House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)

Statement of compatibility with human rights

TRIBUNALS AMALGAMATION BILL

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

7. 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.

Background

8. The Tribunals Amalgamation Bill 2014 would amend various Acts in order to merge the Social Security Appeals Tribunal and the Migration Review Tribunal and Refugee Review Tribunal into the Administrative Appeals Tribunal. The amalgamated Tribunal would be established under the AAT Act. It would be called the AAT. The Veterans' Review Board and the Classification Review Board are not included in the amalgamation.

9. The Bill is primarily directed at the establishment, organisation and procedures of the amalgamated Tribunal. The Bill is not intended to affect the wide range of substantive rights which can be the subject of merits review.

10. Currently, the AAT has jurisdiction to review decisions under more than 450 laws. In the last financial year the AAT finalised 6,748 applications. Social security, taxation and workers' compensation matters made up approximately 76% of the applications finalised. The AAT also has jurisdiction to review decisions under the National Disability Insurance Scheme (NDIS). The AAT Act provides for the establishment, organisation and membership of the Tribunal, and a comprehensive procedural framework for the conduct of reviews.

11. The MRT-RRT conducts merits reviews of visa and visa-related decisions made by the Department of Immigration and Border Protection. The MRT reviews decisions for a wide range of visas, including the refusal and cancellation of temporary work visas, family visas and student visas. The RRT reviews decisions to refuse to grant or to cancel protection visas within Australia. The MRT-RRT finalised 24,729 reviews in the last financial year. Approximately 85% of those reviews were in the MRT. The legal framework for the MRT-RRT-its establishment and organisation, jurisdiction and procedures-is currently within the Migration Act.

12. The SSAT is the first level of external review of decisions on social security, family assistance, education or training assistance, child support and parental leave payments. In the 2012-2013 financial year the SSAT finalised 12,412 reviews. Review applications can be categorised into three types: Centrelink reviews other than paid parental leave (which makes up approximately 84% of their caseload), paid parental leave reviews and child support reviews. The SSA Act provides the legal framework for the SSAT and its procedures for the review of decisions under the social security law.

Objectives of the Bill

13. By providing a single point of contact for persons seeking review of most administrative decisions, the amalgamation would streamline and simplify the Commonwealth merits review system and improve access to justice by fostering greater awareness of the Tribunal's function.

14. The amalgamated Tribunal would be required to pursue the statutory objective (Item 1 of Schedule 1 to the Bill) of providing a mechanism of review that:

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is accessible

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is fair, just, economical, informal and quick

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is proportionate to the importance and complexity of the matter, and

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promotes public trust and confidence in the decision making of the Tribunal.

15. A strong, impartial and effective Tribunal in turn would strengthen government decision-making by providing an avenue for persons to seek review of decisions that affect their interests.

16. The amalgamation would produce the coherent merits review framework that was first envisaged when the AAT was established in 1976 as an administrative review tribunal with general jurisdiction. It follows key reform recommendations by the National Commission of Audit in the 2014 Towards Responsible Government report and, previously, by the 2012 Strategic Review of Small and Medium Agencies in the Attorney General's Portfolio and the Administrative Review Council's 1995 Better Decisions report.

17. The purpose of the Bill is to establish a sound institutional framework for the amalgamated Tribunal, which would preserve its independence and the expertise of its members. The Bill would seek to harmonise and simplify procedures applicable to merits review where appropriate, but would also provide for flexibility in rules and diversity in approaches across the amalgamated Tribunal's varied jurisdictions. To this end, the Bill does not seek to make significant changes to procedures that currently apply in the AAT, MRT-RRT and the SSAT. Instead, recognising that distinctions in procedure across the tribunals are appropriate to their particular cohorts of applicants and caseloads, the Bill seeks to preserve successful processes and features of the existing tribunals. This reflects the high standards of the existing tribunals' approaches to merits review.

18. Importantly, the Bill would preserve existing applicant rights of access to merits review (and in respect of certain child support matters, access to merits review would be expanded-see Schedule 4 to the Bill). Existing rights to judicial review would also be preserved.

19. Consistent with the Government's commitment to reduce unnecessary duplication and inefficiency in public administration, the Bill will generate savings through the adoption of consolidated financial, human resources, information technology and governance arrangements by the amalgamated Tribunal.

20. The Bill was developed in close consultation with the tribunals and relevant Commonwealth Departments, and was also the subject of consultation with key community stakeholders.

21. The measures in each Schedule to the Bill are summarised below, followed by discussion on the human rights implications of the Bill.

