House of Representatives

Explanatory Memorandum

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

Schedule 9 - transitional and saving provisions

Overview

1968. Schedule 9 to the Bill would provide application, transitional and saving provisions to transfer arrangements relating to the establishment and membership structure from the existing tribunals to the amalgamated Tribunal, as well as to ensure that proceedings not yet finalised, or not yet commenced, are transferred to the amalgamated Tribunal without disruption.

1969. Key arrangements include provisions to:

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preserve the appointments, remuneration and terms and conditions of existing members of each of the tribunals and to preserve the appointment of the Registrar

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preserve authorisations and powers of existing members and certain officers of the tribunals

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preserve rights to apply for merits review, including rights to apply for an extension of time in which to apply for merits review (however, duplicate applications would be prohibited)

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clarify that the new law-the AAT Act and the Acts conferring jurisdiction on the AAT, as amended by the Bill-would apply from commencement, including in relation to proceedings commenced and Tribunal decisions made before that date, subject to limited exceptions

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transfer proceedings on foot in the MRT-RRT and SSAT to the AAT and to preserve the validity of anything done by the Tribunals, or by other persons, in relation to those proceedings

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in particular, the validity of directions and orders issued by the AAT, MRT-RRT, and SSAT, including practice directions and directions in relation to specific proceedings would be preserved, and

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the notices or documents issued to persons would remain valid and sufficient to meet any statutory notification requirements, including notices issued after commencement that may refer to the discontinued Tribunals (this is necessary since technical changes to Departmental notification systems may take some months)

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ensure the continued existence of the IAA within the AAT and to preserve the validity of all things done in relation to IAA reviews confirm that registries of the discontinued Tribunals would be taken to be registries of the AAT, and

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create a time-limited regulation making power to allow more prescriptive transitional arrangements to be made where necessary.

1970. The arrangements in Schedule 9 which would apply to members of the AAT, MRT-RRT and SSAT would do so only with respect to current members whose term of appointment would extend beyond the date of amalgamation. These arrangements would not apply to persons who are appointed or reappointed as members of the amalgamated Tribunal on and from the day of amalgamation.

1971. Schedule 9 would refer to the MRT and RRT as separate tribunals despite the fact that both tribunals have identical membership and operate as a single agency for the purposes of the PGPA Act and the Public Service Act. These references reflect the separate legislative basis upon which the MRT and RRT were established.

Part 1 - Preliminary

Item 1 - Definitions

1972. This Item would define several terms for the purposes of Schedule 9.

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'AAT' would be defined as Administrative Appeals Tribunal as established by the AAT Act. The term would be used in Schedule 9 interchangeably to refer to the AAT prior to amalgamation and the amalgamated Tribunal.

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'AAT Act' would be defined as the Administrative Appeals Tribunal Act 1975.

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'affected law' would be defined to mean an Act that would be amended by the Bill and would include an instrument made under such an Act.

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'commencement day' would be defined to mean 1 July 2015, the date on which the amalgamated Tribunal would commence.

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'Deputy Principal MRT member' would be defined to mean the officer who has been appointed as the Deputy Principal Member of the MRT as defined under existing section 337 of the Migration Act who, in practice, is also the Deputy Principal RRT member.

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'Deputy Principal RRT member' would be defined to mean the officer who has been appointed as the Deputy Principal Member of the RRT as defined under existing section 410 of the Migration Act who, in practice, is also the Deputy Principal MRT member.

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'Deputy Principal SSAT member' would be defined to mean a Deputy Principal Member of the SSAT as provided by existing Schedule 3 to the SSA Act.

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'discontinued Tribunal' would be defined to mean the MRT, RRT or SSAT.

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'existing MRT member' would be defined to mean an officer who, but for the amalgamation, would have continued to be a Deputy Principal MRT member, a senior MRT member or an MRT member.

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'existing RRT member' would be defined to mean an officer who was, immediately before commencement day, a Deputy Principal RRT member, a senior RRT member or an RRT member.

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'existing SSAT member' would be defined to mean an officer was, immediately before commencement day, a Deputy Principal SSAT member, a senior SSAT member or an SSAT member.

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'MRT' would be defined to mean the Migration Review Tribunal as established by existing section 394 of the Migration Act.

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'MRT member' would be defined to mean all statutory office holders referred to in existing paragraph 395(c) of the Migration Act (which does not include the Principal Member, Deputy Principal Member and Senior Members appointed in accordance with that section).

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'officer' would be defined, in relation to the SSAT, as a person who performs functions or exercises powers of the SSAT or performs duties for the SSAT. No definition of 'officer' is necessary for the MRT-RRT, as there is an existing defined term under section 5 of the Migration Act.

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'President of the AAT' would be defined to mean the President of the Administrative Appeals Tribunal.

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'proceeding' would be defined to include any of the following:

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an application or purported application made to a discontinued Tribunal under an Act

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a matter referred to a discontinued Tribunal for inquiry or review under an Act, or

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an incidental application to a discontinued Tribunal made in the course of, or in connection with, an application or proposed or purported application or matter. A reference to a 'proceeding' before a Tribunal would include a reference to an application made or matter referred to a Tribunal.

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'RRT' would be defined to mean the Refugee Review Tribunal as established by existing section 457 of the Migration Act.

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'RRT member' would be defined to mean all statutory office holders referred to in existing paragraph 458(1)(c) of the Migration Act (which does not include the Principal Member, Deputy Principal Member and Senior Members appointed in accordance with that section).

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'senior MRT member' would be defined to mean a Senior Member of the MRT as characterised by existing section 337 of the Migration Act.

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'senior RRT member' would be defined to mean a Senior Member of the RRT as characterised by existing Division 9 of Part 7 of the Migration Act.

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'senior SSAT member' would be defined to mean a Senior Member as characterised by existing Schedule 3 to the SSA Act.

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'SSAT' would be defined to mean the Social Security Appeals Tribunal as established by existing section 139 of the SSA Act.

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'SSAT member' would be defined to mean all statutory office holders referred to in existing paragraph 1(c) of Schedule 3 to the SSA Act (which does not include the Principal Member, Deputy Principal Members, Senior Members and Assistant Senior Members appointed in accordance with the SSA Act).

Item 2 - Continuing the AAT

1973. Item 2 would clarify that the amendments to section 5 of the AAT Act that would be made by Item 15 of Schedule 1 would not affect the continued existence of the AAT.

