Senate

Supplementary Explanatory Memorandum relating to sheet GF100

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

GLOSSARY

In this Explanatory Memorandum, the following abbreviations are used:

AMENDMENTS TO THE ADMINISTRATIVE REVIEW TRIBUNAL (MISCELLANEOUS MEASURES) BILL 2024

(Government)

GENERAL OUTLINE

1. The purpose of these amendments to the Administrative Review Tribunal (Miscellaneous Measures) Bill 2024 (Bill) is to:

•

update the commencement provision so that the Bill commences after the Royal Assent, rather than on commencement of the Administrative Review Tribunal Act 2024 (ART Act), which has already occurred

•

remove the items in the Bill that would amend sections 347 and 348 of the Migration Act 1958 (Migration Act), relating to making applications to the Administrative Review Tribunal (Tribunal) for review of reviewable migration decisions or reviewable protection decisions

•

amend the timeframes for persons in immigration detention to apply to the Tribunal for review of a reviewable migration decision or reviewable protection decision

•

amend the Wine Australia Act 2013 (Wine Act) to enable the Wine Australia Regulations 2018 (Wine Regulations) to modify sections 18 and 19 of the ART Act in relation to timeframes to apply for review of decisions relating to international geographic indications, and

•

update a small number of outdated references to the AAT and the Administrative Appeals Tribunal Act 1975 (AAT Act) in Commonwealth Acts.

Commencement provision

2. The amendments would update the commencement table of the Bill to provide that the consequential amendments in Schedules 1 and 2 commence after the Royal Assent of the Bill, rather than at the same time as the ART Act (which commenced on 14 October 2024). This avoids a retrospective commencement.

Applications for review of reviewable migration and protection decisions

3. The amendments would remove items 115-119 in Schedule 2 to the Bill. Those items would amend sections 347 and 348 of the Migration Act to clarify the intended operation of the existing law that deals with making applications to the Tribunal for review of reviewable migration decisions or reviewable protection decisions. The removal of items 115-119 is not intended to alter the intent of the existing law, including in relation to what constitutes a properly made application for review by the Tribunal, or the consequences of properly or not properly making an application.

Timeframes for applying for review for people in immigration detention

4. Amendments to the Migration Act would extend the timeframe for persons who are in immigration detention to apply to the Tribunal for review of a reviewable migration decision or reviewable protection decision.

5. Section 347 of the Migration Act, as inserted by item 136 of Schedule 2 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Consequential Act 1), provides that an applicant who is in immigration detention has 7 days after the day they are notified of a reviewable migration or reviewable protection decision to apply for review of the decision.

6. The amendment would extend the period to make an application of this kind from 7 days to 14 days after the day the applicant is notified of the decision.

Timeframe to apply for review of foreign geographic indication determinations under the Wine Australia Regulations 2018

7. The amendments would insert new provisions in the Wine Act to authorise the Wine Regulations, which are made under that Act, to modify timeframes to apply to the Tribunal for review of decisions relating to determinations of foreign geographical indications and translations under section 40ZAQ of the Wine Act.

8. A final determination of a geographical indication identifies wine goods as originating in a country, or in a region or locality in that country, where a quality, reputation or other characteristic of the goods is essentially attributable to their geographical origin. The Wine Regulations provide for procedures for the determination of foreign geographical indications, and enable the Tribunal to review decisions relating to determinations of geographical indications in relation to wine originating from a foreign country.

9. Before the transition to the Tribunal, sections 98 and 107 of the Wine Regulations modified the standard timeframes under the AAT Act to apply for review of decisions relating to determinations of foreign geographical indications. Under these provisions, applicants had 28 days to apply for review, or apply for an extension of the timeframe to apply for review, from the publication of a notice of decision, and the timeframe could not be extended.

10. Section 5 of the ART Act provides that an instrument made under an Act can modify the application of the ART Act if the enabling Act provides the instrument can make such modifications. This was not a requirement under the AAT Act. The Wine Act does not currently authorise the Wine Regulations to modify the ART Act.

11. The amendments to the Wine Act would provide that the Wine Regulations may modify the provisions of the ART Act relating to timeframes to apply to the Tribunal (sections 18 and 19).

12. It is necessary and appropriate to enable the Wine Regulations to impose specific timeframes on applications of this kind, and applications for timeframes to be extended, in order to provide certainty regarding final determinations of geographical indications. This position is consistent with arrangements for review of decisions relating to geographical indications for Australian-grown wine, in section 40ZAH of the Wine Act. Enabling open-ended time periods for review of the decisions could lead to review being conducted long after registration of the geographical indication. Given the time it takes to grow grapes, and to make wine, certainty regarding registered geographical indications is fundamental to the efficacy of the Australian grape and wine industry. This is particularly the case for producers conducting business activities within the boundaries of a registered geographical indication.

13. The amendments would enable a continuation of long-standing arrangements for merits review that ensure the legislative framework for foreign geographical indications aligns with procedures established for Australian geographical indications under the Wine Act. This alignment is consistent with Australia's obligations under wine trade agreements that support market access for Australian wines in overseas markets and provides the same level of certainty for foreign geographical indications as is available for Australian geographical indications.

