aged Care

Aged Care Act 1997

Items 48 and 49: After subsection 85-4(3) and subsection 85-4(4)

Ability to change a decision once a matter is referred to the guidance and appeal panel

150. These items amend section 85-4 of the Aged Care Act 1997 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Item 50: Clause 1 of Schedule 1

Inserting definitions

151. This item inserts definitions for guidance and appeals panel, and guidance and appeals panel application which have the same meaning as in the ART Act.

Aged Care (Transitional Provisions) Act 1997

Items 51 and 52: After subsection 85-4(3) and subsection 85-4(4)

Ability to change a decision once a matter is referred to the guidance and appeal panel

152. These items amend section 85-4 of the Aged Care (Transitional Provisions) Act 1997 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Item 53: Clause 1 of Schedule 1

Inserting definitions

153. This item inserts definitions for guidance and appeals panel, and guidance and appeals panel application which have the same meaning as in the ART Act.

Health Insurance Act 1973

Item 54: Subsection 3(1)

Inserting definitions

154. This item inserts definitions for guidance and appeals panel, and guidance and appeals panel application which have the same meaning as in the ART Act.

Items 55, 56 and 57: Subsection 124ZL(4), section 124ZN and at the end of section 124ZN

Ability to change a decision once a matter is referred to the guidance and appeal panel

155. These items amend sections 124ZL and 124ZN of the Health Insurance Act 1973 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Public Health (Tobacco and Other Products) Act 2023

Item 58: Section 8

Inserting definitions

156. This item inserts definitions of guidance and appeals panel and guidance and appeals panel application, which have the same meaning as in the ART Act.

Items 59, 60, 61 and 62: Subsection 142(10) (heading), subsection 142(10), subsection 147(4) (heading) and subsection 147(4)

Terminology changes

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

Item 63: Paragraphs 147(5)(a) and (b)

Conditions for publication of non-compliance information

158. This item amends subsection 147(5) of the Public Health (Tobacco and Other Products) Act 2023 to clarify when non-compliance information may be published in the circumstance of a reporting entity having made an application to the Tribunal.

159. Subsection 147(4) of the Public Health (Tobacco and Other Products) Act 2023 provides that applications may be made to the Tribunal for review of a decision by the Minister to publish non-compliance information about an entity. Subsection 147(5) provides that, if a reporting entity makes such an application, the Minister can only publish the non-compliance information if the Tribunal affirms or varies the Minister's decision or if the entity withdraws their application.

160. These amendments additionally allow the Minister to publish the non-compliance information if the Tribunal dismisses the application. They also account for circumstances where the Minister's decision is referred to the guidance and appeals panel.

161. Section 123 of the ART Act provides that if the Tribunal makes a decision, a person who was at any point a party to the proceeding in the Tribunal in which the decision was made may make an application ('the referral application') to the President to refer the decision to the guidance and appeals panel. These amendments provide that, in these circumstances, the Minister may only publish the non-compliance information if:

•

the president refuses to refer the reporting entity's referral application to the guidance and appeals panel

•

the reporting entity makes and then subsequently withdraws their referral application

•

the reporting entity does not make a referral application within the required timeframe, including within the time of any extensions given under section 125 of the ART Act

•

a referral application cannot be made as the decision has already been referred by the President under section 122 of the ART Act

•

the Tribunal is constituted for the purposes of the guidance and appeals panel proceeding, but the referral application is subsequently withdrawn by the person or the guidance and appeals panel review is dismissed by the Tribunal, or

•

the Tribunal is constituted for the purposes of the guidance and appeals panel proceeding, and the effect of the guidance and appeals panel decision is to publish the non-compliance information.

162. These amendments ensure that section 147 of the Public Health (Tobacco and Other Products) Act 2023 accounts for all the ways in which a review in the Tribunal may conclude. This ensures that the Minister is not prevented from publishing the non-compliance information based on a technicality.

Item 64: At the end of section 147

Inserting definition

163. This item inserts a definition of referral application which, for the purposes of section 147 of the Public Health (Tobacco and Other Products) Act 2023, means an application made under section 123 of the Act.

Part 6 - Education

A New Tax System (Family Assistance) (Administration) Act 1999

Item 65: Section 138A

Repealing provisions

164. This item repeals section 138A of the A New Tax System (Family Assistance) (Administration) Act 1999. Section 138A was inserted by Consequential Act 1 to disapply 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 section 85 of the ART Act).

165. Decisions about child care providers are currently subject to only one level of review. The effect of this item is to enable the Tribunal to continue to remit child care provider decisions to the decision-maker for reconsideration.

166. This amendment is technical in nature, and ensures the A New Tax System (Family Assistance) (Administration) Act 1999 continues to operate in substantively the same way in relation to the Tribunal.

Higher Education Funding Act 1988

Item 66: Section 3

Inserting definition

167. This item inserts definitions of guidance and appeals panel and guidance and appeals panel application, which have the same meaning as in the ART Act.

Items 67 and 68: After subsection 106MA(1) and subsection 106MA(2)

Ability to change a decision once a matter is referred to the guidance and appeal panel

168. These items amend section 106MA of the Higher Education Funding Act 1988 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Higher Education Support Act 2003

Items 69 and 70: After subsection 209-5(2) and subsection 209-5(3)

Ability to change a decision once a matter is referred to the guidance and appeal panel

169. These items amend section 209-5 of the Higher Education Support Act 2003 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Item 71: Subclause 1(1) of Schedule 1

Inserting definitions

170. This item inserts definitions of guidance and appeals panel and guidance and appeals panel application, which have the same meaning as in the ART Act.

Part 7 - Veterans' Affairs

Military Rehabilitation and Compensation Act 2004

Item 72: Subsection 5(1)

Inserting definitions

171. This item inserts definitions of guidance and appeals panel and guidance and appeals panel application, which have the same meaning as in the ART Act.

