Senate

Supplementary Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Hon Michelle Rowland MP)

GLOSSARY

In this Supplementary Explanatory Memorandum, the following abbreviations are used:

AMENDMENTS TO THE ADMINISTRATIVE REVIEW TRIBUNAL AND OTHER LEGISLATION AMENDMENT BILL 2025

(Government)

GENERAL OUTLINE

1. The purpose of the Administrative Review Tribunal and Other Legislation Amendment Bill 2025 (Bill) is to amend the Administrative Review Tribunal Act 2024 (ART Act) and the Migration Act 1958 (Migration Act) to expand the circumstances in which the Administrative Review Tribunal (Tribunal) determines matters without conducting an oral hearing through an 'on the papers' review process.

2. These amendments to the new 'on the papers' review process proposed in the Bill would have the effect that that process would only apply to reviews of reviewable migration decisions that relate to temporary visas of a kind prescribed in regulations made under the Migration Act.

3. The amendments would also amend the Bill to further improve the operational efficiency of the Tribunal by:

•

amending section 212 of the ART Act to enable Non-Judicial Deputy Presidents to be appointed to act for the President for short periods in certain circumstances, and

•

amending section 279 of the ART Act to allow the President to delegate powers or functions under section 200 (giving directions) or subsection 203(3) (restricting member's duties) to Non-Judicial Deputy Presidents.

FINANCIAL IMPACT

4. These amendments would not impact the existing financial impact of the Bill and associated legislation.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Amendments to the Administrative Review Tribunal and Other Legislation Amendment Bill 2025

5. The amendments to the Administrative Review Tribunal and Other Legislation Amendment Bill 2025 (Bill) are 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 amendments to the Bill

6. The purpose of these amendments to the Bill is to give effect to certain recommendations of the inquiry into the Bill by the Senate Legal and Constitutional Affairs Legislation Committee.

7. The Bill would expand the Administrative Review Tribunal's ability to determine matters without conducting the hearing of the proceeding.

8. The Bill would introduce a new Division 4A in Part 5 of the Migration Act 1958 (Migration Act) to require the Tribunal to make a decision on applications for review of certain kinds of reviewable migration decisions, without an oral hearing.

9. Current paragraphs 367C(2)(a) and (b) at item 16 of Schedule 1 to the Bill set the scope of new Division 4A, such that an application made to the Tribunal for review of a reviewable migration decision would be an 'application to be reviewed on the papers' if:

•

the decision is a decision to refuse to grant a student visa, or

•

the decision is a decision relating to a temporary visa – the application is of a kind prescribed.

10. The amendments to the Bill would amend the scope of new Division 4A such that applications to be reviewed on the papers would only be applications for review of reviewable migration decisions relating to temporary visas that have been prescribed for that purpose.

11. As student visas are a kind of temporary visa within the meaning of section 5 of the Migration Act, decisions to refuse to grant a student visa would remain in the scope of the regulation-making power.

12. The amendments would also amend the Administrative Review Tribunal Act 2024 (ART Act) to further improve the operational efficiency of the Tribunal by:

•

enabling Non-Judicial Deputy Presidents to be appointed to act as the President of the Tribunal during short-term absences, and

•

enabling the President of the Tribunal to delegate certain powers and functions relating to managing member performance and conduct to Non-Judicial Deputy Presidents.

Human rights implications

13. The amendments engage the following rights:

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

14. 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.

15. 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 determination of rights and obligations in a 'suit at law' is entitled to a 'fair and public hearing by a competent, independent and impartial tribunal established by law'. Article 14(1) also recognises that 'the press and public may be excluded from all or part of a trial for reasons of morals, public order (order public) or national security in a democratic society, or when the interest of the private lives of the parties so requires...'.

16. The extent to which article 14(1) of the ICCPR applies to administrative review proceedings (whether such proceedings constitute a 'suit at law') is not fully settled.

Application of new 'on the papers' review process

17. The amendments to the Bill relating to the Migration Act engage the right to an effective remedy and right to a fair hearing (to the extent it applies in Tribunal matters) by enabling regulations to prescribe certain applications for review of reviewable migration decisions relating to temporary visas to be reviewed by the Tribunal on the papers, without an oral hearing.

