Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)SCHEDULE 1 - AGRICULTURE, FISHERIES AND FORESTRY
OUTLINE
52. This Schedule contains consequential amendments to the following Acts in the Agriculture, Fisheries and Forestry portfolio:
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- Export Control Act 2020
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- Fisheries Management Act 1991
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- Horticulture Marketing and Research and Development Services Act 2000
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- Illegal Logging Prohibition Act 2012
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- Imported Food Charges (Collection) Act 2015
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- Imported Food Control Act 1992
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- Primary Industries Levies and Charges Collection Act 1991
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- Wine Australia Act 2013
AMENDMENTS
General terminology changes
53. A number of items in this Schedule make simple terminology changes, such as repealing outdated references to the Administrative Appeals Tribunal, the AAT and the Administrative Appeals Tribunal Act 1975, and replacing them with references to the Administrative Review Tribunal, the ART and the Administrative Review Tribunal Act 2024. These amendments ensure that the Tribunal has jurisdiction to review decisions that are reviewable by the AAT, and that the relevant provisions continue to operate in substantively the same way in relation to the new Tribunal.
Export Control Act 2020
Items 1, 2, 3, 4, 5 and 6: Section 4, section 380, paragraph 383(6)(c), subsection 383(7), section 385 (heading) and subsection 385(1)
Terminology changes
54. These items amend terminology. See explanation of general terminology changes above.
Item 7: Subsection 385(3)
Updating legislative references
55. This item updates a legislative reference to subsection 27(1) of the AAT Act to instead refer to the equivalent provision of the ART Bill, clause 17.
56. Subsection 27(1) of the AAT Act, and the equivalent clause 17 of the ART Bill, provide that where an application may be made to the Tribunal for review of a decision, the application may be made by or on behalf of any person or persons whose interests are affected by the decision. Subsection 385(3) of the Export Control Act 2020 stipulates that, contrary to clause 17, an application for review may only be made by, or on behalf of, the relevant person for the reviewable decision (as defined in section 381 of that Act). Subsection 385(3) applies to applications for review of a reviewable decision made by the Secretary personally, or an internal review decision relating to that relates to a reviewable decision. In some cases, it is only appropriate for the 'relevant person' to apply for review by the Tribunal, and it would be burdensome or impractical to provide any person whose interests are affected by a decision with a right to apply for review of the decision.
57. This amendment is technical in nature, and ensures subsection 385(3) of the Export Control Act 2020 continues to operate in substantively the same way in relation to the Tribunal.
Items 8, 9 and 10: Subsection 385(3) (note), subsection 386(3) and subsection 386(3) (note)
Updating legislative references
58. These items update legislative references, replacing references to subsections 43(1) and 25(6) of the AAT Act with references to the equivalent provisions in the ART Bill, clauses 54, 105 and 5. Subsection 43(1) of the AAT Act and the equivalent clauses 54 and 105 of the ART Bill prescribe that the Tribunal may exercise all the powers and discretions that are conferred on the decision-maker by an Act or an instrument made under an Act and that the Tribunal must make a decision affirming, varying or setting aside the reviewable decision. Subsection 25(6) of the AAT Act and the equivalent clause 5 of the ART Bill provide that the AAT Act and the ART Bill may be modified by another Act or instrument.
59. Item 9 amends subsection 386(3) of the Export Control Act 2020, which allows rules to modify subsection 43(1) of the AAT Act in its application to review of decisions relating to tariff quota entitlements. Subsection 386(4) clarifies that the rules may prescribe modifications only for the purpose of ensuring that tariff rate quota amounts are not exceeded.
60. Items 8 and 10 amend the notes to subsections 385(3) and 386(3), consequential to the amendment to subsection 386(3).
61. These amendments are technical in nature, and ensure that the provisions continue to operate in substantively the same way in relation to the Tribunal.
