Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)SCHEDULE 12 - INFRASTRUCTURE
OUTLINE
685. This Schedule contains consequential amendments to the following Acts in the Infrastructure, Transport, Regional Development, Communications and the Arts portfolio:
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- Airports Act 1996
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- Broadcasting Services Act 1992
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- Civil Aviation Act 1988
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- Classification (Publications, Films and Computer Games) Act 1995
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- Coastal Trading (Revitalising Australian Shipping) Act 2012
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- Online Safety Act 2021
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- Telecommunications Act 1997
AMENDMENTS
General terminology changes
686. A number of items in this Schedule make simple terminology changes, such as repealing outdated references to the Administrative Appeals Tribunal, the AAT and the Administrative Appeals Tribunal Act 1975, and replacing them with references to the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.
Airports Act 1996
Items 1, 2, 3, and 4: Section 241, section 242 (heading), subsection 242(1) and subsection 242(3)
Terminology changes
687. These items amend terminology. See explanation of general terminology changes above.
Item 5: Subsection 242(5) (definition of decision )
Updating definition
688. 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 6 and 7: Subsection 242(6) (heading) and subsection 242(6)
Terminology changes
689. These items amend terminology. See explanation of general terminology changes above.
Broadcasting Services Act 1992
Items 8, 9, 10 and 11: Subparagraph 61AN(4C)(b)(ii), paragraph 61AN(4C)(e), subsection 61AZ(5) (heading) and subparagraph 61AZ(5)(b)(ii)
Terminology changes
690. These items amend terminology. See explanation of general terminology changes above.
Item 12: Subsection 61AZ(7)
When a decision of the Tribunal is finalised
691. This item repeals existing subsection 61AZ(7) and replaces it with a new subsection 61AZ(7). Existing subsection 61AZ(7) provides that an application before the AAT is taken not to have been finalised during the period of 28 days beginning on the day on which the AAT made its decision. This ensures that the Register of Controlled Media Groups is frozen while a decision of the Australian Communications and Media Authority in relation to a registerable media authority is under reconsideration to avoid any unacceptable media diversity situations occurring. New subsection 61AZ(7) provides that an application before the Tribunal is taken not to have been finalised until the period in which a person can appeal to the FCA has expired.
692. Under subclause 174(3) of the ART Bill, the appeal period to the FCA is paused if an application is made to refer a decision to the guidance and appeals for review. It is intended that the Register of Controlled Media Groups remains frozen during this period, including any pauses while an application to have a decision referred to the guidance and appeals panel is considered. If a person applies to have the Tribunal decision referred to the guidance and appeals panel, the period for applying to the FCA will not conclude until after the President decides not to refer the decision, or - if the referral is made - the guidance and appeals panel completes its review.
693. This amendment ensures that subsection 61AZ(7) continues to operate in substantively the same way in the Tribunal in that the decision of the Tribunal does not take effect until an applicant has exhausted all appeal rights, including to the guidance and appeals panel and to the FCA.
Item 13: Paragraphs 61AZ(8)(a) and (b)
Terminology changes
694. This item amends terminology. See explanation of general terminology changes above.
Item 14: Subsection 61AZ(12)
Regulations-making power
695. This item removes a reference to '28 days' in subsection 61AZ(12) which is no longer necessary, consequential to the amendment to subsection 61AZ(7) in item 12, as subsection 61AZ(7) no longer provides for a 28 day time period. This amendment ensures that subsection 61AZ(12) continues to operate in substantively the same way.
Items 15, 16, 17, 18 and 19: Part 14 (heading), section 204 (heading), subsections 204(1) to (4), paragraph 205(b) and clause 1 of Schedule 4
Terminology changes
696. These items amend terminology. See explanation of general terminology changes above.
Items 20 and 21: Clause 2 of Schedule 4
Updating definitions
697. Item 20 repeals the definition of AAT from Schedule 4, consequential to the repeal of the AAT Act by Consequential Bill 1. Item 21 inserts the new definition of ART, consequential to the establishment of the Tribunal by the ART Bill.