Part 2 - Tribunal members and certain officers

Item 3 - Transitional-members of the AAT (Judges)

1974. Item 3 would provide a framework to preserve and transition existing AAT members who are Judges to the amalgamated Tribunal under the new membership structure. Item 17 of Schedule 1 to the Bill would provide that a Judge appointed as a member of the amalgamated Tribunal would be appointed as the President or as a Deputy President. As a consequence Judges appointed as a presidential member other than the President would be taken to hold office as a Deputy President.

1975. Subitems 3(2) and (3) would transition all existing members that are Judges, other than the President, over into the new office of 'Deputy Presidents' of the amalgamated Tribunal for the remainder of their current Tribunal appointment.

1976. Subitem 3(4) would preserve and transition arrangements for a Judge who is holding office as the Acting President of the AAT immediately before the date of amalgamation.

1977. Subitem 3(5) would explicitly provide that there is no intention to affect the tenure, remuneration, or rights and privileges of judicial members of the AAT through transitioning their appointments to the amalgamated Tribunal.

1978. No equivalent arrangements are required for the MRT-RRT and SSAT as neither of these tribunals has members that are also Judges.

Item 4 - Transitional-members of the AAT (other than Judges)

1979. Item 4 would provide a framework to preserve and transition the appointments of AAT members who are not Judges from the existing AAT to the amalgamated Tribunal.

1980. Subitem 4(1) provides that the transitional arrangements in the Item would apply to all non-judicial members of the AAT, including acting members, who were members immediately before the commencement of this Bill.

1981. Subitems 4(2) and (3) would provide that a member holds their existing office for the remaining balance of their appointment as either a part-time, full-time or acting member as relevant.

1982. Subitems 4(4) and (5) would preserve the existing terms and conditions for members of the AAT, with transitional arrangements for remuneration separately covered in subitems 4(6) and (7). Subitem 4(4) would transition terms and conditions applicable immediately before the day of amalgamation over to the first day of amalgamation. Subitem 4(5) would allow the Minister to determine different terms and conditions for AAT members during their appointment consistent with paragraph 8(7) of the AAT Act as amended by Item 21 of Schedule 1.

1983. Subitems 4(6) and (7) would provide a framework to preserve an AAT member's office for the balance of their appointment for the purposes of Remuneration Tribunal determinations, notwithstanding the new membership structure in subsection 6(3) of the AAT Act as amended by Item 17 of Schedule 1 to the Bill. The subitems would preserve existing Remuneration Tribunal determinations made with respect to an existing office to which an AAT member has been appointed while preserving the Remuneration Tribunal's powers to vary the determination or substitute the determination with an updated determination as though the office still existed. This framework would provide the Remuneration Tribunal with flexibility to update remuneration determinations following amalgamation (for example, to provide regular pay rises), while maintaining the various offices for remuneration purposes for the period of the existing appointments to provide certainty for existing AAT members.

Item 5 - Transitional-members of the MRT, RRT and SSAT

1984. Item 5 would provide a framework to preserve and transition the appointments of MRT-RRT and SSAT members from the MRT-RRT and SSAT to the amalgamated Tribunal.

1985. Subitem 5(1) provides that the transitional arrangement in this item would apply to tribunal members as listed in column 1 of the table in subitem 5(2) or persons acting as such members.

1986. Subitem 5(2) would transition the listed MRT-RRT and SSAT members as either senior members or members of the amalgamated Tribunal for the purposes of the AAT Act as amended by this Bill. This transitional arrangement would be separate to those for remuneration and terms and conditions which would be transitioned according to subitems 5(4) to (7). This arrangement would be consistent with the arrangement that would be provided to existing AAT members under subitem 4(2).

1987. Subitem 5(3) would preserve the existing classifications of MRT-RRT and SSAT members as full-time, part-time or acting members. These classifications would not be affected by the amalgamation. This arrangement would provide an equivalent arrangement to that which would be provided to existing AAT members under subitem 4(3).

1988. Subitems 5(4) and (5) would preserve the existing terms and conditions for members of the MRT-RRT and SSAT, noting that transitional arrangements for remuneration would be separately covered in subitems 5(6) and (7). Subitem 5(4) would transition terms and conditions applicable immediately before the day of amalgamation over to the first day of amalgamation. Subitem (5) would allow the Minister to determine different terms and conditions for MRT-RRT and SSAT members at any time during their appointment consistent with paragraph 8(7) of the AAT Act as amended by Item 21 of Schedule 1 to the Bill.

1989. Subitems 5(6) and (7) would provide a framework to preserve the office of an MRT-RRT or SSAT member mentioned in column 1 of the table in subitem 5(2) for the balance of their appointment with respect to Remuneration Tribunal determinations, notwithstanding the new membership structure in subsection 6(3) of the AAT Act as amended by Item 17 of Schedule 1 to the Bill. The subitems would preserve existing Remuneration Tribunal determinations made with respect to an existing office to which an MRT-RRT or SSAT member has been appointed while preserving the Remuneration Tribunal's powers to vary the determination or substitute the determination with an updated determination. This framework would provide the Remuneration Tribunal with flexibility to update remuneration determinations following amalgamation, while maintaining the various offices, for the purposes of determining remuneration, for the period of the existing appointments to provide certainty for existing MRT-RRT and SSAT members.

Item 6 - Transitional-powers of transitioned members

1990. Item 6 would provide a framework to provide for the transition of powers that can be exercised by members of the AAT, MRT-RRT and SSAT for the purposes of the operation of the AAT Act and any other Act on and from the day of amalgamation.

1991. Subitem 6(a) would provide that a person, who would be taken to be the President of the AAT by Item 3 of this Schedule, would on and after amalgamation, have the powers and functions of the President of the amalgamated Tribunal.

1992. Subitem 6(b) would provide that persons who would be taken to be Deputy Presidents by Item 3 or 4 of this Schedule would on and after amalgamation have the powers and functions of a Deputy President of the amalgamated Tribunal.

1993. Subitem 6(c) would provide that persons who would be taken to be senior members of the AAT by Item 4 or 5 of this Schedule would on and after amalgamation have the powers and functions of a senior member of the amalgamated Tribunal.

1994. Subitem 6(d) would provide that persons who would be taken to be members of the AAT by Item 4 or 5 of this Schedule would on and after amalgamation have the powers and functions of a member of the amalgamated Tribunal.

Item 7 - Transitional-members of multiple tribunals

1995. Item 7 would provide arrangements to transition existing persons who are members of more than one of the tribunals to be amalgamated.