Fisheries Management Act 1991
Item 11: Subsection 19(5)
Terminology changes
62. This item amends terminology, including replacing the reference to 'enactment' in subsection 19(5) of the Fisheries Management Act 1991 to instead refer to 'a legislative instrument' to reflect modern drafting practices. See explanation of general terminology changes above.
Items 12, 13 and 14: Subsections 50(2) and 57B(5), subsections 57H(4) and 157(1) and (2) and section 165 (heading)
Terminology changes
63. These items amend terminology. See explanation of general terminology changes above.
Item 15: Subsection 165(1) (definition of decision )
Updating definition
64. This item updates the definition of decision so that it refers to its meaning under the ART Bill rather than its meaning under the AAT Act. See explanation of general terminology changes above.
Item 16: Subsection 165(7)
Terminology change
65. This item amends terminology. See explanation of general terminology changes above.
Item 17: Subsections 165(8), (9) and (10)
Repealing provisions no longer necessary
66. This item repeals subsections 165(8), (9) and (10) of the Fisheries Management Act 1991.
67. Subsection 165(8) shortens the timeframe for making an application to the AAT to 14 days from notice of a decision for review of decisions made under subsection 26(2) of the Fisheries Management Act 1991, rather than 28 days as provided for in section 29 of the AAT Act. Repealing this subsection has the effect that clause 18 of the ART Bill will instead apply. Subclauses 18(1) and (2) of the ART Bill provide that the timeframe for applying to the Tribunal for review of a decision will be set out in the rules and is subject to the ability to apply to the Tribunal and for the Tribunal to grant an extension of time. Subclause 18(3) provides that rules made under subclause (1) cannot prescribe a timeframe for applying that is less than 28 days from the date of the decision. Subclause 18(4) provides that rules made under subclause (1) may provide different periods for different types of application.
68. Subsection 165(9) of the Fisheries Management Act 1991 shortens the timeframe for lodging and giving documents to 14 days, rather than 28 days as provided for in section 37 of the AAT Act. Repealing this subsection has the effect that relevant provisions in the ART Bill, such as clause 23 will instead apply. Clause 23 of the ART Bill requires a decision-maker to give to the Tribunal a statement of reasons for the decision and a copy of documents that are in their possession or under their control that are considered to be relevant to the review within 28 days after the Tribunal notifies the decision-maker for a decision of an application for review of the decision.
69. Subsection 165(10) of the Fisheries Management Act 1991 requires the AAT to convene a directions hearing as soon as practicable after documents are lodged with it under section 37 to determine a timetable for disposing of the matter. Repealing this subsection has the effect that clause 80 of the ART Bill will apply. Clause 80 provides the Tribunal with discretion to hold directions hearings in relation to a proceeding in the Tribunal.
70. Repeal of these provisions will enable the standard provisions of the ART Bill to apply to these matters, simplifying processes for the Tribunal and its users, and supporting efficiency.
Items 18, 19, 20 and 21: Paragraph 165(11)(b) and subsection 165(12)
Terminology changes
71. These items amend terminology. See explanation of general terminology changes above.
Horticulture Marketing and Research and Development Services Act 2000
Items 22 and 23: Subsection 35(1) and subsection 35(5)
Repealing provisions no longer necessary
72. Item 23 repeals subsection 35(5) of the Horticulture Marketing and Research and Development Services Act 2000 which clarifies that an order made under subsection 35(1) of that Act is taken to be an enactment for the purposes of the AAT Act. The subsection is redundant as an order under subsection 35(1) is a legislative instrument consistent with the terminology of the ART Bill. Item 22 makes a consequential amendment related to item 23, to remove reference to '(1)'.
