Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)SCHEDULE 11 - INDUSTRY, SCIENCE AND RESOURCES
OUTLINE
618. This Schedule contains consequential amendments to the following Acts in the Industry, Science and Resources portfolio:
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- Australian Jobs Act 2013
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- Designs Act 2003
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- Industry Research and Development Act 1986
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- National Measurement Act 1960
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- Offshore Minerals Act 1994
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- Patents Act 1990
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- Plant Breeder's Rights Act 1994
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- Pooled Development Funds Act 1992
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- Trade Marks Act 1995
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- Venture Capital Act 2002
AMENDMENTS
General terminology changes
619. A number of items in this Schedule make simple terminology changes, such as repealing outdated references to the Administrative Appeals Tribunal, the AAT and the Administrative Appeals Tribunal Act 1975, and replacing them with references to the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.
Australian Jobs Act 2013
Items 1 and 2: Section 112 (heading) and 112
Terminology changes
620. These items amend terminology. See explanation of general terminology changes above.
Designs Act 2003
Items 3, 4, 5 and 6: Sections 129 and 136 (heading) and subsections 136(1), (1A) and (2)
Terminology changes
621. These items amend terminology. See explanation of general terminology changes above.
Item 7: Subsection 136(2)
Terminology change – Notice of review rights
622. This item amends terminology to replace a reference to the 'Administrative Appeals Tribunal Act 1975' with a reference to the 'Administrative Review Tribunal Act 2024'. This amendment is technical in nature, and ensures that a decision-maker must continue to notify relevant persons of their review rights to the Tribunal, as it does for the AAT.
Item 8: Subsection 136(4) (definition of decision )
Updating definition
623. 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.
Industry Research and Development Act 1986
Item 9: Section 30
Terminology change
624. This item amends terminology. See explanation of general terminology changes above.
Items 10 and 11: Subsection 30D(2) (note) and (3) (note)
Terminology change – Notice of review rights
625. These items make 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.
Repeal of requirement to give notice of deemed decision
626. This item also repeals the note under subsection 30D(3) of the Industry Research and Development Act 1986, which refers to a requirement under the AAT Act to provide notice to any person whose interests are affected by an internal review decision taken to be made under that subsection (a deemed decision).
627. This note was a mischaracterisation of the requirements under the AAT Act. Under paragraph 27A(2)(a) of the AAT Act, if a decision is deemed to have been made because a timeframe has expired (under subsection 25(5) of the AAT Act), notice of the deemed decision does not need to be provided to affected persons.
628. These matters are prescribed in the ART Bill at clause 16 (decision taken to be made if timeframe expires) and subparagraph 266(6)(b)(i) (no requirement to give notice for a deemed decision under clause 16).
629. This item, by repealing the note under subsection 30D(3), removes this mischaracterisation, and removes the explicit requirement to give notice of a deemed decision under that subsection.
Items 12, 13 and 14: Paragraph 30D(4)(b), section 30E (heading) and subsection 30E(1)
Terminology changes
630. These items amend terminology. See explanation of general terminology changes above.
Item 15: Subsection 30E(2)
Updating legislative reference
631. This item updates a legislative reference to a provision of the AAT Act to instead refer to the equivalent provision of the ART Bill. Subsection 43(6) of the AAT Act prescribes when decisions of the AAT are taken to be decisions of the decision-maker, and when such decisions take effect. These matters are prescribed in subclauses 108(2) and (4) of the ART Bill. This amendment is technical in nature and ensures that subsection 30E(2) of the Industry Research and Development Act 1986 continues to operate in substantively the same way in relation to the Tribunal.
Item 16: Paragraph 30E(2)(a)
Updating legislative reference
632. 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 43 of the AAT Act prescribes the types of decisions the Tribunal may make when reviewing a decision (to affirm the decision, vary it, or set it aside and either substitute a new decision or remit to the decision-maker). This is prescribed in clause 105 of the ART Bill. This amendment is technical in nature and ensures paragraph 30E(2)(a) of the Industry Research and Development Act 1986 continues to operate substantively the same way in relation to the Tribunal.
Item 17: Subsection 30E(3)
Period for making applications for deemed decisions
633. This item repeals and substitutes subsection 30E(3) to maintain the existing timeframe for applying for review of a deemed decision.
