Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)SCHEDULE 6 - EMPLOYMENT AND WORKPLACE RELATIONS
OUTLINE
309. This Schedule contains consequential amendments to the following Acts in the Employment and Workplace Relations portfolio:
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- Australian Apprenticeship Support Loans Act 2014
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- Fair Entitlements Guarantee Act 2012
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- Safety, Rehabilitation and Compensation Act 1988
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- Seafarers Rehabilitation and Compensation Act 1992
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- VET Student Loans Act 2016
AMENDMENTS
General terminology changes
310. A number of items in this Schedule make simple terminology changes, such as repealing outdated references to the Administrative Appeals Tribunal, the AAT and the Administrative Appeals Tribunal Act 1975, and replacing them with references to the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 relevant provisions under those laws continue to operate in substantively the same way in the new Tribunal.
Australian Apprenticeship Support Loans Act 2014
Item 1: Section 76
Terminology change
311. This item amends terminology. See explanation of general terminology changes above.
Item 2: Section 80 (note)
Updating legislative reference
312. 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 27A of the AAT Act requires a decision-maker to notify persons who are affected by the decision of the making of the decision, and their right to have the decision reviewed. This matter is prescribed in clause 266 of the ART Bill. This amendment is technical in nature and ensures the note to subsection 81(3) remains accurate.
Item 3: Paragraph 81(2)(b)
Terminology change
313. This item amends terminology. See explanation of general terminology changes above.
Item 4: Subsection 81(3) (note)
Updating legislative reference
314. 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 27A of the AAT Act requires a decision-maker to notify persons who are affected by the decision of the making of the decision, and their right to have the decision reviewed. This matter is prescribed in clause 266 of the ART Bill. This amendment is technical in nature and ensures the note to subsection 81(3) remains accurate.
Item 5: Section 82
Repeal and substitute section
315. This item repeals and substitutes section 82. Section 82 requires a reviewer to notify the AAT if they make a decision under subsection 81(3) and the decision is the subject of an application for review to the AAT. As amended, subsection 82(2) would require the reviewer to notify the Tribunal in the same circumstances. In addition, the reviewer would be further required by new paragraph 82(2)(b) to notify the person who applied to the Tribunal for review of the decision. This harmonises section 82 with similar provisions in other Commonwealth Acts, for example, section 37 of the Fair Entitlements Guarantee Act 2012, and ensures that the applicant is appropriately notified of the altered decision.
Item 6: Subsection 85(1) (note)
Updating legislative reference
316. 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 27A of the AAT Act requires a decision-maker to notify persons who are affected by the decision of the making of the decision, and their right to have the decision reviewed. This matter is prescribed in clause 266 of the ART Bill. This amendment is technical in nature and ensures the note to subsection 85(1) (note) remains accurate.
Items 7, 8, 9, 10, 11, 12 and 13: Division 3 of Part 4.2 (heading), section 86 (heading), section 86, section 87 (heading), subsections 87(1) and (2), section 88 (heading) and subsections 88(1) and (2)
Terminology changes
317. These items amend terminology. See explanation of general terminology changes above.
Fair Entitlements Guarantee Act 2012
Items 14 and 15: Subsection 37(2) and subsection 37(7) (heading)
Terminology changes
318. These items amend terminology. See explanation of general terminology changes above.
Item 16: Subsection 37(7)
Terminology changes
319. This item amends terminology so that the reference to the 'Registrar of the Administrative Appeals Tribunal' is substituted with the 'Administrative Review Tribunal'. This clarifies that if the Secretary varies or substitutes a new decision for the decision under review the Secretary must notify the Tribunal of the decision made on that review, rather than the Principal Registrar. This maintains consistency across similar provisions involving requirements for written notifications to the Tribunal. This amendment is technical in nature and ensures subsection 37(7) of the Fair Entitlements Guarantee Act 2012 continues to operate in substantively the same way in relation to the Tribunal.