1996. Subitem 7(1) would provide that the Item applies to persons who are members of:

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both the AAT and either the SSAT or the MRT-RRT, or

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both the SSAT and MRT-RRT.

1997. Subitem 7(2) would provide that the person would hold the office on the remuneration and terms and conditions corresponding to the office that would provide the highest level of remuneration for a period of time corresponding to the longest period of time remaining with respect to either appointment.

Item 8 - Transitional-assignment of AAT members to new AAT Divisions

1998. Item 8 would preserve and transition the assignments of existing AAT members to Divisions of the amalgamated Tribunal as created by new section 17A of the AAT Act (Item 27 of Schedule 1).

Item 9 - Transitional-assignment of existing MRT-RRT and SSAT members to AAT Divisions

1999. Item 9 would provide arrangements to transition and assign existing MRT-RRT members to the Migration and Refugee Division and existing SSAT members to the Social Services and Child Support Division of the amalgamated Tribunal.

Item 10 - Saving of authorisation of members of the AAT

2000. Item 10 would provide arrangements to save the authorisations of AAT members who have been authorised under the following existing provisions of the AAT Act that would be amended or renumbered by Schedule 1 to this Bill in the following way:

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subsection 21(1A)-replaced with subsection 19B(2) by Item 27 of Schedule 1

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subsection 40(1C)-replaced with subsection 40A(2) by Items 100 and 103 of schedule 1, and

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Subsection 40(ID)-replaced with subsection 40B(1) by Items 100 and 103 of Schedule 1.

Item 11 - Transitional-outside employment for current members

2001. Item 11 would provide arrangements to preserve all approvals and consents with respect to undertaking outside employment in concurrence with their tribunal membership for existing AAT, MRT-RRT and SSAT members.

Item 12 - Savings-removal from office provisions

2002. Item 12 would provide arrangements to preserve existing removal from office provisions and mechanisms with respect to AAT, MRT-RRT and SSAT members. This would provide that existing members would continue to be subject to the same conditions with respect to removal from office that they were subject to prior to at the time of their appointment. This provides certainty and preserves a core condition of existing appointments.

Item 13 - Transitional-appointment etc. of Registrar

2003. Item 13 would preserve the office and the terms and conditions of the AAT Registrar for the balance of that person's appointment. A new AAT Registrar was appointed on 7 April 2015 for a period of five years, which will continue for a period well after the commencement date. Subitem 13(3A) would accordingly provide flexibility to the Minister to vary the terms and conditions of the AAT Registrar in writing (other than those dealt with in subitem 13(3B)). It is not necessarily expected that this would occur. Subitem 13(3B) would preserve the remuneration and allowances paid to the Registrar under the Remuneration Tribunal determination in place prior to amalgamation, until another determination comes into operation in substitution for it. Subitem 13(4) would preserve the existing termination of office provisions with respect to the AAT Registrar appointed prior to amalgamation for the rest of that person's appointment.

Item 14 - Transitional-District Registrars, Conference Registrars and Deputy Registrars

2004. Item 14 would provide arrangements to transition existing District Registrars, Conference Registrars and Deputy Registrars of the AAT over to the amalgamated Tribunal as officers of the Tribunal under section 24PA of the AAT Act as inserted by Item 36 of Schedule 1.

Item 15 - Transitional-authorised Conference Registrars

2005. Item 15 would provide arrangements to transition authorised Conference Registrars over to the amalgamated Tribunal as authorised officers under paragraph 33(2)(a) of the AAT Act as amended by Item 56 of Schedule 1.

Part 3 - Review of decisions

2006. Items 15AA to 15AG in Part 3 would provide general rules for the continuation of proceedings that have not been finalised at commencement day, including ensuring the validity of things done prior to commencement day in relation to such proceedings.

Item 15AA - General provision-application of amendments from commencement day

2007. Item 15AA would provide the general rule that, except where otherwise provided in Schedule 9, the new law (the amendments made by the Bill) would apply from commencement day onwards, including in relation to proceedings commenced before commencement day and decisions made before commencement day. This approach is the most administratively straightforward, as otherwise the amalgamated Tribunal and persons involved in merits review would be required to apply different versions of the law depending on when their proceeding was commenced. Departures from this general rule are provided where appropriate to preserve the rights of applicants or other persons participating in merits review (see, for example, Item 15BF).

2008. Item 15AA has the effect that from commencement day, the amalgamated AAT may exercise any of the powers available to it under the Bill in relation to applications on foot. The rights and obligations of individuals under the new law will also apply. For example, from commencement day, a person who wishes to seek judicial review in relation to a decision of the SSAT before commencement day in a child support matter will be required to appeal to the Federal Court or the Federal Circuit Court under subsection 44(1) or new section 44AAA of the AAT Act (Item 129 of Schedule 1 to the Bill). Appeals lodged prior to commencement day with any court with jurisdiction under Division 3 of Part VIII of the CSRC Act (which would be repealed by the Bill) would be preserved under paragraph 7(2)(e) of the Acts Interpretation Act 1901.

2009. To avoid retrospective penalties applying to persons, subitem 15AA(2) would specifically provide that an amendment or insertion of an offence by the Bill would not apply in relation to conduct engaged in before commencement day.

Item 15AB - General provision-continuation in AAT of proceedings before discontinued Tribunals

2010. Item 15AB would provide for the transfer of proceedings on foot in discontinued Tribunals as at commencement day to the AAT and would preserve the validity of things done (and require or permit the doing of things not yet done) in relation to those proceedings.

2011. Pursuant to subitem 15AB(2), proceedings before the MRT or RRT would be continued in the Migration and Refugee Division of the AAT. Proceedings before the SSAT would be continued in the Social Services and Child Support Division of the AAT. Except for proceedings that are not proceedings for review of a decision, those SSAT proceedings would be taken to be applications for AAT first review within the meaning of the Act that authorised the application. The consequences of designation as an AAT first review include the application of certain procedural rules and in some cases the right to apply for AAT second review following the decision on first review. Proceedings that are not proceedings for review of a decision (for example, proceedings on an application for an extension of time, or proceedings seeking reinstatement of a dismissed application) would not be taken to be applications for AAT first review, since it is not appropriate that these consequences automatically flow.

2012. Subitem 15AB(3) would preserve the validity of things done by a discontinued Tribunal or a member or officer of a discontinued Tribunal in relation to a proceeding on foot before commencement day (including preserving the time the thing was done). From commencement day, such things would be taken to be done, at the time they were done, by the AAT or a member or officer of the AAT for the purposes of the continued proceeding.

