Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)GENERAL OUTLINE
1. The Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Bill 2024 (Consequential Bill 2) forms part of a package of Bills that would abolish the Administrative Appeals Tribunal (AAT) and establish the Administrative Review Tribunal (the Tribunal), a new federal administrative review body that is user-focused, efficient, accessible, independent and fair.
2. The Administrative Review Tribunal Bill 2023 (ART Bill) would establish the Tribunal and set out its operating framework to significantly improve the experience of those seeking review of government decisions.
3. The Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023 (Consequential Bill 1) would repeal the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), make consequential amendments to 138 Commonwealth Acts and facilitate the smooth transition from the AAT to the Tribunal.
4. Consequential Bill 2 would support the above two Bills, by making consequential amendments to the remaining 110 Commonwealth Acts that interact with the AAT Act, including Acts that have required consultation with States and Territories under cooperative schemes or intergovernmental agreements.
Consequential Bill 2
5. Consequential Bill 2 would amend 110 Commonwealth Acts, covering approximately seven per cent of the AAT's current caseload.
6. Consequential Bill 2 would contain changes primarily in relation to harmonising and streamlining provisions where appropriate. Consequential Bill 2 would contain policy changes in relation to the review pathways for preventative detention order (PDO) decisions, and extending external merits review to decisions to refuse to provide a person with a notice as evidence of their Australian citizenship.
Terminology changes and updating cross-references
7. Consequential Bill 2 would update terminology across the Commonwealth statute book to replace references to the AAT and AAT Act with references to the Administrative Review Tribunal and the Administrative Review Tribunal Act 2024. These amendments would ensure that the Tribunal has the same jurisdiction as the AAT, and that various provisions continue to operate in substantively the same way as the existing law in the AAT.
8. Consequential Bill 2 would also replace references to provisions of the AAT Act with references to the equivalent, or broadly equivalent, provisions under the ART Bill. This includes updating provisions with legislative references to notification requirements under the AAT Act, or other concepts created under the AAT Act (for example, 'officers of the Tribunal' or 'presidential and non-presidential members'). These amendments would ensure that other legal frameworks reflect the terminology, concepts, structure and other policy settings in the ART Bill or are otherwise consistent with the ART Bill. This would ensure that existing laws continue to apply as intended.
Standardising processes
9. A key objective for the reform is to enable procedural efficiencies and process improvements by harmonising processes and procedures across the Tribunal's caseload where possible.
10. The ART Bill would implement a set of standard procedures and powers which the Tribunal can use to resolve matters. Those procedures and powers have been designed to be flexible and adaptable to the Tribunal's broad caseload, and should be relied upon by Acts conferring jurisdiction on the Tribunal as far as possible. Where possible, Consequential Bill 2 would repeal special procedures in other Acts, with the effect that the default provisions in the ART Bill would apply.
11. There are significant benefits to the Tribunal and users in relying on these standard procedures, rather than applying particular arrangements. Users engage with a range of government agencies over their lifetime, and may seek review of several different government decisions in that time. Recognising that the majority of Tribunal users are unrepresented, increased similarity and predictability in how matters proceed would better equip them to have a positive experience of review. For the Tribunal, there would also be significant efficiencies from greater harmonisation than applies in the AAT. It would reduce the complexity of the Tribunal's operating environment, allowing shared technology, forms, staff and member resources.
12. For example, Consequential Bill 2 would reduce the quantity of provisions that prescribe specialised procedures and shorter timeframes for Tribunal matters. Repealing such provisions would enable the procedures and timeframes prescribed by the ART Bill to instead apply.
13. However, there are circumstances where the Tribunal's proposed standard powers and procedures need to be changed, to respond to the unique features of a particular caseload. In those circumstances, Consequential Bill 2 would also make the necessary amendments to other Acts to preserve existing arrangements.
Policy changes
14. Consequential Bill 2 would remove the administrative review pathway for PDO decisions under section 105.51 of the Criminal Code Act 1995, leaving decisions with respect to the validity of PDO decisions, and the ordering of compensation, entirely within the purview of the courts, pursuant to the exercise of existing judicial review powers. These changes address the risk that sections 105.51(5) and (7) of the Criminal Code could be construed as vesting federal judicial power in a body other than a court, contrary to Chapter III of the Constitution.
15. The Bill would also confer jurisdiction on the Tribunal to review decisions under section 37 of the Australian Citizenship Act 2007, on whether to provide a person with a notice as evidence of Australian citizenship. Extending the availability of external merits review for these types of decisions would align it with the review pathways available for other citizenship and migration-related decisions. It would provide applicants with an accessible independent review process.
Acts requiring State and Territory consultation
16. Consequential Bill 2 contains amendments in Schedule 15 to a number of Commonwealth Acts which are subject to requirements for the Commonwealth to consult with, or seek the agreement of, the States and Territories before introducing amendments into Parliament. These requirements arise from intergovernmental agreements. The Commonwealth has satisfied these requirements. These requirements apply to amendments under the following Acts:
- •
- Agricultural and Veterinary Chemicals Act 1994
- •
- Agricultural and Veterinary Chemicals Code Act 1994
- •
- Agricultural and Veterinary Chemicals (Administration) Act 1992
- •
- Agricultural and Veterinary Chemicals (Collection of Levy) Act 1994
- •
- Australian Education Act 2013
- •
- Criminal Code Act 1995
- •
- Fair Work Act 2009
- •
- Gene Technology Act 2000
- •
- Greenhouse and Energy Minimum Standards Act 2012
- •
- Mutual Recognition Act 1992
- •
- Trans-Tasman Mutual Recognition Act 1997
- •
- National Vocational Education and Training Regulator Act 2011
- •
- Personal Property Securities Act 2009
- •
- Research Involving Human Embryos Act 2002
FINANCIAL IMPACT
17. The Government will provide $21.8 million over two years from 2023–24 to support the interim financial sustainability of the AAT and ensure a smooth transition to the new Tribunal.
18. A further $30.1 million over five years from 2022-23 has been provided to the AAT for the development of a new case management solution (CMS) for use by the Tribunal.
19. In response to the Royal Commission into the Robodebt Scheme, the Government has additionally committed $5.3 million over four years from 2023–24 (and $1.8 million per year ongoing) to support the re-established Administrative Review Council to monitor and enquire into the Commonwealth administrative review system.
20. The Government is continuing to consider the Tribunal's resourcing needs as part of the reform to Australia's system of administrative review.