18. The effect of the amendments is that for an application for review of a reviewable migration decision relating to a temporary visa to be an 'application to be reviewed on the papers', it must be prescribed in regulations.

19. These amendments retain the overarching objective of the Bill to support the operation of an administrative review tribunal that conducts quick and efficient tribunal review with as little formality and expense as a proper consideration of the matter requires.

20. The nature of review conducted on the papers will necessarily limit the applicant's opportunity to present their case orally. To the extent that this limits the right to an effective remedy and a right to a fair hearing, this is in pursuit of the legitimate goal of providing a form of review that is proportionate to the complexity of the matter, and is reasonable, necessary and proportionate.

21. To the extent that the right to an effective remedy and the right to a fair hearing apply in Tribunal matters, the amendments reinforce the reasonableness and proportionality of any limitation of these rights, because the procedure will only apply to kinds of visas prescribed in regulations, and the regulations will be subject to the safeguard provided by Parliament's disallowance procedures. Ensuring the kinds of applications to be reviewed on the papers are prescribed in regulations, rather than set out in primary legislation, would provide flexibility for the Government to remove types of temporary visa decisions from that process where that becomes appropriate.

Conclusion

22. The amendments are compatible with human rights because they promote the protection of human rights, and to the extent that the amendments limit any human rights, those limits are reasonable, necessary and proportionate.

NOTES ON AMENDMENTS

Amendment 1: Schedule 1, item 9, page 5 (lines 23 to 24)

23. This amendment would amend the legislative note under new section 357 at item 9 of Schedule 1 to the Bill to reflect the amended application of new Division 4A of Part 5 of the Migration Act under Amendment 2.

24. Under the Bill, new Division 4A of Part 5 of the Migration Act would set out the procedure by which the Tribunal is required to review applications for review of certain kinds of reviewable migration decisions relating to temporary visas on the papers, without an oral hearing. Amendment 2 of these Amendments would amend the scope of the new 'on the papers' process.

25. New section 357 in the Bill would clarify the scope of Division 4 of the Migration Act, by providing that Division 4 does not apply in relation to an application to be reviewed on the papers.

26. The amended legislative note would clarify that new Division 4A would apply instead of Division 4 in relation to applications to be reviewed on the papers, which is a decision relating to a temporary visa, and is prescribed by the regulations.

Amendment 2: Schedule 1, item 16, page 7 (lines 9 to 12)

27. This amendment would amend new paragraphs 367C(2)(a) and (b) at item 16 of Schedule 1 to the Bill, which set out the definition of 'an application to be reviewed on the papers', which are to be subject to the new 'on the papers' review process under new Division 4A of Part 5 of the Migration Act.

28. Current paragraphs 367C(2)(a) and (b) at item 16 of Schedule 1 to the Bill would have the effect that an application made to the Tribunal for review of a reviewable migration decision is an 'application to be reviewed on the papers' if:

•

the decision is a decision to refuse to grant a student visa, or

•

if the decision is a decision relating to a temporary visa – the application is of a kind prescribed.

29. The amendment would remove the reference to applications for review of decisions to refuse to grant a student visa as being 'applications to be reviewed on the papers'. The effect of this amendment would be that applications for review of reviewable migration decisions relating to temporary visa decisions to which the new 'on the papers' review process in the Bill would apply must be prescribed in regulations made under the Migration Act. As student visas are a kind of temporary visa within the meaning of section 5 of the Migration Act, decisions to refuse to grant a student visa would remain in the scope. The 'on the papers' review process would otherwise remain the same.

30. This change gives effect to Recommendation 2 of the Senate Legal and Constitutional Affairs Legislation Committee, following its inquiry into the Bill.

31. Schedule 1 to the Migration Regulations 1994 (Regulations) set out classes of visas. It is appropriate that the kinds of applications to be dealt with on the papers be prescribed in regulations, rather than in primary legislation, to allow any prescribed visa classes to be kept in alignment with changes to the Regulations.