Illegal Logging Prohibition Act 2012
Item 24: Paragraph 86(2)(d)
Terminology change
73. This item amends terminology. See explanation of general terminology changes above.
Imported Food Charges (Collection) Act 2015
Items 25, 26, and 28: Paragraph 17(6)(c), section 19 (heading) and subsection 19(1)
Terminology changes
74. These items amend terminology. See explanation of general terminology changes above.
Items 27 and 29: Subsections 19(1), (2) and (3)
Repealing provisions no longer necessary
75. Item 29 repeals subsections 19(2) and (3) of the Imported Food Charges (Collection) Act 2015. The provisions override subsection 27(1) of the AAT Act, by providing that an application to the AAT for review of a decision may only be made by, or on behalf of, the person referred to in paragraph 19(1)(a) or (b) of that Act.
76. Repealing subsections 19(2) and (3) has the effect that clause 17 of the ART Bill will apply, allowing anyone whose interests are affected by a decision to apply to the Tribunal for review. Item 27 makes a consequential amendment related to item 29.
Imported Food Control Act 1992
Item 30: Subsection 42(1) (definition of decision )
Updating definition
77. This item updates the definition of decision so that it refers to its meaning under the ART Bill rather than its meaning under the AAT Act. See explanation of general terminology changes above.
Items 31, 32 and 33: Subsection 42(3) and paragraph 42(8)(b)
Terminology changes
78. These items amend terminology. See explanation of general terminology changes above.
Item 34: Subparagraph 42(9)(b)(i)
Terminology changes and updating legislative reference
79. This item repeals and substitutes subparagraph 42(9)(b)(i) of the Imported Food Control Act 1992 to replace the reference to subsection 28(4) of the AAT Act with a reference to clause 268 of the ART Bill.
80. Under clause 268 of the ART Bill, a person whose interests are affected by a decision make may a written request to the decision-maker to give the person a statement of reasons for the decision.
81. Subsection 28(4) of the AAT Act provides that a person is not entitled to request a statement of reasons if such a statement has already been given. Under the equivalent provision in the ART Bill (subclause 269(7)), the decision-maker may refuse the request if the statement of reasons has already been provided for the decision. Although the provision amended by this item does not specifically refer to this equivalent provision as this is unnecessary, a person's right to request reasons is still subject to this qualification.
82. The amendment is technical in nature and ensures the provision continues to operate in substantively the same way in relation to the Tribunal, so that a decision-maker must notify relevant persons that they may request a statement of reasons under the ART Bill.
Items 35 and 36: Subparagraph 42(9)(b)(ii) and subsection 42(11)
Terminology changes
83. These items amend terminology. See explanation of general terminology changes above.
Primary Industries Levies and Charges Collection Act 1991
Items 37, 38, 39, 40 and 41: Subsection 28(5), paragraph 28(6)(b) and subsection 28(7)
Terminology changes
84. These items amend terminology. See explanation of general terminology changes above.
Item 42: Subsection 31(6)
Repealing provisions no longer necessary
85. This item repeals subsection 31(6) of the Primary Industries Levies and Charges Collection Act 1991, which clarifies that an order made under section 31 of the Act is taken to be an enactment for the purposes of the AAT Act. The subsection is redundant as an order made under subsection 31(6) is a legislative instrument consistent with the terminology of the ART Bill.
Wine Australia Act 2013
Items 43 and 44: Paragraph 8(2C)(a)
Terminology changes
86. These items amend terminology. See explanation of general terminology changes above.
Item 45: Paragraph 8(2C)(b)
Terminology changes and updating legislative references
87. This item repeals and substitutes paragraph 8(2C)(b) of the Wine Australia Act 2013 to update legislative references to section 28 and subsection 28(4) of the AAT Act with a reference to clause 268 of the ART Bill. Consistent with section 28 of the AAT Act, under clause 268 of the ART Bill, a person whose interests are affected by a decision may make a written request to the decision-maker to give the person a statement of reasons for the decision.
88. Subsection 28(4) of the AAT Act provides that a person is not entitled to request a statement of reasons if such a statement has already been given. Under the equivalent provision in the ART Bill, the decision-maker may refuse the request if the statement of reasons has already been provided for the decision. Although the provision amended by this item does not specifically refer to this equivalent provision as this is unnecessary, a person's right to request reasons is still subject to this qualification.