Items 22 and 23: Clause 62 of Schedule 4 (heading) and subclauses 62(5), (7) and (9)
Terminology changes
698. These items amend terminology. See explanation of general terminology changes above.
Item 24: Paragraph 63(a) of Schedule 4
Updating legislative reference
699. This item repeals existing paragraph 63(a) of Schedule 4 and replaces it with a new paragraph 63(a) to include a legislative reference to the ART Bill. Existing paragraph 63(a) of Schedule 4 provides that if the Australian Communications and Media Authority makes a decision that is reviewable under clause 62 of Schedule 4, it must include a statement of reasons. New paragraph 63(a) of Schedule 4 provides that it must include a statement of reasons within the meaning of the ART Bill. This reflects that the term 'statement of reasons' is now defined in clause 4 of the ART Bill.
Items 25 and 26: Paragraph 63(b) of Schedule 4 and paragraph 57(5)(a) of Schedule 6
Terminology changes
700. These items amend terminology. See explanation of general terminology changes above.
Item 27: Paragraph 57(5)(b) of Schedule 6
Updating legislative references
701. This item updates a legislative reference to a provision of the AAT Act to instead refer to the equivalent clause of the ART Bill. Subsection 41(2) of the AAT Act provides that the AAT may make orders staying or otherwise affecting the implementation of a decision that is under review by the AAT. This matter is prescribed in subclause 32(2) of the ART Bill. This amendment is technical in nature and ensures paragraph 57(5)(b) of Schedule 6 of the Broadcasting Services Act 1992 continues to operate in substantively the same way in relation to the Tribunal.
Items 28, 29 and 30: Clause 58 of Schedule 6 (heading), clause 58 of Schedule 6 and paragraph 59(b) of Schedule 6
Terminology changes
702. These items amend terminology. See explanation of general terminology changes above.
Civil Aviation Act 1988
Items 31 and 32: Paragraph 30DV(c) and section 30EB (example)
Terminology changes
703. These items amend terminology. See explanation of general terminology changes above.
Item 33: Subsection 31(1) (definition of decision )
Updating definition
704. 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 34, 35 and 36: Subsection 31(2), subsection 31(3) and subsection 31A(1)
Terminology changes
705. These items amend terminology. See explanation of general terminology changes above.
Item 37: Subsections 31A(4) and (5)
Updating legislative references
706. This item updates a legislative reference to a provision of the AAT Act to instead refer to the equivalent clause of the ART Bill. Subsection 41(2) of the AAT Act provides that the AAT may make orders staying or otherwise affecting the implementation of a decision that is under review by the AAT. This matter is prescribed in subclause 32(2) of the ART Bill. This amendment is technical in nature and ensures subsections 31A(4) and (5) of the Civil Aviation Act 1992 continue to operate in substantively the same way in relation to the Tribunal.
Classification (Publications, Films and Computer Games) Act 1995
Items 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48 and 49: Subsection 6H(6), paragraph 14B(4)(f), section 17D (heading), section 17D, section 22G (heading), section 22G, section 22J (heading), section 22J, paragraph 31(3)(f), subsection 91(3), subsection 91(5) (heading) and subsection 91(5)
Terminology changes
707. These items amend terminology. See explanation of general terminology changes above.
Coastal Trading (Revitalising Australian Shipping) Act 2012
Items 50, 51, 52, 53 and 54: Section 5, subsection 25(3) (note), subsection 59(3) (note), section 107 (heading) and subsections 107(1) to (4)
Terminology changes
708. These items amend terminology. See explanation of general terminology changes above.
Item 55: Subsection 107(4) (note)
Updating legislative reference
709. This item updates a legislative reference to a provision of the AAT Act to instead refer to the equivalent clause of the ART Bill. Section 41 of the AAT Act provides that the AAT may make orders staying or otherwise affecting the implementation of a decision that is under review by the AAT. This matter is prescribed in clause 32 of the ART Bill. This amendment is technical in nature and ensures that the note to subsection 107(4) of the Coastal Trading (Revitalising Australian Shipping) Act 2012 remains accurate.