Items 17, 18 and 19: Subdivision C of Division 2 of Part 6 (heading), section 40 (heading) and subsection 40(1)
Terminology changes
320. These items amend terminology. See explanation of general terminology changes above.
Item 20: Subsection 40(2)
Updating legislative references
321. This item updates a legislative reference to a provision in the AAT Act to instead refer to the equivalent provision of the ART Bill. Subsection 27(1) of the AAT Act deals with who may apply to the Tribunal for review of a decision. This matter is dealt with in clause 17 of the ART Bill. This amendment is technical in nature, and ensures subsection 40(2) of the Fair Entitlements Guarantee Act 2012 continues to operate in substantively the same way in relation to the Tribunal.
Items 21 and 22: Subsection 40(3) and subsection 41(1)
Terminology changes
322. These items amend terminology. See explanation of general terminology changes above.
Item 23: Subsection 41(4)
Updating legislative references
323. This item updates a legislative reference to subsection 43(1) of the AAT Act with a reference to the equivalent provision in the ART Bill, clause 54. Subsection 41(4) provides that section 41 has effect despite subsection 43(1) of the AAT Act. Consistent with section 43(1) of the AAT Act, clause 54 of the ART Bill allows the Tribunal to exercise all powers and discretions that are conferred on the decision-maker by an Act, or an instrument made under an Act, for the purpose of reviewing the decision.
324. Section 41 of the Fair Entitlements Guarantee Act 2012 provides that where the Tribunal makes a decision on the amount of advance a person may be eligible for, it cannot review or exercise the power of the Secretary under section 17 of the Act to reduce the amount of advance for a person's employment due to that person's debts to the employer. Subsection 41(4) clarifies that section 41 of the Fair Entitlements Guarantee Act 2012 applies despite subsection 43(1) of the AAT Act.
325. This amendment is technical in nature and ensures subsection 41(4) of the Fair Entitlements Guarantee Act 2012 continues to operate in substantively the same way in relation to the Tribunal.
Item 24: Subparagraph 50(2)(c)(iii)
Terminology changes
326. This item amends terminology. See explanation of general terminology changes above.
Safety, Rehabilitation and Compensation Act 1988
Items 25, 26, 27, 28, 29, 30, 31 and 32: Subsection 4(12), subsection 28(4), subsection 34R(1) and (2) (definition of decision ), subsection 60(1) (definition of decision ), paragraph 63(c), section 64 (heading) and subsection 64(1)
Terminology changes
327. These items amend terminology. See explanation of general terminology changes above.
Item 33: Subsection 64(3)
Updating legislative references
328. This item updates a legislative reference to the AAT Act with the equivalent provision of the ART Bill. Section 27 of the AAT Act provides that a person whose interests are affected by a reviewable decision may apply to the Tribunal for review of a decision. This matter is prescribed in clause 17 of the ART Bill.
329. This amendment is technical in nature and ensures that subsection 64(3) of the Safety, Rehabilitation and Compensation Act 1988 continues to operate in substantively the same way in relation to the Tribunal.
Items 34 and 35: Section 65 (heading) and subsection 65(1)
Terminology changes
330. These items amend terminology. See explanation of general terminology changes above.
Item 36: Subsection 65(3)
Updating legislative reference
331. 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 18C of the AAT Act deals with where sittings of the AAT are to be held and provides for sittings to be held in such places in Australia or an external Territory as are convenient. This matter is prescribed in clause 57 of the ART Bill. Subsection 65(3) of the Safety, Rehabilitation and Compensation Act 1988 instead provides, in relation to reviewable decisions under that Act, for sittings to be held in such places, whether within or outside of Australia, as are convenient. This allows persons who are outside of Australia and covered by the Safety, Rehabilitation and Compensation Act 1988 the ability to have their matter heard in person if appropriate and ensures they have the same review rights as those based in Australia. This amendment is technical in nature and ensures that subsection 65(3) of the Safety, Rehabilitation and Compensation Act 1988 continues to operate in substantively the same way in relation to the Tribunal.