Items 73, 74, 75 and 76: Subsection 348(1), after subsection 348(1), after subsection 350(1) and subsection 350(2)

Ability to change a decision once a matter is referred to the guidance and appeal panel

172. These items amend sections 348 and 350 of the Military Rehabilitation and Compensation Act 2004 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Item 77: At the end of section 357

Commonwealth taken to be a party for the purposes of taxing costs

173. This item inserts new subsection 357(8) of the Military Rehabilitation and Compensation Act 2004 to clarify that the Commonwealth is taken to be a party to the proceeding before the Tribunal for the purposes of section 115 of the ART Act. Section 115 of the ART Act provides that the Tribunal may tax the costs of parties (on application by either party) where the Tribunal orders a party to pay another party's costs. The Tribunal may only make orders about costs where other legislation (creating reviewable decisions) permits it.

174. Section 357 of the Military Rehabilitation and Compensation Act 2004 provides that, in certain circumstances, the Tribunal may order that the Commonwealth pay the costs incurred by a claimant in relation to a proceeding. This amendment enables the Commonwealth to be considered a party to the proceeding for the purposes of taxing costs under section 115 of the ART Act.

Safety, Rehabilitation and Compensation (Defence-Related Claims) Act 1988

Item 78: Subsection 60(1)

Inserting definitions

175. This item inserts definitions of guidance and appeals panel and guidance and appeal panel application, which have the same meaning as in the ART Act.

Items 79 and 80: At the end of section 62 and after subsection 64(1)

Ability to change a decision once a matter is referred to the guidance and appeal panel

176. These items amend sections 62 and 64 of the Safety, Rehabilitation and Compensation (Defence-Related Claims) Act 1988 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Veterans' Entitlements Act 1986

Item 81: Section 12

Inserting definitions

177. This item inserts definitions of guidance and appeals panel and guidance and appeal panel application, which have the same meaning as in the ART Act.

Items 82 and 83: Subsection 31(2) and after subsection 31(2)

Ability to change a decision once a matter is referred to the guidance and appeal panel

178. These items amend section 31 of the VE Act to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Item 84: At the end of section 106

Authorising contrary intention prescribed by a legislative instrument

179. This item inserts new subsection 106(3) of the VE Act which provides that legislative instruments made under subsection 106(1) can contain provisions that are contrary to the operation of section 18 of the ART Act (timeframe for applying to the Tribunal for review of a decision).

180. Section 5 of the ART Act provides that other Acts and instruments may modify or disapply provisions contained in the ART Act if they contain a contrary intention. A legislative instrument can only disapply or modify the application of a provision of the ART Act if the Act under which the instrument is made authorises it to do so.

181. The Veterans' Entitlements (Special Assistance - Motorcycle Purchase) Regulations 2001 modify the ART Act by providing parties with 3 months to make an application to the Tribunal. The effect of inserting new subsection 106(3) is to enable these, and other legislative instruments made under subsection 106(1), to contain provisions that apply contrary to the operation of section 18 of the ART Act (where needed to respond to the unique features of a particular caseload).

182. This amendment is technical in nature, and ensures section 106 of the VE Act continues to operate in substantively the same way in relation to the Tribunal.

Item 85: Subsection 177(1)

Updating legislative references

183. This item amends subsection 177(1) of the VE Act to replace an incorrect legislative reference to section 107 of the ART Act (inserted by Consequential Act 1), and substitute it with the correct reference, section 108 of the ART Act.

184. Section 177 of the VE Act modifies the usual date of effect for certain determinations made by the Tribunal when reviewing decisions about pensions and seniors' health cards. The approach aligns with the backdating provisions applicable to an original decision under the VE Act for maximum benefit, and prevents the Tribunal from setting a date of effect that a decision-maker could not. Under the existing law, it operates in addition to provisions of section 43 of the AAT Act.

185. The amendment provides that subsection 177(1) of the VE Act, as amended, clarifies that the dates of effect set out in section 177 apply in addition to, rather than contrary to, section 108 of the ART Act.

186. Section 108 of the ART Act is equivalent to section 43(6) of the AAT Act. This amendment is technical in nature, and ensures section 177 of the VE Act continues to operate in substantively the same way in relation to the Tribunal.

Part 8 - Climate Change, Energy, the Environment and Water

Great Barrier Reef Marine Park Act 1975

Item 86: Subsection 39M(2)

Consistency of timeframes to apply for review of a deemed decision

187. This item repeals subsection 39M(2) of the Great Barrier Reef Marine Park Act 1975 which provides the timeframe to apply for review of decisions taken to be made under subsection 39L(4) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Part 9 - Industry, Science and Resources

Industry Research and Development Act 1986

Item 87: Subsection 30E(3)

Consistency of timeframes to apply for review of a deemed decision

188. This item repeals subsection 30E(3) of the Industry Research and Development Act 1986 which provides the timeframe to apply for review of decisions taken to be made under subsection 30D(3) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Part 10 - Employment and Workplace Relations

Australian Apprenticeship Support Loans Act 2014

Item 88: Section 5

Inserting definitions

189. This item inserts definitions of guidance and appeals panel and guidance and appeal panel application, which have the same meaning as in the ART Act.

Items 89 and 90: After subsection 81(2) and subsection 81(3)

Ability to change a decision once a matter is referred to the guidance and appeal panel

190. These items amend section 81 of the Australian Apprenticeship Support Loans Act 2014 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Fair Entitlements Guarantee Act 2012

Item 91: Section 5

Inserting definitions

191. This item inserts definitions of guidance and appeals panel and guidance and appeal panel application, which have the same meaning as in the ART Act.

Items 92 and 93: After subsection 37(2) and subsection 37(4)

Ability to change a decision once a matter is referred to the guidance and appeal panel

192. These items amend section 40 of the Fair Entitlements Guarantee Act 2012 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Higher Education Support Act 2003

Items 94 and 95: After subclause 95(2) of Schedule 1A and subclause 95(3) of Schedule 1A

Ability to change a decision once a matter is referred to the guidance and appeal panel

193. These items amend clause 95 of the Higher Education Support Act 2003 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Item 96: Subclause 1(1) of Schedule 1

Inserting definitions

194. This item inserts definitions of guidance and appeals panel and guidance and appeal panel application, which have the same meaning as in the ART Act.