634. Clause 18 of the ART Bill replaces section 29 of the AAT Act by providing that the general timeframe for making an application for review under the ART Bill will be prescribed by rules. The language of 'prescribed time' in subsection 30E(3) is drawn from paragraph 29(1)(d) of the AAT Act, and is not replicated in clause 18 of the ART Bill.
635. This item substitutes a new subsection 30E(3), which provides that despite clause 18 of the ART Bill, an application must be made within 28 days of the deemed decision. According to this item, this time is to be calculated beginning on the day on which the decision is taken to be made, and ending 28 days after that day. The amendment is technical in nature and ensures that subsection 30E(3) continues to operate in substantively the same way.
Item 18: Subsection 30E(4)
Repeal provision about private hearings
636. This item repeals subsection 30E(4) which provides that proceedings for AAT review are to be held in private and that the AAT may give orders and directions during the proceedings as specified in the AAT Act.
637. Repealing this subsection has the effect that clauses 69 and 70 of the ART Bill will instead apply to proceedings for review of decisions made under the Industry Research and Development Act 1986. Clause 69 requires hearings to be in public hearings, except where practice directions or the Tribunal require the hearing to take place in private. Clauses 69 and 70 empower the Tribunal to give directions as to the persons who may be present and directions about non-publication and non-disclosure equivalent to those referred to in subsections 35(3) and (4) of the AAT Act.
638. By repealing subsection 30E(4), this item harmonises the approach to public and private hearings in the ART under the Industry Research and Development Act 1986.
Item 19: Subparagraph 31E(1)(b)(ii)
Terminology change
639. This item amends terminology. See explanation of general terminology changes above.
National Measurement Act 1960
Item 20: Paragraph 18QC(3)(a)
Terminology change
640. This item amends terminology. See explanation of general terminology changes above.
Item 21: Paragraph 18QC(3)(b)
Terminology change and updated language
641. This item amends terminology. See explanation of general terminology changes above.
642. This item also makes an amendment that is technical in nature, to more accurately align with the language used in the ART Bill. Rather than referring to an application to the Tribunal being 'determined or abandoned', the ART Bill generally refers to applications being 'withdrawn or finally determined'. This amendment reflects that language. This simple harmonisation of language does not affect the operation of paragraph 18QC(3)(b).
Items 22 and 23: Section 19J (heading) and subsection 19J(1)
Terminology changes
643. These items amend terminology. See explanation of general terminology changes above.
Offshore Minerals Act 1994
Items 24 and 25: Section 406
Updating definition
644. Item 24 updates the definition of decision so that it refers to its meaning under the ART Bill rather than its meaning under the AAT Act. Item 25 repeals the note to the provision which sets out the meaning of decision under the AAT Act. See explanation of general terminology changes above.
Items 26 and 27: Paragraphs 407(6)(b) and (c)
Terminology changes – Notice of review rights
645. These items make 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.
646. Item 27 also removes the reference to section 28 of the AAT Act. Section 28 of the AAT Act provides that, subject to exceptions, people whose interests are affected by the reviewable decision may seek a statement of reasons for the decision. By removing the pinpoint reference to section 28 of the AAT Act, and instead referring generally to the ART Bill, this item ensures that paragraph 407(6)(c) continues to operate in substantively the same way in relation to the Tribunal.
Item 28: Subsection 407(9)
Terminology change
647. This item amends terminology. See explanation of general terminology changes above.
Patents Act 1990
Items 29 and 30: Subsections 224(1) and (1A)
Terminology changes
648. These items amend terminology. See explanation of general terminology changes above.
Item 31: Subsection 224(2)
Terminology changes – Notice of review rights
649. 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.
Item 32: Subsection 224(4) (definition of decision )
Updating definition
650. 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 33 and 34: Subsections 227AB(3) and (4) and subsection 228(4C)
Terminology changes
651. These items amend terminology. See explanation of general terminology changes above.
Plant Breeder's Rights Act 1994
Items 35, 36, and 37: Subsection 3(1)
Updating definitions
652. Items 35 and 36 repeal the definitions of 'AAT' and 'AAT Act', consequential to the repeal of the AAT Act by Consequential Bill 1. Item 37 inserts the new definition of 'ART' and 'ART Act', consequential to the establishment of the Tribunal by the ART Bill.