Item 37: Subsection 65(4)
Period for making applications
332. This item amends subsection 65(4) of the Safety, Rehabilitation and Compensation Act 1988 to ensure that, despite the general rule for when to apply for review under clause 18 of the ART Bill, an application for review of a decision must be made within 60 days after the person has been notified of the decision. This maintains the position under the existing law.
333. This amendment is technical in nature and ensures subsection 65(4) of the Safety, Rehabilitation and Compensation Act 1988 continues to operate in substantively the same way in relation to the Tribunal.
334. This item also inserts a note to subsection 65(4) signalling that a person may apply to the ART to extend the period of applying for a review, under clause 19 of the ART Bill.
Items 38, 39, 40, 41, 42 and 43: Section 66 (heading), paragraph 66(1)(a), subsections 66(2) and (3), section 67 (heading), paragraphs 67(3)(e) and (4)(e) and subsections 67(7), (8), (9), (10), (11) and (12)
Terminology changes
335. These items amend terminology. See explanation of general terminology changes above.
Item 44: Subsection 67(13)
Repealing provision no longer necessary
336. This item repeals subsection 67(13) which provides for the Tribunal to tax or settle the amount of costs or order costs to be taxed by the Registrar or an officer of the Tribunal, where a responsible authority has been ordered to pay costs incurred by a claimant and there is no agreement between the parties as to the amount of the costs. Repealing this subsection has the effect that clause 115 of the ART Bill will instead apply to decisions made under the Safety, Rehabilitation and Compensation Act 1988. The effect of clause 115 of the ART Bill is the same as subsection 67(13), so the provision is not needed.
Item 45: Subsection 67(14)
Updating legislative references
337. 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 69A of the AAT Act sets out the procedure for taxing costs, where the Tribunal has made a costs order. This is dealt with in clause 115 of the ART Bill.
338. This amendment is technical in nature and ensures that subsection 67(14) of the Safety, Rehabilitation and Compensation Act 1988 continues to operate in substantively the same way in relation to the Tribunal
Seafarers Rehabilitation and Compensation Act 1992
Items 46, 47, 48, 49 and 50: Section 3 (definition of AAT ), subsection 42(4), section 74 and part 6 (heading)
Terminology changes
339. These items amend terminology. See explanation of general terminology changes above.
Items 51, 52 and 53: Subsection 76(1) (definitions of AAT Act and AAT extension application )
Updating definitions and legislative references
340. These items amend subsection 76(1) of the Seafarers Rehabilitation and Compensation Act 1992 to replace the definitions of 'AAT Act' and 'AAT extension application' with a definition of ART and ART extension application.
341. These items also update a legislative reference to a provision of the AAT Act to instead refer to the equivalent provision of the ART Bill. Subsection 29(7) of the AAT Act allows the Tribunal to extend the period for making an application to the Tribunal for review of a decision. This matter is prescribed in clause 19 of the ART Bill. This amendment is technical in nature and ensures that subsection 76(1) of the Seafarers Rehabilitation and Compensation Act 1992 continues to operate in substantively the same way in relation to the Tribunal.
Item 54: Subsection 76(1) (definition of decision )
Updating definition
342. 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 55, 56, 57 and 58: Section 80, paragraph 87(c), section 88 (heading) and subsection 88(1)
Terminology changes
343. These items amend terminology. See explanation of general terminology changes above.
Item 59: Subsection 88(2)
Updating legislative reference
344. This item updates a legislative reference to a provision in the AAT Act to instead refer to the equivalent provision of the ART Bill. Section 27 of the AAT Act provides that a person whose interests are affected by a reviewable decision may apply to the Tribunal for review of the decision. This matter is prescribed in clause 17 of the ART Bill. This amendment is technical in nature, and ensures subsection 88(2) of the Seafarers Rehabilitation and Compensation Act 1992 continues to operate in substantively the same way in relation to the Tribunal.