Safety, Rehabilitation and Compensation Act 1988

Item 97: Subsection 60(1)

Inserting definitions

195. This item inserts definitions of guidance and appeals panel and guidance and appeal panel application, which have the same meaning as in the ART Act.

Items 98 and 99: At the end of section 62 and after subsection 64(1)

Ability to change a decision once a matter is referred to the guidance and appeal panel

196. These items amend sections 62 and 64 of the Safety, Rehabilitation and Compensation Act 1988 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Seafarers Rehabilitation and Compensation Act 1992

Item 100: Subsection 76(1)

Inserting definitions

197. This item inserts definitions of guidance and appeals panel and guidance and appeal panel application, which have the same meaning as in the ART Act.

Items 101 and 102: After subsection 78(6) and after subsection 88(1)

Ability to change a decision once a matter is referred to the guidance and appeal panel

198. These items amend sections 78 and 88 of the Seafarers Rehabilitation and Compensation Act 1992 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

VET Student Loans Act 2016

Item 103: Section 6

Inserting definitions

199. This item inserts definitions of guidance and appeals panel and guidance and appeal panel application, which have the same meaning as in the ART Act.

Items 104 and 105: After subsection 77(2) and subsection 77(3)

Ability to change a decision once a matter is referred to the guidance and appeal panel

200. These items amend section 77 of the VET Student Loans Act 2016 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Part 11 - Social Services

Student Assistance Act 1973

Items 106 and 107: Subsections 304(2) and 304(5)

Removing time limit to apply for review of an ABSTUDY or AIC debt decision

201. These items repeal subsection 304(2) and amend subsection (5) of the Student Assistance Act 1973 to provide that there is no time limit to seek internal review in relation to ABSTUDY or AIC debt decisions.

202. The Student Assistance Act 1973 provides for student start-up loans under the ABSTUDY Scheme and payments under the AIC Scheme, including the recovery of debts in relation to such payments. Subsection 304(1) currently allows a person affected by a debt decision to apply for internal review of that decision within three months after the decision was made.

203. These items will remove the three-month time limit to apply for internal review of a debt decision under the Student Assistance Act 1973. This will ensure applications to seek a review for a debt decision in relation to an ABSTUDY or AIC payment align with other social security payments, which do not impose a time limit for seeking internal review of a debt decision.

Items 108, 109 and 110: Subsection 308D(3), section 308H and at the end of section 308H

Ability to change a decision once a matter is referred to the guidance and appeal panel

204. These items amend subsection 308D and 308H of the Student Assistance Act 1973 to provide that if the President of the Tribunal refers the application to the guidance and appeals panel under section 122 of the ART Act, section 31 of the ART Act applies. This means the decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Item 111: Section 312 (heading)

Removing time limit to apply for review of an ABSTUDY or AIC debt decision

205. This item amends the heading of section 312 to provide there is no time limit for application for Tribunal review, consequential to the amendment in the following item.

Item 112: Subsections 312(1) and (2)

Removing time limit to apply for review of an ABSTUDY or AIC debt decision

206. This item amends subsections 312(1) and (2) of the Student Assistance Act 1973 to provide that there is no time limit to seek review in the Tribunal in relation to ABSTUDY and AIC debt decision.

207. The Student Assistance Act 1973 provides for student start-up loans under the ABSTUDY Scheme and payments under the AIC Scheme, including the recovery of debts in relation to such payments. Section 311 allows a person to apply to the Tribunal for review of a decision that has been internally reviewed. Section 312 currently provides an application for review in the Tribunal must be made within three months after the debt decision was internally reviewed.

208. This item will disapply section 18 of the ART Act (which deals with when applications for review may be made) and remove the three-month time limit to apply for review in the Tribunal of a debt decision under the Student Assistance Act 1973. The effect of these amendments will be to ensure applications to seek a review for a debt decision in relation to an ABSTUDY or AIC payment align with other social security payments, which do not impose a time limit for seeking review of a debt decision.

Part 12 - Home Affairs

Migration Act 1958

Item 113: At the end of section 140GB

Notices of decision

209. This item inserts new subsection 140GB(4A) into the Migration Act, which relates to decisions made under section 140GB. Section 140GB of the Migration Act provides for when the Minister must approve an approved work sponsor's nomination of a visa applicant or a proposed occupation, program or activity. Subsection 140GB(3) enables the Migration Regulations to establish a process for the Minister to approve a person's nomination.

210. New subsection 140GB(4A) will provide that if the Migration Regulations provide for notification by the Minister of a decision whether or not to approve a person's nomination, sections 267 and 268 of the ART Act do not apply to the decision. This will ensure that there are not two different sets of requirements that apply simultaneously.

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

212. Section 268 of the ART Act provides that a person affected by a reviewable decision may request reasons for that decision from the decision-maker. Section 268 is disapplied in relation to decisions under section 140GB of the Migration Act as regulation 2.74 of the Migration Regulations requires (among other things) the decision-maker to provide a statement of reasons for the refusal if the nomination is refused.

Item 114: After paragraph 336P(2)(i)

213. Clarifying availability of dismissal powers of the Tribunal for review of a reviewable migration or reviewable protection decision This item disapplies sections 97 and 98 of the ART Act in relation to a review of reviewable migration decisions and reviewable protection decisions under Part 5 of the Migration Act. Section 97 of the ART Act provides the Tribunal must dismiss an application if it is satisfied the decision is not a reviewable decision. Section 98 provides the Tribunal may dismiss an application if a fee payable in respect of the application is not paid by the time prescribed in the rules.

214. The intent of disapplying sections 97 and 98 of the ART Act is to clarify the framework for making applications to the Tribunal under Part 5 of the Migration Act. This amendment, together with the related amendments to sections 347 and 348 would put beyond doubt that the Tribunal does not have jurisdiction in relation to an application that is not properly made and must not review the application. The dismissal powers in sections 97 and 98 of the ART Act do not apply to these applications as applications that are not properly made, including in relation to whether a fee has been paid, are not able to be considered by the Tribunal and can therefore be dismissed.