Minor reference updates

14. The amendments would also update a small number of outdated references to the AAT and the AAT Act in the Migration Act, the A New Tax System (Family Assistance) (Administration) Act 1999 and the Classification (Publications, Films and Computer Games) Act 1995.

FINANCIAL IMPACT

15. 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

Administrative Review Tribunal (Miscellaneous Measures) Bill 2024

16. The amendments to the 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 Bill

17. The purpose of these amendments to the Administrative Review Tribunal (Miscellaneous Measures) Bill 2024 (the Bill) is to:

•

update the commencement provision so that the Bill commences after the Royal Assent, rather than retrospectively

•

remove items in the Bill that would amend sections 347 and 348 of the Migration Act 1958 (Migration Act), relating to making applications to the Administrative Review Tribunal (Tribunal) for review of reviewable migration decisions or reviewable protection decisions

•

amend the timeframes for certain persons in immigration detention to apply for review of certain decisions in the Tribunal, and

•

amend the Wine Australia Act 2013 (Wine Act) to enable the Wine Australia Regulations 2018 (Wine Regulations) to modify sections 18 and 19 of the Administrative Review Tribunal Act 2024 (ART Act) in relation to timeframes to apply for review of decisions relating to international geographic indicators, and

•

update a small number of outdated references to the AAT and the Administrative Appeals Tribunal Act 1975 (AAT Act) in various Commonwealth Acts.

Human rights implications

18. The amendments engage the following 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

19. 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.

20. It follows that the right to an effective remedy relates to being able to make applications to have a decision re-made in a merits review tribunal, including under the ART Act.

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

22. 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.

Amendments to timeframes for persons in immigration detention

23. The amendments to the Migration Act amend the timeframe in which a person in immigration detention must apply to the Tribunal for review of a reviewable migration decision or reviewable protection decision, from 7 days to 14 days after the person is notified of the decision. To the extent that the right to an effective remedy and the right to a fair hearing apply in Tribunal matters, the amendments promote these rights by extending the period in which an application of this kind may be made.

Amendments to retain modifications contained in the Wine Australia Regulations 2018

24. The amendments to the Wine Act would ensure the legal effectiveness of provisions in the Wine Regulations that modify the standard timeframes to apply to the Tribunal for review of certain decisions under the Wine Regulations.

25. To the extent that the right to an effective remedy and the right to a fair hearing apply in Tribunal matters, the amendments to the Wine Act may engage these rights. These amendments have the legitimate objective of providing certainty to wine growers who, due to the length of time needed to grow grapes and produce the wine, rely on reviews of decisions affecting their business activities being determined within a confined period of time. The amendments also ensure review procedures are consistent with procedures prior to the ART commencing operations, and are consistent with Australia's international obligations under certain trade agreements.

Conclusion

26. The amendments are compatible with human rights. They promote the right to an effective remedy and the right to a fair hearing (to the extent it applies in Tribunal matters). To the extent that the amendments limit any human rights, those limitations are reasonable, necessary and proportionate.

NOTES ON AMENDMENTS

Amendment 1: Clause 2, page 2 (table item 2)

Commencement of the Bill

27. This amendment updates table item 2 under clause 2 of the Bill, which sets out when Schedules 1 and 2 of the Bill (which contain repeals and consequential amendments to a number of Commonwealth Acts) commence.

28. Current table item 2 provides that Schedules 1 and 2 of the Bill commence immediately after the ART Act commences. Other items in the table provide for the commencement of other Schedules through cross-references to table item 2. However, the ART Act has already commenced, on 14 October 2024.

29. The amendment updates table item 2 to provide that Schedules 1 and 2 of the Bill commence the day after the Bill receives Royal Assent. This avoids any aspect of the Bill commencing retrospectively, which would cause uncertainty and complexity in relation to review rights and proceedings relying on the existing law during the period between the commencement of the ART Act and the enactment of the Bill.

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

Amendment 2: Schedule 2, page 21 (before line 4), before item 65

Terminology changes

30. This amendment inserts new item 64A into Schedule 2 of the Bill. This item replaces an outdated reference to the 'AAT' in subsection 124(3) of the A New Tax System (Family Assistance) (Administration) Act 1999 with a reference to the ART.

Migration Act 1958

Amendment 3: Schedule 2, page 35 (after line 11), after item 113

Terminology changes and updating legislative references

31. This amendment inserts new items 113A and 113B into Schedule 2 of the Bill. The new items replace outdated references to the "Administrative Appeals Tribunal" and the "Tribunal" in subsection 245AYK(9) of the Migration Act with references to the Administrative Review Tribunal and the ART. This reflects amendments made by Consequential Act 1 to repeal the definition of Tribunal in subsection 5(1) of the Migration act and replace it with a definition of ART.

32. This amendment also inserts new item 113C. This item amends the note to subsection 245AYK(9) of the Migration Act, replacing the outdated 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. This amendment is technical in nature and ensures the note remains accurate.

