Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)SCHEDULE 4 - DEFENCE PORTFOLIO
OUTLINE
263. This Schedule contains consequential amendments to the Defence Act 1903.
AMENDMENTS
General terminology changes
264. A number of items in this Schedule make simple terminology changes, such as repealing outdated references to the Administrative Appeals Tribunal, the AAT and the Administrative Appeals Tribunal Act 1975, and replacing them with references to the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 the new Tribunal.
Defence Act 1903
Items 1, 2, 3 and 4: Subsection 4(1)
Updating definitions
265. These items amend subsection 4(1) of the Defence Act 1903 to replace the definitions of AAT and AAT Act with definitions of ART and ART Bill.
Items 5, 6 and 7: Section 61CZB, section 61CZC (heading) and subsection 61CZC(1)
Terminology changes
266. These items amend terminology. See explanation of general terminology changes above.
Item 8: Subsections 61CZC(2), (3) and (4)
Terminology changes
267. Section 61CZC(1) provides that the AAT Act applies in relation to the review of a determination of a Conscientious Objection Tribunal subject to the modifications set out in that section. This item repeals and substitutes subsections 61CZC(2), (3) and (4) of the Defence Act 1903 to amend terminology and update legislative references to sections 30, 30A, 31, 44 and 44A of the AAT Act with references to the equivalent clause 22, clause 59, paragraph 22(1)(c) and clauses 172 to 178 of the ART Bill.
268. A key objective of the ART Bill is to enable procedural efficiencies and process improvements by harmonising processes and procedures across the Tribunal's caseload wherever possible. However, the amendments in item 8 and elsewhere in this schedule retain specialised provisions that would be fundamental to the Tribunal's review of assessments made by a Conscientious Objection Tribunal if established under the Defence Act 1903.
269. Subsection 61CZC(2) provides that, despite section 30 of the AAT Act, the parties to a proceeding before the AAT for a review of a determination of a Conscientious Objection Tribunal are the person in relation to whom the determination was made and the Commonwealth. Section 30 of the AAT Act, and the equivalent provision of the ART Bill, clause 22, deal with the parties to a proceeding before the AAT. The amendment is technical in nature and ensures the provision continues to operate in substantively the same way in relation to the Tribunal.
270. Subsection 61CZC(3) provides that sections 30A, 31, 44 and 44A of the AAT Act do not apply in relation to the AAT's review of a determination of a Conscientious Objection Tribunal.
271. Section 30A of the AAT Act, and the equivalent provision of the ART Bill, clause 59, provide that the Attorney-General may become a party to a proceeding. As the Commonwealth will always be a party to the Tribunal proceedings due to subsection 61CZC(2) of the Defence Act 1903, there is no need to provide for the Attorney-General to intervene in proceedings on behalf of the Commonwealth.
272. Section 31 of the AAT Act provides the Tribunal with discretion to determine whether the interests of a person are affected by a decision. Clause 22 of the ART Bill sets out who the parties are to a proceeding for review, which includes, under paragraph 22(1)(c), any person who applies to become a party to the proceeding if the Tribunal considers that the person has interests affected by the decision and it is appropriate to add the person as a party to the proceeding. Subsection 61CZC(2) of the Defence Act 1903 provides that the parties to a proceeding for a review of a determination of a Conscientious Objection Tribunal are the person in relation to whom the determination was made and the Commonwealth. Accordingly, new subsection 61CZC(3) of the Defence Act 1903 would disapply paragraph 22(1)(c) of the ART Bill to ensure that no other persons may become a party to the proceedings, meaning it will continue to operate in the same way in relation to the Tribunal.
273. Section 44 of the AAT Act provides for appeal from the AAT to the FCA by parties to a proceeding. Section 44A of the AAT Act relates to the operation and implementation of decisions subject to appeal. This item ensures the equivalent provisions of the ART Bill, clauses 172 to 178 (inclusive), do not apply in relation to the review. To ensure appropriate review of conscientious objections to military service, sections 61CZD and 61CZE of the Defence Act 1903 set out the process for appeals from the Tribunal to the FCA on questions of law, and the operation and implementation of decisions subject to appeal.
274. Subsection 61CZC(4) has the effect of modifying the operation of subsection 46(1) of the AAT Act (which relates to the sending of documents from the AAT to the FCA) so that it only applies when a question of law is referred to the FCA in accordance with section 45 of the AAT Act and not when an appeal is instituted in accordance with section 44 of the AAT Act. This modification is required because section 61CZD of the Defence Act 1903 only permits appeals to the FCA on a question of law with respect to the review of a determination of a Conscientious Objection Tribunal by the AAT. This subsection is updated to reference equivalent provisions of the ART Bill so it will continue to operate in the same way in relation to the Tribunal.
Items 9 and 10: Section 61CZD (heading) and subsections 61CZD(1) and (2)
Terminology changes
275. These items amend terminology. See explanation of general terminology changes above.
Item 11: Subsection 61CZD(3)
Amendment to remove requirement for appeals to be heard by a Full Court
276. This item amends subsection 61CZD(3) of the Defence Act 1903 to remove the requirement that the FCA's jurisdiction to hear and determine appeals instituted under subsection 61CZD(2) must be exercised by the FCA constituted as a Full Court.
277. Repealing this subsection has the effect that clause 175 of the ART Bill will instead apply. Subclause 175(1) provides that, if the Tribunal decision was given by a member who is a Judge or a Tribunal constituted with at least one member who is a Judge, the appeal must be heard by a Full Court. Subclause 175(2) prescribes when an appeal may be heard by a Full Court, including if the matter was one determined at a sufficiently senior level within the Tribunal, or if the Chief Justice of the Court, following consultation with the President, thinks it appropriate.
278. This amendment will enable the standard provisions of the ART Bill to apply, simplifying processes for the Tribunal and its users, and supporting efficiency.
Items 12, 13, 14 and 15: Subsection 61CZD(4), section 61CZE, subsection 72TM(4) (heading) and subsection 72TM(4)
Terminology changes
279. These items amend terminology. See explanation of general terminology changes above.
Item 16: Subsection 110XC(5)
Terminology change and updating legislative reference
280. This item updates a legislative reference to a provision of the AAT Act to instead refer to the equivalent provision of the ART Bill. Section 67 of the AAT Act prescribes the fees payable to persons required to comply with a summons. This matter is prescribed in clause 77 of the ART Bill. This amendment is technical in nature and ensures subsection 110XC(5) continues to operate in substantively the same way in relation to the Tribunal.