215. New subsection 347(3) and paragraph 348(3)(c) enable the Migration Regulations to continue to prescribe fees for reviewable migration and protection decisions. The fee framework for reviewable migration and protection decisions is managed through the Migration Act and Migration Regulations with distinct settings that are distinguished from the intent of section 98 of the ART Act. This allows the administration of the complex visa framework with an appropriate degree of transparency, certainty and consistency.

Item 115: Subsections 347(2) and (3)

Clarifying requirements to apply to the Tribunal for review of a reviewable migration or reviewable protection decision

216. This item repeals and substitutes subsections 347(2) and (3) of the Migration Act to clarify the existing law. Section 347 deals with making an application to the Tribunal for review of a reviewable migration decision or a reviewable protection decision. These amendments clarify what constitutes a properly made application for reviewable migration and protection decisions. These amendments, along with amendments to section 348 below, are intended to more accurately reflect requirements for when fees are payable for reviewable migration decisions and reviewable protection decisions.

217. New subsection 347(2) provides that the application must include the prescribed information (if any) and be accompanied by the prescribed documents (if any). Paragraphs 347(2)(a) and (b) sets out the timeframes for providing these prescribed information and documents, being seven days for those in immigration detention, and 28 days otherwise.

218. New subsection 347(3) sets out the timeframes for when fees are payable (if any) for reviewable migration decisions and reviewable protection decisions. Paragraph 347(3)(a) provides that any prescribed fees must be paid for an application for review of a reviewable migration decision within the specified period in subsection 347(2) (see paragraph 9 above). Paragraph 347(3)(b) provides that any prescribed fees must be paid for an application for review of a reviewable protection decision within the prescribed period. 'Prescribed' in these amendments (and those below) refers to the fact that the specific requirements are contained in the Migration Regulations.

219. To be properly made, amongst other things, applications to the Tribunal for review of reviewable migration decisions are required to be accompanied by the prescribed fee (if any), which must be paid within the time period specified in subsection 347(2).

220. Applications to the Tribunal for review of reviewable protection decisions require the prescribed fee (if any) to be paid within the time period prescribed by the Migration Regulations, which may end after the decision has been reviewed by the Tribunal. Currently, the Migration Regulations prescribe that any fee for reviews of reviewable protection decisions only becomes payable seven days after notification from the Tribunal of its decision (see regulation 4.31B of the Migration Regulations).

221. These amendments clarify existing requirements, under the Migration Act and Regulations, for making an application to the Tribunal for review of certain migration decisions. The legislative note to subsection 347(3) provides that if these requirements are not met, in accordance with section 348 (as outlined below) the Tribunal must not review a decision.

222. The effect of these amendments is to ensure users are aware of and understand the requirements to properly make an application to the Tribunal for review of a decision under Part 5 of the Migration Act.

Items 116 and 117: Subsection 347(4) and subsection 347(7)

Clarifying requirements to apply to the Tribunal for review of a reviewable migration or reviewable protection decision

223. These items substitute references to the relevant subsections of section 347 of the Migration Act. These amendments are consequential to the amendment outlined above to subsections 347(2) and (3) to clarify the requirements for a properly made application for a review of a reviewable migration decision or reviewable protection decision.

Item 118: Subsection 348(1) (note)

Clarifying requirements to apply to the Tribunal for review of a reviewable migration or reviewable protection decision

224. This item repeals the note to subsection 348(1), which (prior to these amendments) provides the Tribunal has no jurisdiction to review a decision if the application for review is not properly made.

225. This amendment is consequential to the amendment to insert new subsections 348(2) and (3) outlined below that provide the Tribunal must not review a decision if the application is not properly made, and the requirements for making a properly made application.

Item 119: Subsection 348(2)

Clarifying requirements to apply to the Tribunal for review of a reviewable migration or reviewable protection decision

226. This item repeals and replaces subsection 348(2) of the Migration Act to explicitly state that the Tribunal must not review an application made under sections 347 and 347A of the Migration Act that is not properly made. The effect of this amendment is that the Tribunal will not have jurisdiction to review an application made under Part 5 of the Migration Act if it is not properly made. This sits alongside existing subsection 348(1) which provides that the Tribunal must review an application which has been properly made. Together, these provisions put beyond doubt how the Tribunal is to deal with applications for reviewable migration decisions and reviewable protection decisions.

227. The item also inserts new subsection 348(3) which details what constitutes a properly made application for reviewable migration decisions and reviewable protection decisions. New subsection 348(3) provides that an application for review under sections 347 and 347A is properly made if, and only if:

•

it is made within the period specified in subsection 347(2)

•

it includes any information and is accompanied by any documents prescribed for the application under subsection 347(2) and provided within the period specified in that subsection,

•

it is accompanied by any fee prescribed for the application (if the application is for review of a reviewable migration decision), under subsection 347(3), and within the period required by subsection 347(2), and

•

it is made by a person with standing to make the application.

228. Any application that does not contain each of these elements is not an application that has been properly made, which means that the Tribunal must not review the decision (per new subsection 348(2)). These amendments provide certainty for the Tribunal and applicants in relation to the requirements to apply for review of a reviewable migration or protection decision.

229. Subsection 348(4) provides that the Tribunal must not review, or continue to review, a reviewable migration decision or a reviewable protection decision in relation to which the Minister has issued a conclusive certificate under section 339 of the Migration Act. This replicates the existing law.

Item 120: Subsection 348A(1)

Removing administrative burdens to ensure decision-makers participate in GAP proceedings

230. This item amends subsection 348A(1) of the Migration Act to provide that the Minister is taken to be a non-participating party in proceedings before the Tribunal, except in relation to proceedings before the guidance and appeals panel.

