Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)SCHEDULE 15 - ACTS WITH STATE AND TERRITORY CONSULTATION REQUIREMENTS
OUTLINE
827. This Schedule contains consequential amendments to the following Commonwealth Acts which were subject to requirements under intergovernmental agreements for the Commonwealth to consult with the States and Territories:
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- Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994
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- Agricultural and Veterinary Chemicals Act 1994
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- Agricultural and Veterinary Chemicals (Administration) Act 1992
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- Agricultural and Veterinary Chemicals Code Act 1994
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- Australian Education Act 2013
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- Criminal Code Act 1995
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- Fair Work Act 2009
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- Gene Technology Act 2000
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- Greenhouse and Energy Minimum Standards Act 2012
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- Mutual Recognition Act 1992
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- National Vocational Education and Training Regulator Act 2011
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- Personal Property Securities Act 2009
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- Research Involving Human Embryos Act 2002
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- Trans-Tasman Mutual Recognition Act 1997
PART 1 - MAIN AMENDMENTS
General terminology changes
828. A number of items in this Schedule make simple terminology changes, such as repealing outdated references to the Administrative Appeals Tribunal, the AAT and the Administrative Appeals Tribunal Act 1975, and replacing them with references to the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.
Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994
Item 1: Subsection 18(9)
Updating legislative references
829. 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 29 of the AAT Act prescribes the manner of applying for review to the Tribunal, including the time in which an application for review must be made. This reference has been updated to reflect the equivalent provision in the ART Bill (clause 18).
Item 2: Subsection 18(10)
Updating legislative references
830. 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 41 of the AAT Act deals with the operation and implementation of a decision that is subject to review. This reference has been updated to reflect the equivalent provision in the ART Bill (clause 32).
Agricultural and Veterinary Chemicals (Administration) Act 1992
Item 3: Paragraphs 69D(1C)(a) and (b)
Terminology changes and updating legislative references
831. This item repeals and substitutes paragraphs 69D(1C)(a) and (b) to reflect terminology and provisions in the ART Bill. The provisions operate in substantively the same way as the existing law. The provisions require the decision-maker to notify relevant persons of their review rights for a decision and that they may request a statement of reasons under the ART Bill.
832. The legislative reference to section 28 of the AAT Act is replaced with a reference to the equivalent provision under the ART Bill (clause 268). Consistent with section 28 of the AAT Act, under clause 268 ART Bill, a person whose interests are affected by a decision may make a written request to the decision-maker to give the person a statement of reasons for the decision.
833. Subsection 28(4) of the AAT Act provides that a person is not entitled to request a statement of reasons if such a statement has already been given. Under the equivalent provision in the ART Bill, the decision-maker may refuse the request if the statement of reasons has already been provided for the decision. Although the provision amended by this item does not specifically refer to this equivalent provision as this is unnecessary, a person's right to request reasons is still subject to this qualification.
834. This item replaces the reference to a 'statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision', with a reference to a 'statement of reasons'. The ART Bill includes a definition of a statement of reasons, which includes each of these elements in the original provision.
Agricultural and Veterinary Chemicals Code Act 1994
Item 4: Paragraphs 168(1)(a) and (b) of the Code set out in the Schedule
Terminology changes and updating legislative references
835. This item repeals and substitutes paragraphs 168(1)(a) and (b) to reflect terminology and provisions in the ART Bill. The provisions operate in substantively the same way as the existing law. The provisions require the decision-maker to notify relevant persons of their review rights for a decision and that they may request a statement of reasons under the ART Bill.
836. The legislative reference to section 28 of the AAT Act is replaced with a reference to the equivalent provision under the ART Bill (clause 268). Consistent with section 28 of the AAT Act, under clause 268 of the ART Bill, a person whose interests are affected by a decision may make a written request to the decision-maker to give the person a statement of reasons for the decision.
837. Subsection 28(4) of the AAT Act provides that a person is not entitled to request a statement of reasons if such a statement has already been given. Under the equivalent provision in the ART Bill, the decision-maker may refuse the request if the statement of reasons has already been provided for the decision. Although the provision amended by this item does not specifically refer to this equivalent provision as this is unnecessary, a person's right to request reasons is still subject to this qualification.
838. This item replaces the reference to a 'statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision', with a reference to a 'statement of reasons'. The ART Bill includes a definition of a statement of reasons, which includes each of these elements in the original provision.
Australian Education Act 2013
Item 5: Subsection 122(4)
Updating legislative references
839. 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 27(1) 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 reference has been updated to reflect the equivalent provision in the ART Bill (clause 17).
Criminal Code Act 1995
Items 6 and 7: Section 72.30 of the Criminal Code (heading) and subsections 72.30(1) and (2) of the Criminal Code
Terminology changes
840. These items amend terminology. See explanation of general terminology changes above.
Item 8: Paragraph 105.47(2)(f) of the Criminal Code
Annual report
841. This item amends paragraph 105.47(2)(f) to omit the words "or that the Administrative Appeals Tribunal has declared to be void". This is consequential to the amendments outlined in item 9 which repeal subsubsections 105.51(5) to (9).