32. The amendment would provide additional flexibility for the Government to apply the new 'on the papers' process as appropriate. Ensuring the kinds of applications to be reviewed on the papers are prescribed in regulations, rather than set out in primary legislation, would enable the Government to remove types of temporary visa decisions from that process where appropriate.

33. Any regulations made under the regulation-making power in new paragraph 367C(2)(b) would be disallowable.

34. The legislative note at section 367C would remain unchanged, clarifying that an application made to the ART for review of a reviewable protection decision (as defined at section 338A of the Migration Act) cannot be an 'application to be reviewed on the papers'. This is because subsection 367C(2) would continue to refer to only kinds of 'reviewable migration decisions'.

Amendment 3: Schedule 1, page 15 (after line 13), at the end of the Schedule

35. This amendment would insert a new Part 3 to the Bill.

36. Part 3 would make amendments to the ART Act to give effect to Recommendation 1(b) of the Senate Legal and Constitutional Affairs Legislation Committee's report on the Bill, which was:

The committee recommends that the Australian government consider, in consultation with the Administrative Review Tribunal, amending the Bill to further improve the operational efficiency of the Tribunal, including:

...

"(b) noting the significant expansion in functions performed by the President (compared with the President of the former Administrative Appeals Tribunal), and with the benefit of 12 months of experience, amendments that might assist the President to better and more efficiently carry out his or her functions (e.g. extending the delegation powers to a Deputy President)".

Acting appointments for Non-Judicial Deputy Presidents

New item 22: Subsection 212(2)

37. Currently, subsection 212(1) of the ART Act provides for two circumstances in which the Minister may, by written instrument, appoint a person to act as the President. These are during:

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a vacancy in the office of the President, or

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any, or all periods, that the President is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.

38. Currently, subsection 212(2) provides that a person must not be appointed to act as the President in either of these circumstances unless the person is qualified to be appointed as the President—that is, they are a judge of the Federal Court—and the Minister has consulted the Chief Justice of the Federal Court.

39. This item would amend subsection 212(2) to clarify that those preconditions to the making of an appointment to act as the President continue to apply for appointments made when there is a vacancy in the office of the President.

40. This amendment is consequential to the insertion of new subsections 212(2A) and (2B) by item 23 below.

New item 23: After subsection 212(2)

41. Item 23 would insert new subsections 212(2A) and (2B) into the ART Act, to allow Non-Judicial Deputy Presidents to act as the President when the President is absent or unable to perform the duties of the office for a period of up to 3 weeks.

42. New subsection 212(2A) would set out the requirements that must be met to appoint a person to act for the President when the President is absent or unable to perform the duties of the office.

43. New paragraph 212(2A)(a) would enable a person qualified to be appointed as the President to be appointed to act for the President, if the Minister has consulted the Chief Justice of the Federal Court on the appointment. This replicates existing requirements under subsection 212(2).

44. New paragraph 212(2A)(b) would enable a person who is a Non-Judicial Deputy President to be appointed to act as the President when the President is absent from duty or from Australia, or is unable to perform the duties of the office. This is a change to the existing policy of section 212, because Non-Judicial Deputy Presidents are not judicial officers, and at present are not able to act as the President under any circumstances. Non-Judicial Deputy Presidents would continue to not be able to act for the President during a vacancy in that office.

45. Non-Judicial Deputy Presidents are highly qualified and skilled decision-makers. Section 207 of the ART Act requires that a person appointed as a Non-Judicial Deputy President must have been enrolled as a legal practitioner for 10 years, and must be either a former judge, or have substantial experience in one or more areas relevant to the jurisdiction of the Tribunal.

46. Judicial Deputy Presidents can only be appointed on a sessional basis under subsection 206(6) of the ART Act, meaning that they are called upon by the Tribunal as needed, and do not have a fixed work pattern. This recognises that there are practical benefits of being able to use judicial members in legally complex, highly contentious or sensitive matters. In practice, Non-Judicial Deputy Presidents undertake more Tribunal functions than Judicial Deputy Presidents, in recognition of their greater involvement in day-to-day Tribunal operations.

47. On this basis, it is appropriate for Non-Judicial Deputy Presidents to be able to act as the President for short periods whilst the President is absent, noting that they are more easily mobilised for that purpose, and have a significant understanding of internal and administrative Tribunal processes.