231. Existing subsection 348A(1), as amended by Consequential Act 1, provides that the Minister is taken to be a non-participating party in Tribunal review proceedings under section 61 of the ART Act. Section 61 of the ART Act prescribes conditions where a decision-maker who has elected not to participate in a proceeding is a non-participating party under the ART Act. This includes that the proceeding must not be a guidance and appeals panel proceeding, reflecting the policy intention that guidance and appeals panel proceedings should always be contested to ensure that matters raising issues of significance to administrative law are properly ventilated.

232. The Migration Act deems the decision-maker not to be a participating party in all circumstances, displacing the requirements of section 61. As a result, if the President were to refer a matter to the guidance and appeals panel under section 122 of the ART Act, the Minister would continue to be a non-participating party until the Tribunal ordered otherwise under section 63(2) of the ART Act. This would be inconsistent with the position that a decision-maker should always participate in proceedings before the guidance and appeals panel, which is the arrangement in relation to all other types of reviews.

233. The amendment ensures that the Tribunal has the assistance of the decision-maker when an application is referred to the guidance and appeals panel by the President under section 122 of the ART Act on the basis that it raises an issue of significance to administrative decision-making. Under sections 109 and 110 of the ART Act, a decision of the guidance and appeals panel that has been referred because it raises an issue of significance becomes a guidance decision to which Tribunal members making similar decisions are required to have regard. Given the implications for how decision-makers should act in relation to those matters in future, it is important that the decision-maker participates in these reviews.

Part 13 - Agriculture, Fisheries and Forestry

Primary Industries Levies and Charges Collection Act 2024

Item 121: Subsection 48(8) (note)

Updating legislative references

234. This item updates the note to subsection 48(8), replacing the legislative reference to section 27A of the AAT Act with a reference to the equivalent provision in the ART Act. Consistent with section 27A of the AAT Act, section 266 of the ART Act 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.

235. Section 48 of the Primary Industries Levies and Charges Collection Act 2024 provides a mechanism for internal review and reconsideration of a decision by the Secretary of the Department. This amendment is technical in nature and ensures the note to subsection 48(8) remains accurate.

Items 122 and 123: Section 49 (heading) and section 49

Terminology changes

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

237. Section 49 of the Primary Industries Levies and Charges Collection Act 2024 sets out which decisions a person may apply to have reviewed by the Tribunal. These items make technical amendments that do not otherwise affect the operation of the Act.

Primary Industries Levies and Charges Disbursement Act 2024

Item 124: Subsection 84(8) (note)

Updating legislative references

238. This item updates the note to subsection 84(8), replacing the legislative reference to section 27A of the AAT Act with a reference to the equivalent provision in the ART Act. Consistent with section 27A of the AAT Act, section 266 of the ART Act 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.

239. Section 84 of the Primary Industries Levies and Charges Disbursement Act 2024 provides for internal reconsideration of a decision by the Secretary of the Department to refuse to grant a person an approval. This amendment is technical in nature and ensures the note to subsection 84(8) remains accurate.

Items 125 and 126: Section 85 (heading) and subsection 85(1)

Terminology changes

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

241. Section 85 of the Primary Industries Levies and Charges Disbursement Act 2024 provides for the types of decisions that are reviewable by the Tribunal. These items make technical amendments that do not otherwise affect the operation of the Act.

Item 127: Subsection 85(3)

Updating legislative references

242. This item updates a legislative reference to subsection 27(1) of the AAT Act to instead refer to the equivalent provision of the ART Act, section 17.

243. Consistent with section 27(1) of the AAT Act, under section 17 of the ART Act, any person whose interests are affected by a decision has standing to apply to the Tribunal for review of that decision. The effect of subsection 85(3) is that an application under subsection 85(1) in relation to the relevant decision under subsection 40(1) by the Minister to revoke a declaration of a body as a recipient body may only be made by the body covered by the revocation. The body covered by the revocation would have a special interest in relation to the review of the decision for the relevant revocation in subsection 40(1).

244. This amendment is technical in nature, and ensures subsection 85(3) continues to operate in substantively the same way in relation to the Tribunal.

Part 14 - Infrastructure, Transport, Regional Development, Communications and the Arts

New Vehicle Standards Efficiency Act 2024

Items 128, 129 and 130: Paragraph 69(2)(i), paragraph 85(c) and section 89

Terminology changes

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

SCHEDULE 3 - CONTINGENT AMENDMENTS

OUTLINE

246. This Schedule contains amendments to the following Acts, which are contingent on the passage and commencement of other pieces of legislation:

Part 1 - Treasury portfolio

•

Help to Buy Act 2024

•

Competition and Consumer Act 2010

Part 2 - Defence portfolio

•

Australian Naval Nuclear Power Safety Bill 2023

Part 3 - Veterans' Affairs portfolio

•

Military Rehabilitation and Compensation Act 2004

•

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988

•

Veterans' Entitlements Act 1986

Part 4 - Social Services portfolio

•

National Disability Insurance Scheme Act 2013

Part 5 - Agriculture, Fisheries and Forestry Portfolio

•

Agriculture (Biosecurity Protection) Levies and Charges Collection Bill 2024

General terminology changes

247. A number 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 relevant provisions continue to operate in substantively the same way in relation to the new Tribunal.

AMENDMENTS

Part 1 - Treasury

Division 1 - Help to Buy Act 2024

Help to Buy Act 2024

Items 1 and 2: Section 43 (heading) and section 43

248. These items make amendments that are contingent on the commencement of the Help to Buy Bill 2023. These items amend terminology. See explanation of general terminology changes above.

249. If enacted, clause 43 of the Help to Buy Bill 2023 will enable prescribed decisions of Housing Australia under the Bill to be reviewed by the Tribunal.

250. These items make technical amendments that do not otherwise affect the operation of the Help to Buy Bill 2023.

Division 2 - Schedule 1 to the Treasury Laws Amendment (Consumer Data Right) Act 2024

Competition and Consumer Act 2010

Items 3, 4, 5 and 6: Subsection 56BH(4), subsection 56BH(4) (note 1), subsection 56BHA(5) and subsection 56BHA(5) (note)

251. These items make amendments that are contingent on the commencement of the Treasury Laws Amendment (Consumer Data Right) Bill 2022. These items amend terminology. See explanation of general terminology changes above.