Overview of the Schedules

Schedule 1 - Amendment of the Administrative Appeals Tribunal Act 1975

22. Schedule 1 to the Bill would amend the AAT Act to support amalgamation. Key amendments follow.

23. The key amendments in Schedule 1 to the Bill would:

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create a robust governance structure for the amalgamated Tribunal, headed by a President, supported by the Registrar and the members (all statutory officers)

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preserve the independence of the amalgamated Tribunal, including by maintaining the requirement that the President be a judge of the Federal Court of Australia

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preserve the existing remuneration and terms and conditions of members appointed to the AAT, SSAT and MRT-RRT to ensure that members are not disadvantaged by the amalgamation

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retain the existing Divisional structure of the Tribunal, which is essential to managing the large and varied caseload and facilitating member specialisation, but with new Divisions:

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Freedom of Information Division

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General Division

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Migration and Refugee Division

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National Disability Insurance Scheme Division

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Security Division

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Social Services and Child Support Division

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Taxation and Commercial Division, and

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a further Division, the Veterans' Appeals Division, will be established by Regulation

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preserve the ability of the President and Deputy Presidents of the Tribunal to sit across all Divisions, so as to provide leadership and facilitate the sharing of best practices. Senior members and members would continue to be assigned to a Division or Divisions by the Minister, so as to promote the development of specialised expertise. The Minister administering the AAT Act would consult with other Ministers about member assignments where a Division's work substantially affects their portfolio. This reflects existing practice

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preserve the power of the President to issue practice directions about matters including the operations of the Tribunal and the conduct of review. This ensures transparency and consistency in approach across the amalgamated Tribunal and promotes the flexibility to meet changing workloads over time

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ensure that merits review of Government decision-making is accessible no matter where an applicant to the Tribunal may be located, including by modernising provisions related to hearings by electronic means, which promotes accessibility

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preserve alternative dispute resolution processes currently in place, which are a core component of the AAT's function and contribute to an economical, informal and quick review process

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preserve the right to a two-staged review process, where currently available, for certain decisions currently reviewed by the SSAT (including social security decisions), and

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preserve other procedures that are essential to maintaining fair and efficient reviews in the migration and refugee, and social services and child support, jurisdictions.

Schedule 2 - Migration amendments

24. Schedule 2 to the Bill would abolish the MRT-RRT and transfer its jurisdiction to the AAT. It would preserve the existing codes of procedure in Parts 5 and 7 of the Migration Act, which would apply to review of decisions in the Migration and Refugee Division of the amalgamated Tribunal. The AAT also currently has jurisdiction to review certain decisions under the Migration Act. There would be no change to this existing jurisdiction.

25. The Migration Act codes, which codify the requirements of procedural fairness, provide certainty for the amalgamated Tribunal and its users in the review of decisions. They also promote consistency in Tribunal decision-making. For these reasons, Schedule 1 to the Bill would provide that Part IV of the AAT Act-which sets out procedures for the conduct of review-is excluded in relation to decisions reviewable in the Migration and Refugee Division, subject to the limited exceptions set out in proposed section 24Z (Item 39 of Schedule 1 to the Bill).

Schedules 3, 4, 5, 6 and 7-Social services and child support amendments

26. Schedule 3 to the Bill would amend the SSA Act, while Schedules 4 to 7 would amend the CSRC Act, the FAA Act, the PPL Act and the SA Act respectively.

27. It is anticipated that Regulations would provide that decisions made under these Acts (being those decisions currently reviewed by the SSAT) would be reviewed by the amalgamated Tribunal in its Social Services and Child Support Division. Distinct features of the SSAT, which have operated successfully and are of particular benefit to reviewing decisions of this kind, would be preserved. Schedule 3 to the Bill would abolish the SSAT. Schedules 3 to 7 to the Bill would transfer the SSAT's jurisdiction in respect of decisions made under the relevant Act to the amalgamated Tribunal.

28. Key procedural rules that would be preserved for social services and child support matters by Schedules 3 to 7 (and in some cases, by amendments to the AAT Act in Schedule 1) include:

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oral lodgement and withdrawal of applications in most cases (certain paid parental leave applications would be required to be in writing)

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arrangements for applicants in some circumstances to continue to receive a payment pending the outcome of Tribunal review

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hearings to be conducted in private, unless otherwise directed, and

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the right to two-stage review of certain decisions made by the amalgamated Tribunal in its Social Services and Child Support Division (those decisions in respect of which AAT review of SSAT decisions is currently available).

