Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Bill 2024
21. 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.
Overview of the Consequential Bill
22. 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 (Tribunal), a new federal administrative review body that is user-focused, efficient, accessible, independent and fair.
23. Consequential Bill 2 would support the ART Bill and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023 (Consequential Bill 1) by making consequential amendments across 110 Commonwealth Acts, including to Acts requiring State and Territory Consultation.
Consequential Bill 2
24. 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. It would also replace references to provisions of the AAT Act with references to the equivalent, or broadly equivalent, provisions under the ART Bill.
25. The ART Bill would also 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.
26. To promote consistency and simplicity, Consequential Bill 2 would, where possible, repeal special arrangements that overlap, duplicate or unnecessary displace core provisions of the ART Bill, with the effect that the default provisions in the ART Bill would apply.
27. However, where departures from the Tribunal's proposed standard powers are required to respond to the unique features of a particular caseload, Consequential Bill 2 would also make necessary amendments to achieve that outcome.
Human rights implications – issues common to all Schedules
28. The ART Bill engages the following 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 and public hearing in Article 14 of the ICCPR
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- the right to equality before the law in Article 26 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 of access to justice for people with disability in Article 13 of the Convention on the Rights of Persons with Disabilities (CRPD)
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- the right to a presumption of innocence in Article 14(2) of the ICCPR
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- the right to freedom of opinion and expression in Article 19 of the ICCPR (engaged tangentially).
29. Consequential Bill 2 supports promotion of the above rights by ensuring the review framework established by the ART Bill is available to a broad range of administrative decisions under other Commonwealth Acts.
30. The ART Bill, Consequential Bill 1 and Consequential Bill 2 are all compatible with human rights. The Bills advance the right to an effective remedy, a fair and public hearing, the right of access to justice for persons with a disability and the right to freedom from arbitrary and unlawful interference with privacy. Consequential Bill 2 extends the administrative review framework, and therefore the human rights it supports, to a large range of administrative decisions across the Commonwealth. For more detail, see the Statement of Compatibility with Human Rights in the Explanatory Memorandum for the ART Bill for further information.
31. In addition, the Schedules of Consequential Bill 2 engage specific human rights or freedoms, as set out in detail below.
Human rights implications – Specific schedules
Schedules 1-9 and 11-14: Agriculture, Fisheries and Forestry; Attorney-General; Climate Change, Energy, the Environment and Water; Defence; Education; Employment and Workplace Relations; Finance; Foreign Affairs and Trade; Health and Aged Care; Industry, Science and Resources; and Infrastructure, Transport, Regional Development, Communications and the Arts; Prime Minister and Cabinet; and Treasury
32. Schedules 1-9 and 11-16 (various portfolios) contain a range of minor amendments. The amendments would make terminology changes, updating outdated references to the 'Administrative Appeals Tribunal' and 'Administrative Appeals Tribunal Act 1975' to refer instead to the 'Administrative Review Tribunal' and 'Administrative Review Tribunal Act 2024'. These amendments also make minor technical amendments to ensure legislation continues to operate in substantively the same way in relation to the Tribunal.
33. In addition to the rights engaged, as outlined above, the Schedules engage the right to an effective remedy and a fair public hearing in Articles 2(3) and 14(1) of the ICCPR.
The right to an effective remedy and a fair and public hearing in Articles 2(3) and 14 of the ICCPR
34. Article 2(3) of the ICCPR provides that States shall undertake to ensure the right to an effective remedy for any violation of rights or freedoms recognised by the ICCPR. It includes the right to have a remedy determined by competent judicial, administrative or legislative authorities. This right also encompasses the duty to ensure competent authorities enforce any such remedies when granted.
35. Article 14(1) of the ICCPR provides that all persons shall be equal before the courts and tribunals. It further provides that everyone is entitled, in the determination of their 'rights and obligations in a suit at law', to a 'fair and public hearing by a competent, independent and impartial tribunal established by law'. The extent to which Article 14(1) applies to administrative review proceedings (because of a question about whether such proceedings constitute a 'suit at law') is not fully settled.