252. If enacted, the Treasury Laws Amendment (Consumer Data Right) Bill 2022 will amend the Competition and Consumer Act 2010. Subsection 56BH(4) of this Act, as amended, provides that the Competition and Consumer (Consumer Data Right) Rules 2020 must permit an application to be made to the Tribunal for review of both a decision, and also a refusal to make a decision, to vary, suspend, or revoke an accreditation. Subsection 56BH(5), as amended, provides for a similar requirement, but with regard to decisions to vary, suspend, or revoke the approval of a voluntary action service provider.

253. These items make technical amendments that do not otherwise affect the operation of the Competition and Consumer Act 2010.

Part 2 - Defence

Australian Naval Nuclear Power Safety Act 2024

Items 7, 8, 9 and 10: Subsection 38(9) (heading), subsection 38(9), subsection 144(6) (heading) and subsection 144(6)

Terminology changes

254. These items make amendments that are contingent on the commencement of the Australian Naval Nuclear Power Safety Bill 2023. These items amend terminology. See explanation of general terminology changes above.

255. If enacted, subclauses 38(9) and 144(6) provide for the types of decisions that are reviewable by the Tribunal. These items make technical amendments that do not otherwise affect the operation of the Australian Naval Nuclear Power Safety Bill 2023. Part 3 - Veterans' Affairs

Military Rehabilitation and Compensation Act 2004

Item 11: Subparagraph 353C(10)(b)(i)

Terminology changes

256. This item makes amendments that are contingent on the commencement of the Veterans' Entitlements, Treatment and Support (Simplification and Harmonisation) Bill 2024. This item amends terminology. See explanation of general terminology changes above.

257. If enacted, the Veterans' Entitlements, Treatment and Support (Simplification and Harmonisation) Bill 2024 will amend the Military Rehabilitation and Compensation Act 2004. New subsection 353C(10) of this Act, as amended, sets out the notice obligations of the Veterans' Review Board to inform review parties of their right of appeal to the Tribunal.

258. This item makes technical amendments that do not otherwise affect the operation of the Military Rehabilitation and Compensation Act 2004.

Item 12: Subparagraph 353C(10)(b)(ii)

Updating legislative references

259. This item makes amendments to the Military Rehabilitation and Compensation Act 2004 that are contingent on the commencement of the Veterans' Entitlements, Treatment and Support (Simplification and Harmonisation) Bill 2024.

260. This item repeals and substitutes subparagraph 353C(10)(b)(ii) of the Military Rehabilitation and Compensation Act 2004 to update legislative references to section 28 and subsection 28(4) of the AAT Act with a reference to the equivalent provision in the ART Act, section 268.

261. Consistent with section 28 of the AAT Act, under section 268 of the ART Act, 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.

262. 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 Act, the decision-maker may refuse the request if a statement of reasons has already been provided for the decision.

263. As amended, subparagraph 353C(10)(b)(ii) of the Military Rehabilitation and Compensation Act 2004 requires that notice of certain decisions under the Act include a statement that a party may request a statement of reasons for the decision.

264. This item makes technical amendments that do not otherwise affect the operation of the Military Rehabilitation and Compensation Act 2004.

Safety, Rehabilitation and Compensation (Defence related Claims) Act 1988

Item 13: Subsection 62(4) (note)

Terminology changes

265. This item makes amendments that are contingent on the commencement of the Veterans' Entitlements, Treatment and Support (Simplification and Harmonisation) Bill 2024. This item amends terminology. See explanation of general terminology changes above.

266. If enacted, the Veterans' Entitlements, Treatment and Support (Simplification and Harmonisation) Bill 2024 will amend the Safety, Rehabilitation and Compensation (Defence related Claims) Act 1988. The note to subsection 62(4) of this Act, as amended, provides that a determination by the Veterans' Review Board is reviewable by the Tribunal.

267. This amendment is technical in nature and ensures the note remains accurate.

Veterans' Entitlements Act 1986

Items 14 and 15: Subsection 134(2) (note) and subsection 174(1) (note)

Terminology changes

268. These items make amendments that are contingent on the commencement of the Veterans' Entitlements, Treatment and Support (Simplification and Harmonisation) Bill 2024. These items amend terminology. See explanation of general terminology changes above.

269. If enacted, the Veterans' Entitlements, Treatment and Support (Simplification and Harmonisation) Bill 2024 will amend the VE Act. The notes to subsections 134(2) and 174(1) of this Act, as amended, provide that a determination by the Veterans' Review Board is reviewable by the Tribunal.

270. These amendments are technical in nature and ensures the notes remain accurate.

Item 16: Subsection 176(1)

Repealing provisions no longer necessary

271. This item makes amendments that are contingent on the commencement of the Veterans' Entitlements, Treatment and Support (Simplification and Harmonisation) Bill 2024.

272. This item repeals subsection 176(1) of the VE Act. Consequential Act 1 amended subsection 176(1) to reflect updated terminology and to clarify the meaning of the term 'decision-maker' where it is used in the ART Act.

273. If enacted, the Veterans' Entitlements, Treatment and Support (Simplification and Harmonisation) Bill 2024 will make amendments that alter what constitutes a reviewable decision under the VE Act. As a result of these amendments, subsection 176(1) will be made redundant and can be repealed.

Item 17: Subsection 176(3)

Updating legislative references

274. This item makes amendments that are contingent on the commencement of the Veterans' Entitlements, Treatment and Support (Simplification and Harmonisation) Bill 2024. If enacted, the Veterans' Entitlements, Treatment and Support (Simplification and Harmonisation) Bill 2024 will amend the VE Act.

275. This item updates a legislative reference to section 28 of the AAT Act with a reference to section 268 of the ART Act. Consistent with section 28 of the AAT Act, under section 268 of the ART Act, 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.