Schedule 8 - Other consequential amendments

29. Schedule 8 to the Bill provides for consequential amendments largely to legislation that will confer jurisdiction on the amalgamated Tribunal. These amendments are minor and technical.

Schedule 9 - Transitional and saving provisions

30. Schedule 9 to the Bill provides transitional and savings provisions for the amalgamated Tribunal including the transfer of members from the SSAT and MRT-RRT to the AAT. The savings arrangements would transfer the appointment, remuneration and terms and conditions of the various types of members and the Registrar to the amalgamated Tribunal.

31. The transitional provisions also transfer key authorisations and powers to ensure that members and other officers of the Tribunal can continue to exercise their duties and obligations upon commencement.

32. Proceedings on foot in the MRT-RRT and the SSAT would be transferred to the AAT and the validity of anything done by the Tribunals, or by other persons, in relation to those proceedings would be preserved.

33. The new law - the AAT Act, and the Acts conferring jurisdiction on the AAT, as amended by the Bill-would apply from commencement on 1 July 2015, including in relation to proceedings commenced and Tribunal decisions made before that date, subject to limited exceptions. These include:

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subsection 34D(4) and 42C(5) of the AAT Act: these new powers to vary or revoke a decision made by consent would not apply to decisions of the AAT made before 1 July 2015, and

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changes to offence provisions in the AAT Act would not apply in relation to conduct engaged in before 1 July 2015.

34. Amongst other things, the savings arrangements also ensure the registries of the discontinued Tribunals would be taken to be registries of the AAT.

35. The Bill also allows for further transitional arrangements to be made through the regulations.

Human rights implications

36. The Bill engages the following human rights:

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

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

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the right to minimum guarantees in proceedings of the accused in criminal trials in Article 14(3) of the ICCPR

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

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the right to freedom of opinion and expression in Article 19 of the ICCPR

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the obligation to treat the best interests of the child as a primary consideration, and the right of a child to express his or her opinion, in Articles 3 and 12 of the CRC, and

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

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

37. Article 2(3) requires the Government to ensure that, where a person's rights or freedoms are violated under the ICCPR, they have access to an effective and enforceable remedy determined by competent judicial, administrative or legislative authorities.

38. Merits review is an administrative process created by statute and accordingly there is no right to merits review as such. However, the administrative decisions that are the subject of merits review may touch on rights protected by the ICCPR. In such circumstances, access to merits review may afford an effective remedy.

39. The amalgamated Tribunal would perform a critical role in the review of government decisions. While some decisions will have undergone internal review by the relevant Department or agency prior to a person making an application to the Tribunal, in other cases the Tribunal would be the first level of scrutiny of the decision. In reviewing administrative decisions, the role of the amalgamated Tribunal is to ensure the correct or preferable decision is made based on the information before it. This means making the legally correct decision or, where more than one decision would be legally correct, the preferable decision. In doing so, the amalgamated Tribunal can consider additional evidence that was not before the original decision-maker.

40. The amalgamated Tribunal would typically be entitled to exercise all the powers and discretions conferred on the primary decision-maker. Where the Tribunal varies a decision, or sets it aside and substitutes a new decision, the Tribunal's decision typically has effect as if it were the decision of the primary decision-maker. The Tribunal's decision would be a final and lawful determination of a person's statutory entitlements (unless appealed to a court).

41. The Bill would preserve the existing position that certain decisions would undergo two rounds of review within the amalgamated Tribunal: namely, decisions under the social security law, family and student assistance decisions, paid parental leave decisions, and child support decisions, where a right currently exists for further review by the AAT of SSAT decisions. The Bill would also preserve the right to judicial review under Part IVA of the AAT Act and Part 8 of the Migration Act.

42. Based on annual reports, the existing tribunals received a total of 38,852 applications in the 2012-2013 financial year. The number of decisions that go to external merits review, and the outcomes of those decisions, demonstrate that the amalgamated Tribunal would promote access to an effective remedy (to the extent that this right attaches in relation to potential violations of rights protected in the ICCPR).

Right to a fair hearing in Article 14(1) of the ICCPR

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

44. The extent to which Article 14(1) applies to administrative review proceedings (whether such proceedings constitute a 'suit at law') is not fully settled. To the extent that it may apply, the Bill would promote the right to a fair hearing.

45. The Tribunal would be required by its statutory objective to pursue a fair and just mechanism of review (Item 1 of Schedule 1 to the Bill). The procedures in the amalgamated Tribunal would promote a fair hearing. Particular aspects of the right are addressed below.