48. New paragraph 212(2B) would limit the appointment of a Non-Judicial Deputy President to act as the President to a period of no more than 3 weeks. This recognises that for longer term acting arrangements, it is more suitable for a Judicial Deputy President, who meets the requirements for substantive appointment as President, to act for the President.

New item 24: Subsection 212(7)

49. Item 24 would substitute a new subsection 212(7) to limit the length of extensions for acting appointments for Non-Judicial Deputy Presidents.

50. Under existing subsection 212(7), extensions of acting appointments are limited to being for not more than 12 months.

51. New paragraph 212(7)(a) would maintain the 12-month limit to extensions of acting appointments for all acting appointments other than where a Non-Judicial Deputy President is appointed to act as the President under new paragraph 212(2A)(b).

52. New paragraph 212(7)(b) limits any extension of an appointment of a Non-Judicial Deputy President to act as the President to being no more than 3 weeks. This reflects the intention that these appointments are intended to be short-term arrangements for short periods of leave or absence.

53. Currently, subsection 212(5) allows for the extension of acting appointments by the Minister, if the Minister is satisfied that it is necessary to do so by reason of a pending proceeding or other special circumstances. This would continue to be a precondition to the making of any extension of an appointment, including the appointment of a Non-Judicial Deputy President to act as the President.

54. Subsection 212(6) requires that an extension must be made in writing by the Minister, and before the day that the member who was absent or unable to perform the duties of the member's office returns to perform those duties. There would be no changes to these settings, and these requirements would continue to apply in relation to any proposed extension of an acting appointment, including when a Non-Judicial Deputy President is appointed to act as the President.

Enabling President to delegate certain powers to Non-Judicial Deputy Presidents

55. The amendments to section 279 of the ART Act would enable the President to delegate certain additional powers to Non-Judicial Deputy Presidents. Extending the delegation powers of the President, with appropriate oversight, would increase the operational efficiency of the Tribunal.

56. Existing subsection 279(1) allows the President to delegate their powers or functions, unless those powers and functions are expressly not able to be delegated under subsection 279(2).

New item 25: After paragraph 279(2)(a)

57. New item 25 of the Bill would insert a new paragraph 279(2)(a), which would prevent the President from delegating the power to give directions to members under section 200, or to restrict a member's duties under subsection 203(3), other than in accordance with new subsection 279(2A).

New item 26: Subsection 279(2)

58. This item would make amendments to the table at paragraph 279(2)(b), which lists powers and functions that the President must not delegate.

59. This item would remove table item 8 which relates to the power to give written directions to non-judicial members relating to the performance of the member's duties under section 200. This would allow the President to delegate this power to Non-Judicial Deputy Presidents, consistently with new subsection 279(2A).

60. Consistent with existing subsection 200(3), a direction must not relate to a particular proceeding in the Tribunal. Examples of the kinds of directions that may be made under this power include:

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directing members to perform training or professional development activities, and

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directing members not to repeat conduct, where a minor breach of the code of conduct or performance standard is identified.

61. This item would also remove table item 11, which would allow the President to delegate the power to restrict a member's duties under subsection 203(3). Currently, this power is able to be exercised where the President forms the opinion that a member may have engaged in conduct that may:

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have breached the performance standard or code of conduct

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be a ground for termination under clause 221

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have adversely affected the member's performance of their official duties, or

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undermine public confidence and trust in the Tribunal.

New item 27: After subsection 279(2)

62. New item 27 would insert new subsection 279(2A), which would limit the delegation of the President's powers to give directions to members and restrict a member's duties under section 200 and subsection 203(3) so that these powers could only be delegated to a member who is a Non-Judicial Deputy President.

63. Under section 197 of the ART Act, the President or a Non-Judicial Deputy President are able to be assigned to be a jurisdictional area leader. One of the functions of jurisdictional area leaders under paragraph 197(5)(d) is to assist the President to manage the performance and conduct of members assigned to the jurisdictional area.

64. It is appropriate that Non-Judicial Deputy Presidents are able to exercise powers to issue directions to members and restrict a member's duties in the performance of that function.