Items 60, 61 and 62: Division 3 of Part 6 (heading), section 89 (heading) and subsection 89(1)
Terminology changes
345. These items amend terminology. See explanation of general terminology changes above.
Item 63: Subsection 89(2)
Updating legislative reference
346. 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 18C of the AAT Act deals with where sittings of the AAT are to be held and provides for sittings to be held in such places in Australia or an external Territory as are convenient. This matter is prescribed in clause 57 of the ART Bill. Subsection 89(2) of the Seafarers Rehabilitation and Compensation Act 1992 instead provides, in relation to reviewable decisions under that Act, for sittings to be held in such places, whether within or outside of Australia, as are convenient. This allows persons who are outside of Australia and covered by the Seafarers Rehabilitation and Compensation Act 1992 the ability to have their matter heard in person if appropriate and ensures they have the same review rights as those based in Australia. This amendment is technical in nature and ensures subsection 89(2) of the Seafarers Rehabilitation and Compensation Act 1992 continues to operate in substantively the same way in relation to the Tribunal.
Item 64: Subsection 89(3)
Prescribed time for making applications
347. This item amends subsection 89(3) of the Seafarers Rehabilitation and Compensation Act 1992 to ensure that despite the general rule for when to apply for review under clause 18 of the ART Bill, an application for review of a decision must be made within 60 days after the person has been notified of the decision. This maintains the position under the existing law. This amendment is technical in nature and ensures subsection 89(3) of the Seafarers Rehabilitation and Compensation Act 1992 continues to operate in substantively the same way in relation to the Tribunal.
348. This item also inserts a note to subsection 65(4) signalling that a person may apply to the ART to extend the period of applying for a review, under clause 19 of the ART Bill.
Item 65: Subsection 89(4)
Terminology changes and updating legislative references
349. This item updates legislative references, replacing references to section 43, subsection 28(1) and paragraph 30(1)(b) of the AAT Act with references to the equivalent provisions of the ART Bill, clause 105, paragraph 22(1)(b) and subclause 268(1) respectively.
350. Subsection 89(4) ensures that where a Fund has become the employer of an employee due to a default event under the Seafarers Rehabilitation and Compensation Act 1992, the Fund is taken to be the decision-maker in relation to the decision under review at the Tribunal. It also ensures Tribunal proceedings are adjourned or postponed for a period of at least 28 days beginning on the day the Tribunal is made aware of the default event. This amendment is technical in nature and ensures that subsection 89(4) of the Seafarers Rehabilitation and Compensation Act 1992 continues to operate in substantively the same way in relation to the Tribunal.
351. This item also amends terminology. See explanation of general terminology changes above.
Items 66, 67, 68, 69, 70, 71, 72, 73 and 74: Section 90 (heading), subsections 90(1), (2), (2A) and (3), section 91 (heading), paragraphs 91(3)(e) and (4)(e), subsection 91(6), section 92 (heading) and subsections 92(1), (2), (3), (4) and (5)
Terminology changes
352. These items amend terminology. See explanation of general terminology changes above.
Item 75: Subsections 92(6) and (7)
Repealing provisions no longer necessary
353. This item repeals subsection 92(6) which provides for the Tribunal to tax or settle the amount of costs or order costs to be taxed by the Registrar or an officer of the Tribunal, where a responsible authority has been ordered to pay costs incurred by a claimant and there is no agreement between the parties as to the amount of the costs.
354. The item also repeals subsection 92(7) which has the effect that an employer who is ordered by the AAT to pay costs incurred is taken to be a party to the proceedings in which the order is made.
355. Repealing these subsections has the effect that clause 115 and paragraph 22(1)(b) of the ART Bill respectively will instead apply to decisions made under the Seafarers Rehabilitation and Compensation Act 1992. Clause 115 and paragraph 22(1)(b) of the ART Bill have the same effect as subsections 92(6) and 92(7) of the Seafarers Rehabilitation and Compensation Act 1992 and so the provisions are not needed.
Item 76: Paragraph 130(4)(b)
Terminology change
356. This item amends terminology. See explanation of general terminology changes above.
VET Student Loans Act 2016
Items 77, 78 and 79: Paragraph 77(2)(c), section 80 (heading), subsection 80(1) and subsection 80(2)
Terminology change
357. These items amend terminology. See explanation of general terminology changes above.