Private hearings

46. Article 14(1) provides the general principle that hearings should be in public. Section 35 of the AAT Act (Item 66 of Schedule 1 to the Bill) endorses this as the starting point for Tribunal reviews. The Tribunal can also publish its decisions and reasons in appropriate cases (Item 66 of Schedule 1 to the Bill). However, the Bill would require or permit private hearings in a number of circumstances, including:

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hearings in refugee matters and social services and child support matters would be required to be in private, due to the need to protect the parties and their privacy and safety (this being especially relevant in refugee and some child support matters), and

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hearings in the Security Division in relation to security assessments would be required to be in private, due to the sensitive nature of the national security information involved.

47. The amalgamated Tribunal would also have the discretion to make orders for non-publication and non-disclosure of information (see Item 67 of Schedule 1 to the Bill).

48. Provision for private hearings in these circumstances is permissible under Article 14(1), which contemplates privacy and national security as reasons for excluding the public from proceedings. To the extent that the Bill would limit the right to a public hearing under Article 14, the limitations are justified as they balance the need for transparent and impartial decision making against the need for privacy, the safety of parties and to protect national security.

Reviews on the papers

49. The Bill maintains the general principle of a right to a hearing. It also preserves the Tribunals' right to conduct a review on the papers. A review on the papers can only occur where it is apparent to the Tribunal that the review can be adequately determined on the evidence before it in the absence of the parties, and where the parties consent (section 34J of the AAT Act). The requirement for the consent of the parties means that the right to a fair hearing is not limited in circumstances where a review is conducted on the papers.

Right to minimum guarantees in proceedings of the accused in criminal trials in Article 14(3) of the ICCPR

50. Article 14(3) outlines the right to minimum guarantees for the determination of any criminal charge. Items 135 and 144 in Schedule 1 of the Bill would provide offences in the AAT Act (some of which would also be mirrored in the Migration Act by Schedule 2). The offences relate to disclosure of information contrary to a Tribunal order, failure to comply with summonses and contempt of the Tribunal. Existing offences relating to refusal to be sworn or to answer questions and giving false or misleading evidence have been preserved (sections 62 and 62A of the AAT, respectively). These offences pursue the legitimate aim of ensuring the amalgamated Tribunal is able to effectively exercise its statutory powers.

51. Further, the standard criminal defences in the Criminal Code Act 1995 (such as duress, and honest and reasonable mistake defences) and criminal trial procedures in the Judiciary Act 1903 and the Evidence Act 1995 would apply to charges in relation to these offences. Items 135 and 141 of Schedule 1 to the Bill insert protections from self-incrimination. This ensures the protection of the minimum guarantees is balanced with the need for the Tribunal to enforce its statutory powers. Further, the penalties for offences are reasonable, necessary and proportionate to that objective and have been standardised to create a more consistent approach.

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

52. Pursuant to Article 17 of the ICCPR, an interference with an individual's privacy must have a lawful basis and must not be arbitrary. That is to say, it must be in accordance with the provisions, aims and objectives of the ICCPR and be reasonable in the circumstances. Reasonable interferences with privacy are measures which are based on reasonable and objective criteria and which are proportionate to the purpose for which they are adopted. Article 16 of the CRC is drafted in similar terms to Article 17 of the ICCPR and prohibits the arbitrary or unlawful interference with the privacy of the child.

53. Items 74, 102 and 103 of Schedule 1 to the Bill contemplate the collection, use and storage of personal information as evidence for a Tribunal file. The powers of the amalgamated Tribunal to deal with personal information would engage the right to privacy of applicants. The amalgamated Tribunal would have rigorous mechanisms to protect personal information and other evidence (including confidentiality provisions in item 66 of Schedule 1 to the Bill). Protection of personal information-such as taxation, Centrelink or asylum-seeker information-is instrumental to upholding the integrity of the Tribunal.

54. Item 66 of Schedule 1 to the Bill clarifies existing AAT powers to give directions prohibiting or restricting the disclosure or publication of certain information and evidence. These non-disclosure and non-publication orders may apply to evidence or information given to the Tribunal and may extend to Tribunal members and staff. The general protections of the Privacy Act 1988 will also apply to information collected, used and stored by the amalgamated Tribunal. This includes prohibiting the collection of personal information unless the information is reasonably necessary for, or directly related to, the functions of the amalgamated Tribunal.

55. The interference with privacy in these circumstances is not arbitrary and is in pursuit of a legitimate purpose, namely for the Tribunal to come to the correct or preferable decision in its review of the primary decision.