2013. Subitem 15AB(4) would preserve the validity of things done by an applicant, another party or any other person for the purposes of a proceeding on foot in a discontinued Tribunal before commencement day (including preserving the time the thing was done). From commencement day, such things would be taken to have been done, at the time they were done, by the person for the purposes of the continued proceeding before the AAT.

2014. By providing for continuity of proceedings and actions taken in relation to proceedings, the general rules in subitems 15AB(1)-(4) would minimise disruption to merits review and inconvenience or uncertainty for persons involved in a proceeding before a discontinued Tribunal. Subitems 15AB(5)-(8) are examples of specific applications of the preceding general rules and are not intended to limit their interpretation.

2015. Subitem 15AB(5) would provide that if, before commencement day, a discontinued Tribunal or member or officer of a discontinued Tribunal had not yet met a requirement, or responded to a request or invitation to do something, under an affected law in relation to a proceeding, then the AAT or a member or officer of the AAT must meet the requirement or may respond to the request or invitation in relation to the continued proceeding, except if the law as amended by the Bill no longer imposes the requirement or issues the request or invitation.

2016. Subitem 15AB(6) would provide that if, before commencement day, a person had not yet met a requirement, or responded to a request or invitation to do something, under an affected law in relation to a proceeding in a discontinued Tribunal, then the person must meet the requirement or may respond to the request or invitation in relation to the continued proceeding, except if the law as amended by the Bill no longer imposes the requirement or issues the request or invitation.

2017. Subitems 15AB(7)-(8) concern the giving and receiving of notices or documents in relation to proceedings in discontinued Tribunals. Certainty on these matters is important, as the receipt of valid notices can have significant consequences, including (for example) in relation to timeframes for applying for second merits review or judicial review.

2018. Subitem 15AB(7) would preserve the validity of notices and documents given to persons prior to commencement day in relation to proceedings in a discontinued Tribunal. If before commencement day, a discontinued Tribunal or a member or officer of a discontinued Tribunal had met a requirement imposed by an affected law to give a notice or document to a person, then from commencement day that requirement is taken to have been met by the AAT or a member or officer of the AAT. The document or notice is taken to have been given at the same time the requirement was met before commencement day.

2019. Subitem 15AB(8) would provide that if, before commencement day, a person had received a notice or document from a discontinued Tribunal or a member or officer of a discontinued Tribunal, then from commencement day the person is taken to have received the notice or document at the same time from the AAT or a member or officer of the AAT.

2020. Subitem 15AB(9) would provide that Item 15AB only applies to the extent it is not inconsistent with another item in Schedule 9 (other than Item 15AC). This is because Item 15AB provides general rules which are subject to exceptions on specific matters dealt with elsewhere in Schedule 9. Item 15AC would not override Item 15AB, because Item 15AC is also a general rule and it is intended to apply only where Item 15AB does not.

Item 15AC - General provision-operation of affected law in relation to things done etc, before commencement day

2021. Item 15AC would provide a catch-all rule to preserve the validity of things done before commencement day. It would apply only to the extent to which Item 15AB (which is more specific) would not apply (subitem 15AB(9)).

2022. Subitem 15AC(1) would provide that from commencement day:

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a reference to a decision that is reviewable by the AAT includes a reference to a decision made before commencement day that was reviewable by a discontinued Tribunal, and

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a reference to a decision made or other thing done by or in relation to the AAT includes a reference to a decision made or other thing done before commencement day by or in relation to a discontinued Tribunal.

2023. These rules would ensure that the new law (as amended by the Bill) will be read to include things done prior to commencement day, which would preserve rights and obligations that accrued in relation to discontinued Tribunals and facilitate the application of the new law in respect of those rights and obligations.

2024. Subitem 15AC(2) would clarify that subitem 15AC(1) is to be read broadly and its application does not depend on the AAT being referred to expressly or by that exact expression.

2025. Subitem 15AC(3) would provide a specific example of the general rules in subitem 15AC(1). It would preserve the right of a person to make an application to the AAT after commencement day if that person had a right to apply for review of a decision by the AAT or a discontinued Tribunal before commencement day. Subitem 15AC(3) is not intended to limit the interpretation of subitem 15AC(1).

2026. Subitem 15AC(4) would confirm, for the avoidance of doubt, that neither paragraph 15AC(1)(a) nor subitem 15AC(3) of itself would authorise the making of an application to the AAT for review of a decision. In particular, these provisions would not authorise the making of duplicate applications for review (for example, there would be no new right to have an application that has already been finally determined by a discontinued Tribunal heard by the AAT).

Item 15AD - Duplicate applications for review

2027. Item 15AD would prevent the making of duplicate applications for merits review and the making of applications for review out of time (where no time extension is permissible).

2028. Subitem 15AD(1) concerns duplicate applications. It would provide that a person may not make an application to the AAT for review of a decision on or after commencement day if the person had made an application or a purported application to a discontinued Tribunal for review of the decision before commencement day.

2029. Subitem 15AD(2) concerns applications made out of time. It would provide that a person may not make an application to the AAT for review of a decision on or after commencement day if the time limit for applying for review (if any) has expired, and there is no enactment that would permit the AAT to extend the time in which the person may apply for review.

2030. The purpose of Item 15AD is to ensure that the Bill does not introduce additional rights to seek review that would not otherwise be available. It is not intended that any existing rights to seek review are curtailed. In particular, subitem 15AD(3) would confirm that Item 15AD does not prevent a person making an application for AAT second review at the conclusion of a proceeding for AAT first review that is continued in the Social Services and Child Support Division of the AAT by virtue of paragraph 15AB(2)(c).

Item 15AE - Notices referring to discontinued Tribunal

2031. Item 15AE concerns notices given either before or after commencement day that advise persons of their right to apply for review to a discontinued Tribunal, where the last day for the person to apply is after commencement day or there is no time limit for applying.

2032. Subitem 15AE(2) would ensure that such a notice is taken to meet any requirement after commencement day that a person must be given notice of their right to apply for review to the AAT.

Item 15AF - Continuation of Immigration Assessment Authority

2033. Item 15AF would deal with the IAA. The Bill would have the effect that the IAA would be established from commencement day within the AAT rather than the RRT. Item 15AF would confirm that this would not affect the continued existence of the IAA after commencement day, reviews being conducted by the IAA immediately before commencement day, or the ongoing effect from commencement day of anything else done before commencement day by or in relation to the IAA, its Principal Member or a reviewer.

