Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)SCHEDULE 10 - HOME AFFAIRS
OUTLINE
593. This Schedule contains consequential amendments to the following Acts in the Home Affairs portfolio:
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- AusCheck Act 2007
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- Australian Citizenship Act 2007
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- Aviation Transport Security Act 2004
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- Commerce (Trade Descriptions) Act 1905
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- Counter-Terrorism (Temporary Exclusion Orders) Act 2019
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- Customs Act 1901
AMENDMENTS
General terminology changes
594. A number of items in this Schedule make simple terminology changes, such as repealing outdated references to the Administrative Appeals Tribunal, the AAT and the Administrative Appeals Tribunal Act 1975, and replacing them with references to the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 continue to operate in substantively the same way in the new Tribunal.
AusCheck Act 2007
Items 1 and 2: Subparagraph 8(3)(a)(v) and subparagraph 10(3)(a)(v)
Terminology changes
595. These items amend terminology. See explanation of general terminology changes above.
Australian Citizenship Act 2007
Item 3: Subsection 52(1)
Terminology change
596. This item amends terminology. See explanation of general terminology changes above.
Item 4: Subsection 52(1)
External merits review of decisions under section 37 of the Citizenship Act
597. This item amends subsection 52(1) to provide merits review of refusal decisions made under section 37 of the Citizenship Act. Section 37 of the Citizenship Act provides for a person to apply for, and for the Minister to give the person, a notice of evidence of their Australian citizenship. Proposed new paragraph 52(1)(g) would allow for an application to be made to the Tribunal for review of a decision under section 37 of the Citizenship Act to refuse to give a person evidence of their Australian citizenship. There is currently no provision that allows the AAT to review a decision to refuse an application for evidence of Australian citizenship under section 37 of the Citizenship Act.
598. Extending the ability of the ART to review 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 independent review process that is faster and more accessible than judicial review.
Item 5: Subsection 52(3)
Terminology change
599. This item amends terminology. See explanation of general terminology changes above.
Aviation Transport Security Act 2004
Items 6, 7, 8, 9, and 10: Section 4, subsection 19(4) (note), section 126 (heading), subsections 126(1) and (2)
Terminology changes
600. These items amend terminology. See explanation of general terminology changes above.
Item 11: Subsection 126(3)(note)
Updating legislative references
601. 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 126(3) of the Aviation Transport Security Act 2004 remains accurate.
602. The note also states that when giving such notice, the decision-maker must have regard to the matters prescribed by the rules (if such rules have been prescribed under the ART Bill).
Commerce (Trade Descriptions) Act 1905
Items 12 and 13: Subsection 15(1), subsection 15(2) (definition of decision )
Terminology changes
603. These items amend terminology. See explanation of general terminology changes above.
Item 14: Subsection 15(2) (note)
Repealing note no longer necessary
604. This item repeals the note in section 15, consequential to the repeal of the AAT Act by Consequential Bill 1.
Counter-Terrorism (Temporary Exclusion Orders) Act 2019
Item 15: Subparagraph 23(1)(d)(i)
Terminology change and updating legislative reference
605. This item amends terminology. See explanation of general terminology changes above. It also changes the reference to 'Deputy President or senior member (of any level)' to 'Non-Judicial Deputy President or senior member', consequential to changes made in the ART Bill to terminology relating to member levels.
Item 16: Paragraph 23(5)(b)
Terminology change
606. This item amends terminology. See explanation of general terminology changes above.
Customs Act 1901
Item 17: Paragraph 67EM(5)(b)
Terminology change and clarifying provision
607. This item repeals and substitutes paragraph 67EM(5)(b) of the Customs Act 1901.
608. Paragraph 67EM(5)(b) provides that where a special reporter makes an application to the AAT for review of the Comptroller-General of Customs' decision to cancel their special reporter registration under subsection 67EM(4), the cancellation decision takes effect when the AAT affirms the decision of the Comptroller-General of Customs.
609. This item amends paragraph 67EM(5)(b) to add that where the applicant withdraws their application, or the Tribunal dismisses the application, the cancellation decision takes effect from when the application is withdrawn or dismissed. This amendment aims to clarify the operation of the cancellation decision if the review proceeding concludes other than with a substantive decision by the Tribunal.
610. This item also amends terminology. See explanation of general terminology changes above.
Items 18, 19, 20 and 21: Paragraph 269N(1)(b), paragraph 269SD(2)(b), section 269SHA (heading) and subsection 269SHA(1)
Terminology changes
611. These items amend terminology. See explanation of general terminology changes above.
Item 22: Subsection 269SHA(3)
Terminology change
612. This item amends terminology and removes the reference to subsection 30(1A) of the AAT Act to reflect modern drafting practices. This amendment is technical in nature and ensures subsection 269SHA(3) continues to operate in substantively the same way in relation to the Tribunal.
Items 23 and 24 Subsection 269SHA(5) and subsection 273GA(1)
Terminology changes
613. These items amend terminology. See explanation of general terminology changes above.
Item 25: Subsection 273GA(8)
Updating definition
614. 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 26: Subsection 273H(1)
Terminology changes
615. This item amends terminology. See explanation of general terminology changes above.
Item 27: Subsection 273H(2)
Updating definition
616. 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 28: Subsection 273K(1)
Terminology changes – Notice of review rights
617. This item makes terminology changes to replace references to the 'Administrative Appeals Tribunal Act 1975' and the 'Administrative Appeals Tribunal' with references to the 'Administrative Review Tribunal Act 2024' and the 'Administrative Review Tribunal'. The amendments are technical in nature, and ensure that decision-makers must continue to notify relevant persons of their review rights to the Tribunal, as they do for the AAT.