56. Further, as noted above, the Bill would allow or require the amalgamated Tribunal to conduct hearings in private and/or restrict publication of decisions and reasons for a decision, where desirable. The Bill accordingly protects the rights to privacy in Article 17 of the ICCPR.

57. The Bill preserves the tribunals' summons powers and information-gathering powers. These powers allow the tribunals to compel the production of evidence from agencies and third parties. Evidence produced can often be of a private and personal nature and can engage with obligations of confidentiality-such as doctor-patient confidentiality. In such circumstances, the amalgamated Tribunal can rely on its non-disclosure and non-publication powers to limit access and publication of confidential material. In practice, this can mean the redaction of personal information prior to granting parties access.

Right to freedom of opinion and expression in Article 19 of the ICCPR

58. The Bill engages the rights under Article 19 of the ICCPR only tangentially in relation to the regulation of access to and disclosure of information.

59. The amalgamated Tribunal would have jurisdiction to review decisions relating to Freedom of Information (FOI). The amalgamated Tribunal would provide an avenue for reconsideration of administrative decisions to refuse access to material under FOI legislation. This role of the amalgamated Tribunal would promote the right of freedom of opinion and expression.

60. Item 225 of Schedule 1 to the Bill would empower the amalgamated Tribunal to issue non-disclosure orders where desirable, including in relation to confidential information. The non-disclosure power limits the right to freedom of opinion and expression. However, this limitation has a legitimate purpose of protecting sensitive and personal information and information that may affect national security.

61. The non-disclosure powers would be exercised only where necessary and reasonable. The amalgamated Tribunal would be required under section 35 (Item 66) to consider the principles that hearings should be public and that evidence should be made available to the public and the parties before ordering non-disclosure. The limitation would be proportionate to the objective as the amalgamated Tribunal can limit disclosure on a case-by-case basis and can specify which parts of the evidence or information cannot be disclosed.

The best interests of the child and the right of a child to express his or her opinion in Articles 3 and 12 of the Convention on the Rights of the Child (CRC)

62. New section 98A of the CSRC Act (Item 64 of Schedule 4 to the Bill) would preserve the current policy that evidence from children of parties is barred in proceedings that relate to the child, such as child support matters. The intention behind this policy is to protect the relationship between minor children and parents.

63. New section 98A replicates existing section 103H of the CSRC Act. It would clarify that the restriction relates to oral evidence before the amalgamated Tribunal and that the restriction applies to first and second review in the amalgamated Tribunal.

64. This section limits the rights of a child to be heard in any judicial and administrative proceedings that affect the child, as per Article 12 of the CRC. As noted above, the intention behind this policy is to protect the relationship between minor children and parents. The limitation is necessary to achieve a legitimate objective. As other forms of (non-oral) evidence from children of parties will be allowed, the limitation is proportionate and reasonable.

65. Any limitation to the right of a child to express his or her own views (under Article 12 of the CRC) is justified as it balances the need for transparent and impartial decision making against the need to protect family relationships and vulnerable children. Further, the objective of new section 98A would be to promote the best interests of a child, as per Article 3 of the CRC. This right is promoted by protecting the family relationships of a child in the course of a review by the amalgamated Tribunal.

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

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

67. The Bill would promote the right of access to justice for people with disability. Many of the users of the amalgamated Tribunal will be persons with disabilities, as the amalgamated Tribunal will have jurisdiction to review NDIS, disability support pension, workers compensation and veterans' appeal decisions, amongst other categories of decisions affecting persons with disabilities.

68. The amalgamated Tribunal's objectives of informality and fairness would support an accessible review mechanism (Item 1 of Schedule 1 to the Bill). The merits-review process usually sits between internal review by a government department or agency and judicial review. As such, it is the first external, and therefore wholly independent, review mechanism for persons seeking review.

69. The informality of the conduct of merits review distinguishes the process from judicial review. The amalgamated Tribunal would not be bound by legal technicalities or the rules of evidence when reviewing a decision. The conduct of hearings would not require court formalities and the amalgamated Tribunal may ask questions of witnesses and parties.

70. This flexibility and informality would allow the amalgamated Tribunal to adapt to the differing needs of persons with disabilities and to promote their right of access to justice.

Conclusion

71. The Bill is compatible with human rights. It advances the protection of human rights, specifically the right to an effective remedy, the right to a fair hearing, and the right of access to justice for persons with disabilities. To the extent that the Bill limits any human rights, those limitations are reasonable, necessary and proportionate.

Senator the Honourable George Brandis QC, Attorney-General