Item 15AG - Remission of discontinued Tribunal decisions

2034. Item 15AG would ensure that if, after commencement day, a court decides to remit for reconsideration a decision of a discontinued Tribunal, the decision is to be remitted to the AAT. This would provide certainty to the courts in light of the abolition of the MRT-RRT and SSAT.

Part 4 - Matters specific to particular Acts

2035. Items 15BA to 15BT would provide for various matters specific to particular Acts.

Item 15BA - Relationship between this Part and Part 3

2036. Item 15BA would provide that an item in Part 4 that has the same effect as an item in Part 3 in relation to a matter does not limit the operation of the item in Part 3 in relation to any other matter.

2037. This Item clarifies the relationship between Part 3 and Part 4 by stipulating that the items in Part 4 do not limit the operation of items in Part 3. This clarification is necessary because the items in Part 3 provide for general rules and some of the items in Part 4 are, in effect, examples of the operation of these rules. It is not intended that the examples in Part 4 should be read as narrowing or otherwise affecting the interpretation of the general rules in Part 3.

Item 15BB - Continued protection of confidential information of discontinued Tribunals

2038. Item 15BB would continue the operation of existing sections 377 and 439 of the Migration Act and clause 19 of Schedule 3 to the SSA Act in relation to information or documents obtained by a person prior to commencement day.

2039. Sections 377 and 439 of the Migration Act have the effect that a person who has obtained confidential information in the course of their duties at the MRT or RRT can only make a record of or communicate that information for the purposes of the Migration Act or for the purposes of their powers or duties under that Act. It is an offence to unlawfully disclose such confidential information. Sections 377 and 439 further provide that persons to whom those sections apply are not required to produce confidential information to a court (as defined in those sections).

2040. Clause 19 of Schedule 3 to the SSA Act has the effect that a person who has obtained personal information in the course of their powers or duties at the SSAT under the social security, family assistance or student assistance law can only make a record of or communicate that information for the purposes of those laws or their powers or duties under those laws. Clause 19 of Schedule 3 further provides that such persons are not required to produce confidential information to a court (as defined in that clause).

2041. The Bill would repeal sections 377 and 439 of the Migration Act and clause 19 of Schedule 3 to the SSA Act, on the basis that these obligations are adequately covered by the Privacy Act 1988 which will apply to the amalgamated Tribunal. For certainty and continuity, Item 15BB would ensure that the protections in relation to confidential information that currently apply in relation to the MRT-RRT and the SSAT continue in relation to information obtained prior to 1 July 2015 despite the abolition of these tribunals.

Item 15BC - Changes to AAT Divisions

2042. Item 15BC would ensure that:

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a proceeding before the General Administrative Division of the AAT immediately before commencement day is taken to be a proceeding before the General Division of the AAT from commencement day

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a proceeding before the Security Appeals Division of the AAT immediately before commencement day is taken to be a proceeding before the Security Division of the AAT from commencement day, and

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a proceeding before the Taxation Appeals Division of the AAT (including that Division when known as the Small Taxation Claims Tribunal) immediately before commencement day is taken to be a proceeding before the Taxation and Commercial Division of the AAT from commencement day.

2043. This Item is necessary because Item 17A of the Bill would create the Divisions of the amalgamated AAT, and it is intended that the work of the existing General Administrative Division, Security Appeals Division and Taxation Appeals Division would be carried on by the appropriate new Divisions.

Item 15BD - Small Taxation Claims Tribunal

2044. Item 15BD would provide that paragraphs 24AD(2)(b) and (c) and subsection 24AD(3) of the AAT Act continue to apply after commencement day in relation to an application for review, where an order under subsection 24AD(1) is in force in relation to the application prior to commencement day.

2045. Subsection 24AD(1) of the AAT Act permits the Tribunal to order that an application is not to be heard in the Small Taxation Claims Tribunal where the Tribunal considers that the amount of tax in dispute is not less than $5,000. Where such an order is made, the application is to be heard in the Taxation Appeals Division. Paragraphs 24AD(2)(b) and (c) and subsection 24AD(3) of the AAT Act provide that the Tribunal must not proceed with, and may dismiss (and reinstate if necessary), the application until the appropriate fee is paid.

2046. Item 15BD would preserve these provisions in relation to proceedings before the Small Taxation Claims Tribunal before 1 July 2015 in respect of which an order under subsection 24AD(1) has been made. This is necessary since Item 27 of Schedule 1 to the Bill would repeal Part IIIA of the AAT Act, and the Small Taxation Claims Tribunal would no longer exist.

Item 15BE - Continuation of provisions regarding presiding members

2047. Item 15BE would ensure that a person who is presiding in relation to a proceeding before the AAT before commencement day because of paragraphs 21AB(9)(a), (b) and (c); paragraphs 22(1)(a), (aa) or (b); or subparagraph 22(1)(c)(i) of the AAT Act would continue to preside in relation to the proceeding after commencement day.

2048. Subsection 21AB(9) and section 22 of the AAT Act provide rules to determine which member shall preside at a hearing where more than one member constitutes the Tribunal. Paragraphs 21AB(9)(a), (b) and (c); paragraphs 22(1)(a), (aa) or (b); and subparagraph 22(1)(c)(i) determine who is to preside based on the seniority of the members involved, and without requiring a direction from the President. Item 27 of the Bill would repeal subsection 21AB(9) and section 22 and replace them with new section 19A, a simplified provision which would permit the President to give written directions in relation to who is to preside.

2049. Item 15BE would ensure that the President need not make directions under the new section 19A in relation to proceedings where the Tribunal has been constituted as a multi-member tribunal prior to commencement day on the basis of the old provisions.

Item 15BF - Limit on new AAT powers in relation to agreements

2050. Item 15BF would provide that subsections 34D(4) and 42C(5) of the AAT Act as amended by the Bill do not apply to decisions made by the AAT before commencement day. These subsections would provide new powers to the Tribunal to vary or revoke a decision that reflects the agreement of the parties, whether reached through an alternative dispute resolution process or at any other stage of the proceeding, provided that the parties consent to the variation or revocation.

2051. Item 15BF is a departure from the general rule in Item 15AA that the amendments apply in relation to decisions made before commencement day. This is appropriate to promote finality and prevent the reopening of reviews that have been resolved under the AAT Act prior to these new powers being conferred on the Tribunal.

Item 15BG - Notices and summonses under amended provisions of AAT Act

2052. Item 15BG would preserve the validity of notices, certain orders and summonses issued by the AAT before commencement day.