276. Subsection 176(3) of the VE Act, as amended, disallows persons from requesting reasons from the decision-maker for specified reviewable decisions, where the relevant notification provisions of the VE Act are met, and a copy of the decision and relevant statements have been given to the person.

277. This item makes technical amendments that do not otherwise affect the operation of the VE Act.

Part 4 - Social Services

National Disability Insurance Scheme Act 2024

Item 18: Subsection 32L(7) (note)

Terminology changes

278. This item makes an amendment that is contingent on the commencement of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024. This item amends terminology. See explanation of general terminology changes above.

279. Section 32L of the National Disability Insurance Scheme Act 2024 relates to assessments of participants' need for supports. Subsection 32L(7) requires the Chief Executive Officer of the National Disability Insurance Agency (the CEO) to consider whether a replacement needs assessment report should be undertaken when deciding whether to approve a participant's statement of participant supports. If enacted, the note to subsection 32L(7) provides that the Tribunal has all the powers of the CEO when reviewing a decision, and must arrange a replacement needs assessment if they are satisfied it should be done.

280. This amendment is technical in nature and ensures the note remains accurate.

Part 5 - Agriculture, Fisheries and Forestry

Agriculture (Biosecurity Protection) Levies and Charges Act 2024

Items 19 and 20: Section 44 (heading) and Section 44

Terminology changes

281. These items make amendments that are contingent on the commencement of the Agriculture (Biosecurity Protection) Levies and Charges Bill 2024. These items amend terminology. See explanation of general terminology changes above.

282. If enacted, clause 44 of the Agriculture (Biosecurity Protection) Levies and Charges Bill 2024 will provide for the types of decisions that are reviewable by the Tribunal. These items make technical amendments that do not otherwise affect the operation of the Agriculture (Biosecurity Protection) Levies and Charges Bill 2024.

SCHEDULE 4 - AMENDMENT OF THE ADMINISTRATIVE REVIEW TRIBUNAL ACT 2024

OUTLINE

283. This Schedule contains amendments to the ART Act.

AMENDMENTS

Item 1: Section 4 (subparagraph (b)(i) of the definition of exempt security record decision )

Terminology changes

284. This item updates the definition of exempt security record decision in the ART Act to mirror the change made by the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 3) Act 2024 to the AAT Act.

285. The National Security Amendment (Comprehensive Review and Other Measures No. 3) Act 2024 inserts new categories of exempt records into section 33 of the Archives Act. Under new subsections 33(4A) and 33(4C) of the Archives Act, a Commonwealth record is an exempt record if it contains information or matter that identifies a current or former ASIO or ASIS employee, affiliate or agent, or from which the identity of such a person could reasonably be inferred, or that could reasonably lead to the identify of such person being established, and the information or matter has not been lawfully been made public by means of broadcasting or reporting proceedings of Parliament.

286. This item amends the definition of exempt security record decision in the ART Act to insert references to new subsections 33(4A) and 33(4C). This will ensure that review of a decision of the National Archives of Australia under the Archives Act relating to records that identify ASIO or ASIS employees, affiliates and agents are considered by the Intelligence and Security jurisdictional area. This will ensure the identity of current and former ASIO employees, ASIO affiliates, staff members of ASIS and agents of ASIS that are included in the Commonwealth records are protected from public access.

Item 2: Section 25

Practice directions can extend timeframe to provide documents

287. This item amends section 25 of the ART Act to provide that practice directions can specify an alternative timeframe for decision-makers to provide the Tribunal with additional documents.

288. Currently, section 25 of the ART Act provides that where a decision-maker comes into possession or control of a document relevant to a review, and the document has not been provided to the Tribunal, the decision-maker must provide it to the Tribunal within 28 days.

289. This amendment clarifies that practice directions can extend the time for providing documents. The amendment ensures that the Tribunal retains control over the production of documents. For some matters, it may be more efficient for the Tribunal to set a specific date for the production of additional documents (for example, 2 weeks before a final hearing), rather than continuing to receive materials before a hearing has been scheduled.

Item 3: Paragraph 84(2)(b)

Standing to continue proceeding where original applicant has died, become bankrupt, is wound up, ceases to exist, or becomes subject to any form of liquidation administration

290. This item repeals and substitutes paragraph 84(2)(b) to provide that only a person who would have been entitled to apply for review of a decision at the time the substantive application was made may apply under clause 84(2) to continue the application where the original applicant cannot continue the proceeding due to death, bankruptcy, winding up, liquidation or administration.

291. Section 17 of the ART Act provides the general rule that a person whose interests are affected by a decision may apply to the Tribunal for review of that decision. Some Commonwealth legislation modifies this rule by setting out who may apply to the Tribunal for review of a decision. Where legislation limits who can bring an application for review of a decision, it is intended that only persons who originally had standing to apply for review of the substantive decision may apply to continue the application (in addition to the persons mentioned in paragraph 84(2)(a)).

292. New paragraph 84(2)(b) ensures that section 84(2) does not operate to expand the category of persons able to continue an application where modified standing rules have narrowed the general standing rule under section 17 of the ART Act.

Item 4: After subsection 94(3)

Clarifying meaning of question of law

293. This item inserts new subsection 94(3A) of the ART Act which clarifies that whether information or a document should be disclosed, or a question should be answered, are questions of law.

294. This is a technical amendment to ensure the Court has jurisdiction in relation to appeals lodged under section 172 in relation to a public interest decision or referral of a question of law under section 185.

295. Under Division 7 of Part 4 of the ART Act, the Attorney-General may certify that disclosure of certain information or the answering of a question in a proceeding would be contrary to the public interest. In certain circumstances, the Tribunal may decide that the information should be disclosed or the question answered (known as a public interest decision). A person may appeal from a public interest decision or the President may refer the question to the Federal Court of Australia. The effect of this amendment is to put beyond doubt the court's jurisdiction in relation to these appeals and referrals. This maintains existing arrangements under the AAT Act.