89. This item replaces the reference to a 'statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision', with a reference to a 'statement of reasons'. The ART Bill includes a definition of a statement of reasons, which includes each of these elements in the original provision.
90. The amendment is technical in nature and ensures the provision continues to operate in substantively the same way in relation to the Tribunal, so that a decision-maker must notify relevant persons that they may request a statement of reasons under the ART Bill.
Item 46: Subsection 8(2E)
Terminology change
91. This item amends terminology. See explanation of general terminology changes above.
Item 47: Subsection 8(2F)
Terminology changes and updating legislative reference
92. This item repeals subsection 8(2F) of the Wine Australia Act 2013 and substitutes subsections 8(2F) and (2FA) to replace the reference to section 29 of the AAT Act with references to clauses 18 and 19 of the ART Bill.
93. Section 29 of the AAT Act deals with the prescribed time for making applications to the Tribunal. These matters are prescribed in clauses 18 and 19 of the ART Bill. Subclauses 18(1) and (2) of the ART Bill provide that the timeframe for applying to the Tribunal for review of a decision will be set out in the rules. The note to subclause 18(1) provides that legislation may specify a different period for applying for review. Clause 19 of the ART Bill provides that a person may apply to the Tribunal to extend the period during which they may apply to the Tribunal for review of a decision.
94. Relevant decisions under paragraphs 8(2)(aa), (ac) and (ad) of the Wine Australia Act 2013 are provided for as determinations. Under subsection 8(2B) of that Act, notices of determinations are published, rather than being given to the person whose interests are affected. As such, the relevant date for calculating application periods is described as the day that the notice of determination is published, rather than the day a decision is made.
95. Subsection 8(2F) specifies that an application must be made within 28 days after notice of the determination is published. Subsection 8(2FA) specifies that an application to the Tribunal to extend the period during which an application may be made to the Tribunal for review of the determination must be made within 28 days after notice of the determination is published. This has the effect of removing the Tribunal's usual power under clause 19 of the ART Bill to extend the period during which an applicant may apply to the Tribunal for review of a decision, including after this period has expired.
96. The amendment is technical in nature and ensures the provision continues to operate in substantively the same way in relation to the Tribunal, so that the timeframe starts from the day the notice of a determination is published, rather than the day of the decision.
Items 48, 49 and 50: Paragraph 8(2G)(a) and paragraph 40X(2)(a)
Terminology changes
97. These items amend terminology. See explanation of general terminology changes above.
Item 51: Paragraph 40X(2)(b)
Terminology changes and updating legislative reference
98. This item repeals and substitutes paragraph 40X(2)(b) of the Wine Australia Act 2013 to replace references to section 28 and subsection 28(4) of the AAT Act with a reference to clause 268 of the ART Bill. Consistent with section 28 of the AAT Act, under clause 268 of the ART Bill, a person whose interests are affected by a decision may make a written request to the decision-maker to give the person a statement of reasons for the decision.
99. Subsection 28(4) of the AAT Act provides that a person is not entitled to request a statement of reasons if such a statement has already been given. Under the equivalent provision in the ART Bill, the decision-maker may refuse the request if the statement of reasons has already been provided for the decision. Although the provision amended by this item does not specifically refer to this equivalent provision as this is unnecessary, a person's right to request reasons is still subject to this qualification.
100. This item replaces the reference to a 'statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision', with a reference to a 'statement of reasons'. The ART Bill includes a definition of a statement of reasons, which includes each of these elements in the original provision.
101. The amendment is technical in nature and ensures the provision continues to operate in substantively the same way in relation to the Tribunal, so that a notice must include a statement notifying relevant persons that they may request a statement of reasons under the ART Bill.