Item 38: Subsection 3(1) (definition of relevant proceedings )
Updating definitions
653. Item 38 updates the definition of relevant proceedings to refer to proceedings in the ART rather than the AAT.
654. As amended by this item, the definition of relevant proceedings in subsection 3(1) of the Plant Breeder's Rights Act 1994 encompasses proceedings in a court, or proceedings (within the meaning of the ART Act) in the ART, in relation to only certain matters under the Plant Breeder's Rights Act 1994, namely: the grant of the PBR, the infringement of the PBR, or a decision to revoke, or not to revoke, the PBR.
655. By adding 'proceedings (within the meaning of the ART Act) in the ART', this item makes it clear that the term 'relevant proceedings' under the Plant Breeder's Rights Act 1994 also includes the types of proceedings defined in clause 4 of the ART Bill. These include an application for review of a reviewable decision, and also applications ancillary to that review (for example, an application under subclause 270(2) to obtain reasons for a reviewable decision, or an application under subclause 271(2) to obtain adequate statement of reasons).
Items 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49 and 50: Subsections 19(7) (note), 19(10) (note), 19(11) (note), 21(5) (note 2), 30(5) (note), 31(6) (note), 34(1) (note), 37(1) (note), 37(2B) (note), 38(5) (note), 39(2) (note), and 39(3)
Terminology changes
656. These items amend terminology. See explanation of general terminology changes above.
Items 51 and 52: Paragraphs 39(5)(a) and (b)
Terminology changes and updating legislative references
657. Items 51 and 52 update legislative references to provisions of the AAT Act, subsections 44A(2) and 44A(2A), to instead refer to the equivalent provisions of the ART Bill, clauses 178(2) and 179(4).
658. A decision of the AAT can be appealed to the FCA. Under subsection 44A(2) of the AAT Act, the FCA has the power to stay or otherwise affect the operation or implementation of the decision of the AAT or of the agency. The FCA can transfer an appeal to the FCFCOA, and in such cases, the FCFCOA can also make orders under subsection 44A(2A) of the AAT Act. These powers are conferred in subclauses 178(2) and 179(4) of the ART Bill, respectively.
659. Items 51 and 52 amend paragraphs 39(5)(a) and (b) of the Plant Breeder's Rights Act 1994 to clarify that these powers remain unaffected by section 39 of that Act.
660. These amendments are technical in nature and ensure subsection 39(5) of the Plant Breeder's Rights Act 1994 continues to operate substantively the same way in relation to the Tribunal.
Items 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65 and 66: Subsections 39(5), 40(8) (note), 40(12) (note 2), 41(1A) (note), 41A(5) (note), 41B(3) (note) and 41D(1) (note 1), paragraph 41D(7)(b) and subsections 41E(1) (note), 44E(12) (note), paragraph 48(2)(b), subsection 49(3) (note), and paragraphs 50(6)(a) and 50(6)(b)
Terminology changes
661. These items amend terminology. See explanation of general terminology changes above.
Items 67 and 68: Paragraphs 50(7)(a) and (b)
Terminology changes and updating legislative references
662. These items update legislative references to provisions of the AAT Act, subsections 44A(2) and 44A(2A), to instead refer to the equivalent provisions of the ART Bill, clauses 178(2) and 179(4).
663. A decision of the AAT can be appealed to the FCA. Under subsection 44A(2) of the AAT Act, the FCA has the power to stay or otherwise affect the operation or implementation of the decision of the AAT or of the agency. The FCA can transfer an appeal to the FCFCOA, and in such cases, the FCFCOA can also make orders under subsection 44A(2A) of the AAT Act. These powers are conferred in subclauses 178(2) and 179(4) of the ART Bill, respectively.
664. Items 66 and 67 amend paragraphs 50(7)(a) and (b) of the Plant Breeder's Rights Act 1994 to clarify that these powers remain unaffected by section 50 of that Act.
665. These amendments are technical in nature and ensure subsection 50(7) of the Plant Breeder's Rights Act 1994 continues to operate substantively the same way in relation to the Tribunal.