2053. Subitem 15BG(1) would deal with notices given to decision-makers to inform them of applications for review. It would provide that where the AAT has given such a notice under subsection 29(11) of the AAT Act before commencement day, the notice is taken to have been given, at the time it was given, under new section 29AC of the AAT Act (as inserted by Item 51 of Schedule 1 to the Bill).

2054. Subitem 15BG(2) would deal with orders to decision makers to lodge an additional statement containing further and better particulars in relation to their decision and reasons. It would provide that where the AAT has made such an order under section 38 of the AAT Act before commencement day, and the time specified in the order for lodging the additional statement has not ended before commencement day, the order will continue in effect after commencement day, and is taken to be an order under new section 38 (as amended by Item 87 of Schedule 1 to the Bill).

2055. Subitem 15BG(3) would deal with summonses issued under subsection 40(1A) of the AAT Act. It would provide that where the AAT has issued a summons before commencement day, and compliance with the summons will fall due after commencement day, the summons will continue in effect after commencement day and is taken to be a summons under new section 40A of the AAT Act (as inserted by Item 103 of Schedule 1 to the Bill).

2056. As a consequence of subitem 15BG(3), amended section 61 of the AAT Act (the offence of failure to comply with a summons) would apply in relation to summonses issued before commencement day, provided that the conduct that constituted a breach of the summons occurred after that date (see subitem 15AA(2)). This approach is simpler than preserving summonses under the old provisions and will not disadvantage persons to whom summonses are issued. Most summonses in the AAT are directed to entities that have established mechanisms for managing them, including negotiating suitable timeframes for compliance.

2057. The validity of summons-type orders issued by the discontinued Tribunals prior to commencement day would be preserved under Item 15CD.

Item 15BI - Ongoing requirement for lodging material documents with AAT

2058. Item 15BI would provide that new section 38AA of the AAT Act (inserted by Item 87 of Schedule 1 to the Bill) would apply in relation to documents obtained by a person on or after commencement day. Section 38AA would impose an obligation on administrative decision makers whose decisions are the subject of an application for review by the Tribunal (including second review) to lodge with the Tribunal a copy of any document that comes into their possession that is relevant to the review and has not been lodged previously. The obligation is ongoing until the Tribunal determines the review.

2059. Subitem 15BI(2) would provide that section 38AA would apply in relation to documents obtained by a person before commencement day if immediately before commencement day that person was subject to a requirement to give documents to the SSAT, that requirement had not been met and (pursuant to Item 15AB) is continued in relation to a proceeding continued in the AAT. The purpose of subitem 15BI is to continue the obligation on decision makers in subsections 157(5) of the SSA Act, 95(5) of the CSRC Act, 119(5) of the FAA Act and 232(5) of the PPL Act, which would be repealed by the Bill.

Item 15BJ - Application for reinstatement

2060. Item 15BJ would have the effect that the amendments to section 42A of the AAT Act in relation to the reinstatement of an application would apply regardless of when the application was dismissed. These amendments (Items 114 and 115 of Schedule 1 to the Bill) would have the effect that any person who was a party to a proceeding that has been dismissed may apply for reinstatement, and that the Tribunal can extend time for making an application for reinstatement beyond the 28 day rule currently in subsection 42A(8) of the AAT Act.

2061. The approach in Item 15BJ is the most beneficial for parties. Whether or not such an application would be successful would depend on the merits of the application and the reasons for the delay in seeking reinstatement.

Item 15BK - Changes to penalties in the AAT Act

2062. Item 15BK would provide that the offence provisions in the AAT Act-sections 61, 62, 62A, 62B and 63-as in force before commencement day would continue to apply after commencement day in relation to conduct engaged in before commencement day. This would avoid the retrospective application of the new or amended offence provisions in the Bill.

Item 15BL - Section 67 of the AAT Act

2063. Item 15BL would provide that regulations made before commencement day for the purposes of section 67 of the AAT Act would continue in force after commencement day in relation to summonses issued before commencement day. Section 67 authorises the making of regulations dealing with fees and entitlements to be paid to witnesses for complying with a summons. Item 15BL would accordingly preserve the rights of such witnesses under the rules in place at the time the summons was issued.

Item 15BM - Character of privative clause and other decisions under the Migration Act 1958

2064. Item 15BM would provide that decisions made prior to commencement day that fall within the scope of the statutory definitions for privative clause decisions, purported privative clause decisions or non-privative clause decisions continue to be within the scope of those definitions, and that the consequences of falling within those definitions will also continue.

2065. The purpose of Item 15BM is to confirm that the amendments proposed by the Bill to the Migration Act would not alter the character of decisions that have already been made and to ensure that the litigation-related provisions in Parts 8, 8A and 8B of the Migration Act that apply to those types of decisions would continue to apply. Item 15BM is also intended to clarify that the changes to the list of non-privative clause decisions in subsection 474(4) of the Migration Act do not change judicial review rights for decisions made before commencement day.

Item 15BN - Sections 351 and 417 of the Migration Act 1958

2066. Item 15BN would provide that the Minister for Immigration and Border Protection can exercise the powers in sections 351 and 417 of the Migration Act after commencement day in relation to decisions of a discontinued Tribunal before commencement day. The purpose of this Item is to clarify that the Minister can substitute a decision by a discontinued Tribunal for one that is more favourable to the applicant, where the Minister considers that it is in the public interest to do so.

Item 15BO - Sections 477, 477A and 486A of the Migration Act 1958

2067. Item 15BO would provide that if a particular date is taken to be the date a decision is made prior to commencement day under the existing definition of date of a migration decision in subsection 477(3) of the Migration Act, that date will continue to be taken to be the date of the decision after commencement day.

2068. The purpose of this Item is to ensure that the date a decision by a discontinued Tribunal is taken to have been made will continue to be the same as it would otherwise have been, so that the time limits on applications for judicial review will not be affected by the Bill.

Item 15BP - Section 486D of the Migration Act 1958

2069. Item 15BP would clarify that references to a tribunal decision in section 486D of the Migration Act include references to a decision made before commencement day by the MRT, the RRT or the IAA as established within the RRT. The purpose of this Item is to ensure that the requirement for applicants seeking judicial review of a tribunal decision to disclose any previous litigation about that decision would continue to operate in relation to such a decision.

Item 15BQ - Continuation of payment declarations

2070. Item 15BQ would preserve the validity of declarations made prior to commencement day under section 112 of the FAA Act, section 145 of the SSA Act or section 314 of the SA Act, with the effect that persons entitled to receive payment pending the outcome of their application for review to the SSAT will remain so entitled when their application is continued in the AAT from commencement day and until it is finally determined.