Item 5: After subsection 174(2)

Pausing timeframe to appeal to the Federal Court of Australia over the holiday period

296. This item inserts new subsection 174(2A) of the ART Act which provides that the period between 24 December and 14 January is excluded from the calculation of the 28-day period from which a party can appeal a decision of the Tribunal to the Federal Court of Australia. This is consistent with arrangements under the Federal Court Rules 2011, which similarly excludes this date range when calculating timeframes in proceedings in the Federal Court of Australia.

297. New subsection 174(2A) is in recognition of the practical difficulties and potential unfairness which may adversely impacts parties where the Tribunal issues a decision in late December. The effect of this amendment is to enable parties to obtain legal advice on the process, procedure and prospects of an appeal, before the expiration of the timeframe for appeal.

Item 6: At the end of section 278

Delegation of the Attorney-General's power to authorise the payment of costs and to grant legal or financial assistance

298. This item inserts new subsection 278(4) to provide that the delegation power in section 278 of the ART Act does not affect or limit the Attorney-General's ability to delegate powers in sections 59 and 294 of the ART Act (to authorise the payment of costs or grant legal or financial assistance), in accordance with section 17(2) of the Law Officers Act. The amendment ensures that the delegation power in section 278 of the ART Act, which is more limited than the Attorney-General's usual delegation power under the Law Officers Act, does not restrict the Attorney-General from making these existing delegations.

299. Section 278 of the ART Act allows the Minister responsible for administering the ART Act to delegate functions or powers in the ART Act to the Secretary of the Department or the President of the Tribunal.

300. Section 17(2) of the Law Officers Act allows the Attorney-General to delegate functions and powers by written instrument to the Secretary of the department or other persons holding or performing the duties of the office specified in the instrument of delegation.

301. Under the ART Act, the Attorney-General may become a party to a proceeding in the Tribunal by giving written notice to the Tribunal (subsection 59(1)). Subsection 59(3) provides that the Attorney-General may authorise the Commonwealth to pay the costs that another party reasonably incurs as a result of the Attorney-General being a party to the proceeding. The Attorney-General may also grant a person legal or financial assistance in relation to Tribunal proceedings in accordance with section 294 of the ART Act.

302. Sections 59 and 294 of the ART Act expressly repose powers in the 'Attorney-General', rather than the 'Minister', reflecting an intention that these legal assistance functions should remain reposed in the Attorney-General, even if portfolio responsibility for the ART Act is moved out of the Attorney-General's portfolio.

303. To ensure the efficient and effective operation of the legal assistance framework, it is expected that the Attorney-General's power to authorise the payment of costs or grant legal or financial assistance under sections 59 and 294 of the ART Act will need to be delegated to certain officers in the department at the executive level and above.

304. The amendment is necessary to ensure that the Attorney-General may delegate powers under sections 59 and 294 of the ART Act to relevant executive and senior executive level officers in the department, since section 278 of the ART Act only permits delegation to the Secretary or President of the Tribunal. This will support the effective operation of the legal assistance framework, including in the event that portfolio responsibility for the ART Act is moved out of the Attorney-General's portfolio.

Items 7 and 8: Subsection 284(1) (table item 13) and subsection 285(1) (table items 26 to 28)

Removing delegation power

305. These items remove item 13 of the table in section 284 and items 26, 27 and 28 of the table in section 285.

306. The ART Act currently enables the President to authorise members and registrars to exercise a wide range of powers and functions under Part 6, which relates to the Intelligence and Security jurisdictional area. These powers involve high levels of sensitivity, including making and recording findings and communicating decisions.

307. The effect of these amendments is to prevent the President from authorising members to perform or exercise a function or power of the Tribunal under Part 6 of the ART Act. Given the Tribunal must be constituted by at least one Deputy President in this jurisdictional area, it is not appropriate to allow these powers and functions to be exercised by any other member of the Tribunal.

SCHEDULE 5 - CONTINGENT AMENDMENTS OF THE ADMINISTRATIVE REVIEW TRIBUNAL ACT 2024

OUTLINE

308. This Schedule contains amendments to the ART Act which are contingent on the passage and commencement of other pieces of legislation.

AMENDMENTS

Item 1: Section 4

Insert definition

309. This item inserts the definition of ACIC and the ACC Act consequential to Item 2.

Item 2: Section 4 (after subparagraph (b)(i) of the definition of exempt security record decision)

310. This item reflects amendments proposed to the AAT Act in the Intelligence Services Legislation Amendment Bill 2023. The Intelligence Services Legislation Amendment Bill 2023 would expand the jurisdictions of the Inspector-General of Intelligence and Security and the Parliamentary Joint Committee on Intelligence and Security to oversee four additional agencies: the Australian Criminal Intelligence Commission and the intelligence functions of the Australian Federal Police, Australian Transaction Reports and Analysis Centre (AUSTRAC) and Home Affairs. The Bill provides that AAT reviews of decisions of the National Archives of Australia in respect of access to a record of the ACIC relating to a criminal intelligence assessment may only be conducted in the Security Division. In the new Tribunal, reviews currently conducted in the Security Division of the AAT will be conducted in the Intelligence and Security jurisdictional area.

311. The intent of this amendment is to provide that the power of the Tribunal under the Archives Act to review a decision of the National Archives of Australia in respect of access to a record of the ACIC relating to a criminal intelligence assessment may only be exercised in the Intelligence and Security jurisdictional area. It achieves this by including a record of the ACIC relating to a criminal intelligence assessment as part of the definition of exempt security record decision. An exempt security record decision is included in the definition of an intelligence and security decision (see definition in section 4 of the ART Act). The ART Act provides the Tribunal's powers in relation to a proceeding that relates to an intelligence and security decision are to be exercised in the Intelligence and Security jurisdictional area (see subsection 134(1)).

312. This amendment ensures that, subject to the Intelligence Services Legislation Amendment Bill 2023 passing the Parliament, and commencing, that the policy settings outlined in that Bill are given effect in the ART Act.