Items 69 and 70: Subsection 50(10) (note) and section 62A
Terminology changes
666. These items amend terminology. See explanation of general terminology changes above.
Item 71: Subsection 76B (note)
Terminology change and minor error correction
667. This item amends terminology. See explanation of general terminology changes above.
668. It also corrects a minor cross-referencing error in the note under subsection 76B(3), so that it correctly refers to subsection 76B(3) about substituted decisions.
Items 72 and 73: Subsections 77(1) and 77(1A)
Terminology changes
669. These items amend terminology. See explanation of general terminology changes above.
Item 74: Subsection 77(2)
Terminology changes, updating legislative reference, and extensions of time
670. This item updates a legislative reference to a provision of the AAT Act to instead refer to the equivalent provision of the ART Bill. Subsection 77(2) of the Plant Breeder's Rights Act 1994 has the effect of removing the AAT's power to, by order, extend the timeframe to apply to the AAT for review of a decision, under subsection 29(7) of the AAT Act. The equivalent provision in the ART Bill is subclause 19(2). The amendment retains the modification of the Tribunal's power to extend the timeframe to apply to the ART for review of decisions of the Minister or Registrar under the Plant Breeder's Rights Act 1994.
671. PBR are commercially valuable, exclusive rights of limited duration. PBR give rights of action against third parties for infringement, including the recovery of damages. Administrative decisions under the Plant Breeder's Rights Act 1994 concern the granting, limitation and revocation of PBR. To allow late review of PBR decisions by the ART would risk changing what were non-infringing acts by third parties into infringing acts retroactively. To balance the interests of applicants, requesters and grantees, with the interests of third parties, it is appropriate to require that ART review of PBR decisions always be sought within the period prescribed in the rules under clause 18 of the ART Bill, with no possibility of extension.
Item 75: Subsection 77(3)
Terminology change
672. This item amends terminology. See explanation of general terminology changes above.
Item 76: Subsection 77(4) (definition of decision )
Updating definition
673. 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.
Pooled Development Funds Act 1992
Item 77: Paragraph 55(7)(c)
Terminology changes – Notice of review rights
674. 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.
Items 78 and 79: Section 56 (heading) and subsection 56(1)
Terminology changes
675. These items amend terminology. See explanation of general terminology changes above.
Trade Marks Act 1995
Items 80, 81, 82, 83 and 84: Subsections 99A(2), 136B(3), 175(5), 178(5), 180(4), 180A(4), 222A(4), 224(7) and 227(1)
Terminology changes
676. These items amend terminology. See explanation of general terminology changes above.
Item 85: Paragraph 227(1)(b)
Terminology changes – Notice of review rights
677. 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.
Item 86: Subsection 227(3)
Updating definition
678. 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 87 and 88: Subsection 228A(7) and paragraph 231(3)(d)
Terminology changes
679. These items amend terminology. See explanation of general terminology changes above.
Venture Capital Act 2002
Item 89: Paragraph 29-10(6)(c)
Terminology changes – Notice of review rights
680. 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.
Items 90 and 91: Section 29-15 (heading) and subsection 29-15(1)
Terminology changes
681. These items amend terminology. See explanation of general terminology changes above.
Retaining specialised standing rules
682. Amended subsection 29-15(1) of the Venture Capital Act 2002 retains the ability for an application to be made to the ART for review of a reviewable decision made by Industry Innovation and Science Australia, that has been confirmed or varied under section 29-10.
683. This change to subsection 29-15(1) flows through to subsection 29-15(2), to retain the modification that applies instead of the general rule for who may apply for administrative review of decisions, contained in section 27 of the AAT Act. The equivalent provision in the ART Bill is clause 17.
684. Subsection 29-15(2) overrides this general standing rule by providing that only the person affected by the decision may apply for review, and only after an internal review has been completed. The Venture Capital Act 2002 provides for administrative measures that are needed for the operation of the ITAAs. Subsection 29-15(2) of the Venture Capital Act 2002 is consistent with the standing rules in the ITAAs, which first require an applicant to apply for internal review of a decision before applying to the ART and only allow persons affected by a decision (rather than anyone whose interests are affected) to apply for review.