Item 56: Subsection 107(5)
Terminology change
710. This item amends terminology. See explanation of general terminology changes above.
Item 57: Subsection 107(5) (note)
Updating legislative reference
711. This item updates a legislative reference to a provision of the AAT Act to instead refer to the equivalent clause of the ART Bill. Section 41 of the AAT Act provides that the AAT may make orders staying or otherwise affecting the implementation of a decision that is under review by the AAT. This matter is prescribed in clause 32 of the ART Bill. This amendment is technical in nature and ensures the note to subsection 107(5) of the Coastal Trading (Revitalising Australian Shipping) Act 2012 remains accurate.
Item 58: Subsections 107(6) and (7) (including the note)
When to apply
712. This item repeals subsections 107(6) and (7) (including the note following) which provide that applications must be made to the AAT within 20 business days after receiving a decision of the kind referred to in subsections 107(2), (3), (4) or (5), rather than the standard time period prescribed by subsection 29(2) of the AAT Act. Clause 18 of the ART Bill provides that the rules may provide the time limit for an application to the Tribunal, but that this cannot be less than 28 days after the day the decision is made. Repealing these subsections has the effect that the time limit for applying for review prescribed under clause 18 of the ART Bill will instead apply to decisions made under the subsections 107(2), (3), (4) and (5) of the Coastal Trading (Revitalising Australian Shipping) Act 2012.
Online Safety Act 2021
Items 59 and 60: Section 220 (heading) and section 220
Terminology changes
713. These items amend terminology. See explanation of general terminology changes above.
Radiocommunications Act 1992
Items 61 and 62: Section 5 (definition of AAT )
Updating definition
714. Item 61 repeals the definition of AAT, consequential to the repeal of the AAT Act by Consequential Bill 1. Item 62 inserts the new definition of ART, consequential to the establishment of the Tribunal by the ART Bill.
Items 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74 and 75: Paragraph 116(4)(b), subsection 231(7), paragraph 287(1)(b), paragraph 291(1)(a), paragraph 291(b), section 292 (heading), section 292, paragraph 3(2)(b) of Part 1 of the Schedule, paragraph 3(2)(c) of Part 1 of the Schedule, paragraph 2(1)(c) of Part 2 of the Schedule, clause 7 of Part 2 of the Schedule, subclause 7(1) of Part 2 of the Schedule and subclause 7(2) of Part 2 of the Schedule
Terminology changes
715. These items amend terminology. See explanation of general terminology changes above.
Item 76: Subclause 7(3) of Part 2 of the Schedule
When to apply
716. Clause 18 of the ART Bill provides that the rules may provide the time limit for an application to the Tribunal, but that this cannot be less than 28 days after the day the decision is made. Item 71 provides contrary to subclause 18(1) of the ART Bill in specifying the time limit of 90 days for lodgement of an application for Tribunal review of reviewable determinations under the Part 2 of the Schedule of the Radiocommunications Act 1992. The generous application period is a long-standing arrangement in recognition of the complex nature of issues relating to determinations of liability and compensation.
Items 77 and 78: Subclauses 7(4) and (5) of Part 2 of the Schedule and subclauses 8(3) and 9(4) of Part 2 of the Schedule
Terminology changes
717. These items amend terminology. See explanation of general terminology changes above.
Telecommunications Act 1997
Item 79: Subparagraphs 56AA(7)(b)(iii) and (iv)
When a decision of the Tribunal is finalised
718. This item repeals existing subparagraphs 56AA(7)(b)(iii) and (iv) of the Telecommunications Act 1997 and replaces it with new subparagraphs 56AA(7)(b)(iii), (iv) and (v). Existing subparagraphs 56AA(7)(b)(iii) and (iv) provide that an application before the AAT is taken not to have been finalised during the period of 28 days beginning on the day on which the AAT made its decision.