36. To the extent that they may apply, these schedules promote the right to an effective remedy in Article 2(3) of the ICCPR and the right to a fair hearing in Article 14(1) of the ICCPR in the ways listed below.
Conferring jurisdiction on the Tribunal
37. These Schedules promote the right to an effective remedy and a fair public hearing by making consequential amendments to provide that decisions may be reviewable by the Tribunal (where they were previously reviewable by the AAT). This maintains the ability of persons to seek independent, external review of government decisions.
Schedule 10: Home Affairs
38. The Bill would also confer jurisdiction on the Tribunal to review decisions under section 37 of the Australian Citizenship Act 2007. These decisions concern whether to provide a person with a notice as evidence of Australian citizenship. Currently, those types of decisions are only subject to internal merits review (by the Department of Home Affairs), and judicial review by the courts.
39. This Schedule specifically promotes the right to an effective remedy in Article 2(3) of the ICCPR.
The right to an effective remedy in Article 2(3) of the ICCPR
40. Article 2(3) of the ICCPR provides that States shall undertake to ensure the right to an effective remedy for any violation of rights or freedoms recognised by the ICCPR. It includes the right to have a remedy determined by competent judicial, administrative or legislative authorities. This right also encompasses the duty to ensure competent authorities enforce any such remedies when granted.
Conferring jurisdiction on the Tribunal
41. This Schedule promotes the right to an effective remedy by extending external merits review to people seeking to challenge decisions to refuse them evidence of their Australian citizenship. This improves the ability of persons to seek independent, external review of those government decisions.
Schedule 15: Acts with State and Territory consultation requirements
42. This schedule contains amendments 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.
43. Of relevance for the Bill's human rights implications, the Schedule amends the Criminal Code Act 1995 to remove the administrative review pathway for PDO decisions.
The right to an effective remedy in Article 2(3) of the ICCPR
44. Article 2(3) of the ICCPR provides that States shall undertake to ensure the right to an effective remedy for any violation of rights or freedoms recognised by the ICCPR. It includes the right to have a remedy determined by competent judicial, administrative or legislative authorities. This right also encompasses the duty to ensure competent authorities enforce any such remedies when granted.
Repeal of administrative review for PDO decisions
45. Consequential Bill 2 engages the right to an effective remedy as it removes the administrative review pathway for PDO decisions.
46. A PDO under Division 105 of the Criminal Code allows a person to be taken into custody for up to 48 hours for the purposes of either preventing a terrorist attack that is capable of being carried out, and could occur within the next 14 days, or preserving evidence of, or relating to, a recent terrorist act. There are two types of PDOs: initial PDOs, which can last up to 24 hours, and continued PDOs, which can extend detention by a further 24 hours.
47. Currently, an individual may seek a review of a decision to make or extend a PDO in the Security Division of the Administrative Appeals Tribunal (AAT), and the AAT may declare the decision void and order compensation. Alternatively, they may have their PDO decision reviewed by bringing proceedings in a court for a remedy in relation to a PDO or the treatment of a person in connection with their detention under a PDO.
48. The powers to void and order compensation following a PDO review are different to the standard decisions provided for under section 43 of the AAT Act. There is no other type of review in which the AAT may award a grant of compensation, and it is not typically a function of an administrative tribunal. The proposed amendments would result in the review of a PDO and ordering of compensation being vested exclusively in the courts.
49. The limitation the proposed amendment places on the right to an effective remedy is minimal as the remedies currently available to an affected individual through the administrative review mechanism are also available through judicial review. Judicial review of PDO decisions is provided for in sections 105.51 and 105.52 of the Criminal Code, as well as section 39B of the Judiciary Act 1903 and section 75(v) of the Constitution.
50. Moreover, the proposed amendment addresses 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.
Conclusion
51. These Schedules are compatible with human rights. The Schedules advance the right to an effective remedy.