Item 15BR - Review by AAT of SSAT decisions

2071. Item 15BR would provide transitional arrangements in relation to review by the AAT of decisions of the SSAT made before commencement day.

2072. Subitem 15BR(1) would ensure that an application to the AAT after commencement day for review of a decision of the SSAT made before commencement day is taken to be an application for AAT second review within the meaning of the Act that authorised the making of the application, and is taken to be an application for second review within the meaning of the AAT Act.

2073. Subitem 15BR(2) would ensure that a proceeding before the AAT at commencement day for review of a decision of the SSAT is taken to be an application for AAT second review within the meaning of the Act that authorised the making of the application, and is taken to be an application for second review within the meaning of the AAT Act.

2074. In both cases the amendments made by the Bill would apply to the proceeding from commencement day. The terms 'AAT second review' and 'second review' facilitate the preservation of a two stage external merits review process within the amalgamated Tribunal.

Item 15BS - Subsection 109D(6) of the A New Tax System (Family Assistance) (Administration) Act 1999

2075. Item 15BS would provide that a decision that before commencement day is an excepted decision within the meaning of subsection 109D(6) of the FAA Act continues to be an excepted decision after commencement day. This would preserve the status quo that certain decisions are not subject to the time limits for applying for review pursuant to subsection 109D.

Item 15BT - Saving provision for regulations under section 103T of the Child Support (Registration and Collection) Act 1988

2076. Item 15BT would preserve the validity of regulations in force under section 103T of the CSRC Act before commencement day, which prescribe certain powers of the Child Support Registrar that the SSAT in the review of an application may not exercise. Item 15BT would have the effect that a provision prescribed under section 103T is taken to be prescribed under new section 95E of the CSRC Act (which replaces section 103T), until such time as the regulations are amended or repealed. As a result, the amalgamated AAT would be subject to the same limitations that currently apply to the SSAT.

Part 5 - Continuation of directions

2077. Items 15CA to 15CD in Part 5 would preserve the validity of various types of directions issued prior to commencement day in relation to proceedings in the AAT and in the discontinued Tribunals.

Item 15CA - Continuation of AAT directions

2078. Item 15CA would preserve directions made by the President of the AAT prior to commencement. This is necessary because the existing provisions of the AAT Act that empower the President to make directions would be replaced by new provisions (Item 27 of Schedule 1 to the Bill).

2079. Subitem 15CA(1) would provide that directions issued by the AAT President under section 20 (directions generally) or section 34C (directions in relation to alternative dispute resolution) that are in effect before commencement day would continue to apply from commencement day, as if they were issued under new section 18B of the AAT Act or, to the extent that the direction concerns who may conduct alternative dispute resolution, under subsection 34A(2) of the AAT Act. However, these directions would not apply to the Migration and Refugee Division and the Social Services and Child Support Division. This is because Items 15CB to 15CD would preserve the validity of directions made in relation to proceedings in discontinued Tribunals, and these directions would apply to proceedings continued in the Migration and Refugee Division and the Social Services and Child Support Division of the amalgamated AAT.

2080. Subitems 15CA(2) and (3) would provide that any directions about constitution and reconstitution of the Tribunal issued by the President of the AAT under the current provisions of the AAT Act and in effect before commencement day would continue to apply from commencement day, as if they were issued under new section 19A or 19C of the AAT Act (as appropriate). This would ensure that proceedings continued after commencement day would be heard by the same member or members.

2081. Subitem 15CA(4) would apply to any other orders or directions given either by the AAT or the President of the AAT for the purposes of a proceeding that are in effect prior to commencement day. It would provide that such orders or directions continue in effect from commencement day as if they were given under the provisions of the AAT Act (as amended) that would authorise their making. The preservation of such orders or directions would minimise disruption to the conduct of proceedings and provide certainty for the parties.

Item 15CB - Continuation of Principal Member directions constituting a discontinued Tribunal

2082. Item 15CB would preserve directions made by the Principal Member of a discontinued Tribunal that were in effect prior to commencement day and either constituted the Tribunal for the purposes of a proceeding or specified the presiding member in relation to a proceeding. Such directions would continue in effect for the purposes of the proceeding as continued in the AAT (by Item 15AB), as if they were made by the President of the AAT under new section 19A of the AAT Act. References in the directions to the discontinued Tribunal would be taken to be references to the Migration and Refugee Division or the Social Services and Child Support Division, as appropriate. In effect, Item 15CB would ensure that proceedings continued after commencement day in those Divisions would be heard by the same member or members.

Item 15CC - Continuation of discontinued Tribunal practice directions

2083. Item 15CC would preserve any other directions given by the Principal Member of a discontinued Tribunal that are not covered by Item 15CB and that are in effect prior to commencement day. Item 15CC would apply to directions of general application (for example, practice directions) rather than directions in relation to specific proceedings.

2084. Pursuant to subitem 15CC(2), such directions would continue in effect after commencement day in relation to proceedings continued in the AAT (by virtue of Item 15AB), as if:

•

the direction were given by the President of the AAT under section 18B of the AAT Act (as amended by the Bill), and

•

references to the discontinued Tribunal are taken to be references to the Migration and Refugee Division, or the Social Services and Child Support Division, as appropriate, of the amalgamated AAT.

2085. The preservation of directions under Item 15CC would minimise disruption to the conduct of proceedings and provide certainty for the parties.

Item 15CD - Continuation of other discontinued Tribunal directions or orders

2086. Item 15CD would preserve any other directions or orders given by a discontinued Tribunal or the Principal Member of a discontinued Tribunal that are not covered by Items 15CB or 15CC and that are in effect prior to commencement day. This would include directions in relation to specific proceedings (for example, non-disclosure orders).

2087. Pursuant to subitem 15CD(2), such directions or orders would continue in effect after commencement day in relation to proceedings continued in the AAT (by virtue of Item 15AB), as if they had been given by the AAT or the President of the AAT under a provision of an affected law that authorises their giving.

2088. The preservation of directions under Item 15CD would minimise disruption to the conduct of proceedings and provide certainty for the parties.

Part 6 - Other transitional matters

2089. Items 15DA to 15DF in Part 6 would deal with other miscellaneous transitional matters.

Item 15DA - References in instruments to discontinued Tribunal

2090. Item 15DA would provide transitional arrangements to facilitate the ongoing applicability of any instruments in force prior to commencement day that refer to a discontinued Tribunal or the Principal Member of a discontinued Tribunal. It would have the effect that such instruments are to be read after commencement day as if those references are to the AAT or the President of the AAT, respectively. This would not prevent such instruments being varied after commencement day.