719. Of relevance to subparagraphs 56A(7)(b)(iii), (iv) and (v), subclause 174(3) of the ART Bill provides that the period for appealing a decision of the ART to the FCA is paused if a party applies to have a decision of the ART referred to the guidance and appeals panel for review.
720. For the purposes of subparagraphs 56AA(7)(b)(iii), (iv) and (v), an application for review of the decision by the Tribunal would not be finalised by the Tribunal until the below scenarios occur:
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- if a party does not seek to have a decision referred to the guidance and appeals panel or if the President refuses an application to have a decision referred to the guidance and appeals panel for review, the end of the period in which an appeal can be made to the FCA under clause 172 of the ART Bill
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- if a decision is referred to the guidance and appeals panel during the time in which an appeal could be made to the FCA, the end of the period within which an appeal can be made to the FCA from a decision of the guidance and appeals panel, or
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- if a party makes an appeal to the FCA during the appeal period from either a decision of the ART or a decision of the guidance and appeals panel, when the appeal to the FCA is determined.
721. This amendment ensures that the decision of the Tribunal does not take effect and that a deemed carrier license would remain in force until an applicant has exhausted all appeal rights, including to the guidance and appeals panel and to the FCA.
Items 80, 81, 82 and 83: Paragraph 58A(3)(b), subsection 314A(5C), section 554 and subparagraph 556(1)(b)(i)
Terminology changes
722. These items amend terminology. See explanation of general terminology changes above.
Item 84: Subparagraph 557(1)(b)(ii)
Updating legislative reference
723. This item updates a legislative reference, replacing the reference to section 28 of the AAT Act in subparagraph 557(1)(b)(ii) with a reference to the equivalent provision in the ART Bill, clause 268. Section 28 of the AAT Act, and the equivalent provision in the ART Bill, clause 268, allow a person whose interests are affected by a decision to request a statement of reasons from the decision-maker. Subparagraph 557(1)(b)(ii) of the Telecommunications Act 1997 requires that notice of certain decisions under that Act include notice that a person may make a request for a statement of reasons under section 28 of the AAT Act.
724. This amendment is technical in nature and ensures that subparagraph 557(1)(b)(ii) of the Telecommunications Act 1997 continues to operate in substantively the same way, so that a decision-maker must notify relevant persons that they may request a statement of reasons under the ART Bill.
Item 85: Paragraph 561(1)(a)
Terminology changes
725. This item amends terminology. See explanation of general terminology changes above.
Item 86: Paragraph 561(1)(b)
Updating legislative reference
726. This item updates a legislative reference, replacing the reference to section 28 of the AAT Act in paragraph 561(1)(b) with a reference to the equivalent provision in the ART Bill, clause 268. Section 28 of the AAT Act, and the equivalent provision in the ART Bill, clause 268, allow a person whose interests are affected by a decision to request a statement of reasons from the decision-maker. Paragraph 561(1)(b) of the Telecommunications Act 1997 requires that notice of certain decisions under that Act include notice that a person may make a request for a statement of reasons under section 28 of the AAT Act.
727. This amendment is technical in nature and ensures that paragraph 561(1)(b) of the Telecommunications Act 1997 continues to operate in substantively the same way, so that a decision-maker must notify relevant persons that they may request a statement of reasons under the ART Bill.
Items 87, 88, 89, 90 and 91: Section 562 (heading), section 562, clause 35 of Schedule 3 (heading), subclause 35(1) of Schedule 3, subclause 35(2) of Schedule 3
Terminology changes
728. These items amend terminology. See explanation of general terminology changes above.
Item 92: Subclause 35(4) of Schedule 3 (definition of decision )
Updating definition
729. 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 93 and 94: Paragraph 57A(3)(b) of Schedule 3A and paragraph 72A(3)(b) of Schedule 3A
Terminology changes
730. These items amend terminology. See explanation of general terminology changes above.