Amendment 4: Schedule 2, items 115 to 119, page 35 (line 18) to page 37 (line 2)

Applications for review of reviewable migration decisions or reviewable protection decisions

33. This amendment has the effect of omitting the following items from Schedule 2 to the Bill:

•

item 115, which would repeal and substitute subsections 347(2) and (3) of the Migration Act to clarify existing law regarding what constitutes a properly made application for reviewable migration decisions and reviewable protection decisions

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items 116 and 117, which would amend subsections 347(4) and 347(7) of the Migration Act to substitute references to the relevant subsections of the Migration Act, consequential to the amendments made by item 115

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item 118, which would repeal the note to subsection 348(1), consequential to the amendments made by item 119, and

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item 119, which would repeal and replace subsection 348(2) of the Migration Act to state that the Tribunal must not review an application made under sections 347 and 347A that is not properly made, and would insert new subsection 348(3) to set out what constitutes a properly made application for review of reviewable migration decisions and reviewable protection decisions.

34. Items 115-119 would amend sections 347 and 348 of the Migration Act to clarify the intended operation of the existing law that deals with making applications to the Tribunal for review of a reviewable migration decision or reviewable protection decision. The removal of items 115-119 is not intended to alter the intended operation of the existing law, including in relation to what constitutes a 'properly made' application for review by the Tribunal. An application for a reviewable migration decision or reviewable protection decision is properly made (and enlivens the Tribunal's jurisdiction) if, and only if:

•

it is made within the period specified in subsection 347(3) of the Migration Act

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it includes the information and is accompanied by any documents prescribed for the application under subsection 347(2), and provided within the period specified in subsection 347(3)

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it is accompanied by any fee prescribed for the application under subsection 347(2), and

•

it is made by a person with standing to make the application (see section 347A).

35. The removal of items 115-119 is not intended to change the consequence of properly making, or not properly making, an application to the Tribunal. If an application is properly made, the Tribunal must review the decision. If an application is not properly made (because it does not satisfy the requirements identified above), the Tribunal will not have jurisdiction to review the decision.

Period for applying for review of reviewable migration or reviewable protection decision

36. This amendment inserts a new item 115, which omits the reference to '7 days' in paragraph 347(3)(a) of the Migration Act, and replaces it with a reference to '14 days'.

37. This amendment has the effect that the period in which a person who is in immigration detention must apply for review of a reviewable migration decision or reviewable protection decision under section 347 of the Migration Act is 14 days (rather than 7 days) after the applicant is notified of the decision. This ensures that applicants in immigration detention do not have less time to apply for review than they did prior to the commencement of the amendments in Consequential Act 1.

Amendment 5: Schedule 2, Part 12, page 37 (after line 5), at the end of the Part

Terminology changes

38. This amendment inserts new item 120A into the Bill. The new item replaces an outdated reference to "Tribunal" in paragraph 375A(2)(b) of the Migration Act with a reference to "ART". This reflects amendments made by Consequential Act 1 to repeal the definition of Tribunal in subsection 5(1) of the Migration Act and replace it with a definition of ART.

Wine Australia Act 2013

Amendment 6: Schedule 2, page 39 (after line 4), at the end of the Part

Authorising contrary intention prescribed by a legislative instrument

39. This amendment inserts new items 127A and 127B into Schedule 2 of the Bill. Items 127A and 127B insert new subsections 40ZAQ(4) and 40ZAT(3) into the Wine Act to provide that regulations made for the purposes of those sections of the Act may contain provisions that modify the operation of sections 18 and 19 of the ART Act.

40. 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.

41. The Wine Regulations enable the Tribunal to review determinations of geographical indications in relation to wine originating from a foreign country and determinations to omit a geographical indication from the relevant register as well as registered translations of such indications.

42. Sections 98 and 107 of the Wine Regulations provide that applicants have 28 days from publication of a notice of determination made by the Geographical Indications Committee to apply for review of that determination, or to apply for an extension of time in which to apply for review. These sections apply contrary to sections 18 and 19 of the ART Act, which provide the timeframe for applying to the Tribunal for review, and the power of the Tribunal to extend that timeframe.

43. The effect of inserting new subsections 40ZAQ(4) and 40ZAT(3) into the Wine Act is to enable the Wine Regulations, and other regulations made under sections 40ZAQ and 40ZAT, to continue to contain provisions that modify the operation of sections 18 and 19 of the ART Act.

44. These modifications to review procedures under the ART Act are to provide certainty in relation to final determinations of geographical indications. It is important for wine growers to know within a confined period of time that they are growing grapes within the boundaries of a particular geographical indication to ensure that the wine produced from such grapes will obtain the expected market access and value.

45. The modifications would also ensure Australia meets its international obligations under wine trading agreements by ensuring consistency in procedures relating to determinations of Australian and foreign geographical indications under the Wine Regulations and the Wine Act.

Classification (Publications, Films and Computer Games) Act 1995

Amendment 7: Schedule 2, page 40 (before line 3), before the heading specifying New Vehicle Standards Efficiency Act 2024

Terminology changes

46. This amendment inserts new items 127C and 127D into the Bill. These items replace outdated references to the AAT and the Administrative Appeals Tribunal in section 224 of the Classification (Publications, Films and Computer Games) Act 1995 with references to the ART and the Administrative Review Tribunal.