2091. Subitem 15DA(4) would provide that the instruments covered include Minister's Directions made under section 499 of the Migration Act. Instruments of delegation or authorisation would also be included. These examples are not exhaustive.

2092. Subitem 15DA(5) would provide that Acts, regulations made under the Bill (once in force) or the AAT Act, contracts of employment and enterprise agreements are not 'instruments' for the purposes of this Item. The exclusion of Acts and certain regulations is necessary because references in those contexts to the discontinued Tribunals are intended to be read as such. The exclusion of employment contracts and enterprise agreements is necessary so as not to interfere with the rights and obligations therein, which are not transferable to the AAT.

Item 15DB - Transfer of records and documents

2093. Item 15DB would provide that any records or documents that were in possession of a discontinued Tribunal prior to commencement day are taken to be transferred to the AAT from commencement day. This would provide certainty around possession of documents following the amalgamation. The note to Item 15DB would clarify that the records and documents are Commonwealth records for the purposes of the Archives Act 1983.

Item 15DC - Registries

2094. Item 15DC would provide for continuity of registries of the amalgamated Tribunal. Subitem 15DC(1) would provide that any places that are registries of a discontinued Tribunal immediately before commencement are taken to be established as registries under section 64 of the AAT Act (as amended by the Bill) from commencement.

2095. Subitem 15DC(2) would clarify that this does not prevent the Minister from varying the registries of the AAT on or after commencement day.

2096. Item 15DC is intended to provide certainty for users of the Tribunal and to ensure the validity of any documents that are required to refer to registries of the discontinued Tribunals (for example, notices given to persons in relation to their review rights).

Item 15DD - Additional material for next AAT reports

2097. Item 15DD would ensure that statutory reporting obligations are met in relation to the discontinued Tribunals for the period ending immediately before commencement day.

2098. Subitem 15DD(1) would require that the statements and reports given for the AAT under sections 42 or 46 of the PGPA Act for the reporting period ending immediately before commencement must include the statements and reports that would have been required for the MRT and RRT in relation to the reporting period. The exclusion of the SSAT is appropriate because it is not a separate statutory agency and therefore does not directly bear reporting obligations under the PGPA Act. The note to subitem 15DD(1) would explain that the Department of Social Services (as the accountable authority under the PGPA Act for the SSAT) would include information in relation to the SSAT in its statements and reports for the relevant period.

2099. Subitem 15DD(2) would require the President of the AAT to include information about the discontinued Tribunals in a report prepared under section 24R of the AAT Act for the year ending immediately before commencement. The purpose of this provision is to require the AAT to prepare annual reports for the MRT-RRT and the SSAT in relation to their final year of existence. These reports would be tabled in Parliament along with that of the AAT for the relevant period. This will provide transparency and accountability in relation to the operations of the discontinued Tribunals for the year immediately before commencement. The information about the SSAT would include the information normally provided as part of its report under clause 25 of Schedule 3 to the SSA Act.

2100. For completeness, it is noted that while Item 15DD deals with additional material in AAT reports, the AAT would remain bound by its own reporting obligations under the PGPA Act.

Item 15DE - Existing and new modifications of AAT Act

2101. Item 15DE is intended to clarify the interaction between the AAT Act and other Acts, especially in light of the doctrine of implied repeal, which would normally dictate that a later statutory provision prevails over an earlier statutory provision to the extent of any inconsistency.

2102. Subitem 15DE(1) concerns the interaction between the AAT Act and other enactments that would not be amended by the Bill. The term 'enactment' is defined broadly in section 3 of the AAT Act and includes, for example, regulations. Subitem 15DE(1) would clarify that where an enactment before commencement day has the effect of adding to, excluding or modifying the operation of the AAT Act, it continues to have that effect after commencement day, notwithstanding that the AAT Act will have been amended. That is, existing modifications of the AAT Act continue in force and are not displaced by any changes to the AAT Act provisions that they modify. This rule is important because existing modifications to the AAT Act are designed to apply specific procedural regimes to particular types of applications, and the Bill is not intended to interfere with those regimes.

2103. Subitem 15DE(2) concerns the interaction between the AAT Act and other Acts that would be amended by the Bill. It would clarify, in case there were any doubt, that a provision of an Act that appears to have the effect of adding to, excluding or modifying the operation of the AAT Act does have that effect. That is, although the AAT Act is amended simultaneously with other Acts, other Acts will prevail to the extent of any inconsistencies. This rule would permit specific procedural regimes to be established for some types of applications (for example, applications to be heard in the Migration and Refugee Division), while at the same time bringing these applications within the AAT. This is consistent with the general approach identified in subitem 15DE(1) that the AAT Act may be modified by other enactments.

Item 15DF - Section 7 of the Acts Interpretation Act 1901

2104. Item 15DF would clarify that the general rules in section 7 of the Acts Interpretation Act 1901 would apply in relation to the amendments and repeals effected by the Bill (once in force) to the extent that Schedule 9 or regulations do not provide otherwise in relation to specific matters. Section 7 provides certainty around certain aspects of the amendment and repeal of laws, which may assist in determining rights and obligations after the amalgamation. For example, paragraph 7(1)(e) would operate to ensure that the immunities currently conferred on members, witnesses and persons appearing before a discontinued Tribunal would continue from commencement day in relation to actions prior to commencement day, notwithstanding that the provisions conferring those immunities would be repealed by the Bill.

Item 16 - Regulations may deal with transitional and other matters

2105. Item 16 would provide a regulation-making power to provide detailed Regulations with respect to transitional and other matters.

2106. Subitems 16(1) and (2) would empower the Governor-General to make Regulations to deal with transitional and other matters necessary to give effect to the amalgamation.

2107. Subitem 16(3) would empower the Governor-General to make Regulations for the first two years following amalgamation that would modify the operation of an Act in the context of giving effect to the amalgamation. This provision is necessary in the context of the need to provide detailed transitional arrangements for key practical aspects of the amalgamation.

2108. Subitem 16(4) would allow for Regulations to be made retrospectively for the first two years following amalgamation. This power would not allow for a Regulation take effect before the commencement of the amalgamated Tribunal.

2109. Subitem 16(5) would provide a safeguard to prevent a person from being convicted of an offence or a pecuniary penalty as a result of the retrospective operation of a Regulation made under the power provided by this Item.