Items 52 and 53: Paragraph 40X(2)(c) and subsection 40Y(1)
Terminology changes
102. These items amend terminology. See explanation of general terminology changes above.
Item 54: Subsection 40Y(2)
Terminology changes and updating legislative reference
103. This item repeals subsection 40Y(2) of the Wine Australia Act 2013 and substitutes subsections 40Y(2) and (3) to replace the reference to section 29 of the AAT Act with references to clauses 18 and 19 of the ART Bill.
104. Section 29 of the AAT Act deals with the prescribed time for making applications to the Tribunal. These matters are dealt with in clauses 18 and 19 of the ART Bill. Subclauses 18(1) and (2) of the ART Bill provide that the timeframe for applying to the Tribunal for review will be set in the rules. The note to subclause 18(1) provides that legislation may specify a different period for applying for review. Clause 19 of the ART Bill provides that a person may apply to the Tribunal to extend the period during which they may apply to the Tribunal for review of a decision.
105. Relevant decisions under section 40W of the Wine Australia Act 2013 are provided for as determinations. Under section 40X of that Act, notices of determinations are published, rather than being given to the person whose interests are affected. As such, the relevant date for calculating application periods is described as the day that the notice of determination is published, rather than the day a decision is made.
106. Subsection 40Y(2) specifies that an application must be made within 28 days after notice of the determination is published. Subsection 40Y(3) specifies that an application to the Tribunal to extend the period during which an application may be made to the Tribunal for review of the determination must be made within 28 days after notice of the determination is published. This has the effect of removing the Tribunal's usual power under clause 19 of the ART Bill to extend the period during which an applicant may apply to the Tribunal for review of a decision, including after this period has expired.
107. The amendment is technical in nature and ensures the provision continues to operate in substantively the same way in relation to the Tribunal, so that the timeframe starts from the day notice of a determination is published, rather than the day of the decision.
Items 55, 56 and 57: Paragraph 40Z(1)(a), section 40ZAH (heading) and subsection 40ZAH(1)
Terminology changes
108. These items amend terminology. See explanation of general terminology changes above.
Item 58: Subsections 40ZAH(2) and (3)
Terminology changes and updating legislative reference
109. This item repeals and substitutes subsections 40ZAH(2) and (3) of the Wine Australia Act 2013 to replace references to paragraph 29(1)(d) and subsections 29(2), 29(8) and 29(7) of the AAT Act with references to clauses 18 and 19 of the ART Bill.
110. Section 29 of the AAT Act deals with the prescribed time for making applications to the Tribunal. These matters are dealt with in clauses 18 and 19 of the ART Bill. Subclauses 18(1) and (2) of the ART Bill provide that the timeframe for applying to the Tribunal for review of a decision will be set out in the rules. The note to subclause 18(1) provides that legislation may specify a different period for applying for review. Clause 19 of the ART Bill provides that a person may apply to the Tribunal to extend the period during which they may apply to the Tribunal for review of a decision.
111. Relevant decisions under section 40ZAF of the Wine Australia Act 2013 are provided for as determinations. Under subsection 40ZAG of that Act, notices of determinations are published, rather than being given to the person whose interests are affected. As such, the relevant date for calculating application periods is described as the day that the notice of determination is published, rather than the day a decision is made.
112. Subsection 40ZAH(2) specifies that an application must be made within 28 days after notice of the determination is published. Subsection 40ZAH(3) specifies that an application to the Tribunal to extend the period during which an application may be made to the Tribunal for review of the determination must be made within 28 days after notice of the determination is published. This has the effect of removing the Tribunal's usual power under clause 19 of the ART Bill to extend the period during which an applicant may apply to the Tribunal for review of a decision, including after this period has expired.
113. The amendment is technical in nature and ensures the provision continues to operate in substantively the same way in relation to the Tribunal, so that the timeframe starts from the day notice of a determination is published, rather than the day of the decision.
Item 59: Paragraphs 40ZAI(1)(a), 40ZAQ(2)(d) and 40ZAT(2)(d)
Terminology changes
114. This item amends terminology. See explanation of general terminology changes above.