Item 9: Subsections 105.51(5) to (9) of the Criminal Code
Review of preventative detention order decisions
842. This item repeals subsections 105.51(5) to (9) of the Criminal Code. Subsections 105.51(5) to (9) enable the Administrative Appeals Tribunal to review PDO decisions on their merits, void such decisions, and award compensation to an affected person. The effect of this item is to remove the ability for individuals to seek administrative review of PDO decisions, and leave the review of PDO decisions to the purview of the courts, pursuant to existing judicial review mechanisms.
843. Judicial review of PDO decisions is provided for under existing subsection 105.51(1) and section 105.52 of the Criminal Code, as well as section 39B of the Judiciary Act 1903 and section 75(v) of the Constitution.
844. Providing for only judicial review of PDO decisions is appropriate and addresses the risk that sections 105.51(5) and (7) of the Criminal Code could be construed as vesting federal judicial power in a body other than a court, contrary to Chapter III of the Constitution. It also reflects the seriousness and extraordinary nature of PDO decisions, and the courts' expertise in handling such matters.
845. The remedies currently available to an affected individual through the administrative review mechanism (voiding of a PDO decision and an award of compensation) are also available through judicial review.
Fair Work Act 2009
Items 10 and 11: Section 12
Updating definitions
846. These items repeal the defined term 'AAT presidential member' and replace it with the new term defined term 'ART President or Deputy President'.
847. The new term 'ART President or Deputy President' covers the equivalent roles to those covered by the term 'AAT presidential member'. This amendment is technical in nature and ensures that that the Fair Work Act 2009 continues to operate in substantively the same way in relation to the Tribunal.
Gene Technology Act 2000
Items 12: Subsection 19(3)
Terminology change
848. This item repeals and substitutes subsection 19(3) to update terminology, but otherwise retains the effect that the ART Bill applies to a 'corresponding State law' (within the meaning of the Gene Technology Act 2000). The substituted subsection 19(3) reflects the terminology of the ART Bill, which does not use the term 'enactment' in this context.
Greenhouse and Energy Minimum Standards Act 2012
Items 13 and 14: Section 3 (paragraph beginning "Decisions about registration") and section 163 (paragraph beginning "Reviewable decisions made by")
Terminology changes
849. These items amend terminology. See explanation of general terminology changes above.
Item 15: Subsection 167(3)
Updating legislative references
850. 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 27(1) 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 reference has been updated to reflect the equivalent provision in the ART Bill (subclause 17(1)).
Mutual Recognition Act 1992
Item 16: Paragraphs 34(3)(a) and (b)
Terminology changes and updating legislative references
851. This item repeals and substitutes paragraphs 34(3)(a) and (b) to reflect terminology and provisions in the ART Bill. The provisions operate in substantively the same way as the existing law. The provisions require the decision-maker to notify relevant persons of their review rights for a decision and that they may request a statement of reasons under the ART Bill.
852. The legislative reference to section 28 of the AAT Act is replaced with a reference to the equivalent provision under the ART Bill (clause 268). Consistent with section 28 of the AAT Act, under clause 268 ART Bill, a person whose interests are affected by a decision may make a written request to the decision-maker to give the person a statement of reasons for the decision.
853. Subsection 28(4) of the AAT Act provides that a person is not entitled to request a statement of reasons if such a statement has already been given. Under the equivalent provision in the ART Bill, the decision-maker may refuse the request if the statement of reasons has already been provided for the decision. Although the provision amended by this item does not specifically refer to this equivalent provision as this is unnecessary, a person's right to request reasons is still subject to this qualification.
854. This item replaces the reference to a 'statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision', with a reference to a 'statement of reasons'. The ART Bill includes a definition of a statement of reasons, which includes each of these elements in the original provision.
National Vocational Education and Training Regulator Act 2011
Item 17: Subsection 59(2)
Time when Tribunal decisions come into effect
855. This item amends subsection 59(2) to clarify when the cancellation of a person's VET qualification or VET statement of attainment takes effect.
856. Subsection 59(2) provides that, if the conditions in paragraphs 59(2)(a) to (c) are met, the cancellation takes effect when an appeal to the AAT relating to the cancellation decision is 'finally determined or otherwise disposed of'. This item replaces the reference to the time when the 'appeal is finally determined or otherwise disposed of' with a reference to the time when the 'decision of the Tribunal comes into operation'. The effect of this amendment is to remove the ambiguity associated with the existing subsection and provide clarity as to when a cancellation decision takes effect.
Item 18: Subsection 197(3)
Terminology changes
857. This item repeals and substitutes subsection 197(3) to update terminology, but otherwise retains the effect that the ART Bill applies to a 'corresponding State law' (within the meaning of the National Vocational Education and Training Regulator Act 2011). The substituted subsection 1 97(3) reflects the terminology of the ART Bill, which does not use the term 'enactment' in this context.
Research Involving Human Embryos Act 2002
Item 19: Subsection 45(3)
Terminology changes
858. This item repeals and substitutes subsection 45(3) to update terminology, but otherwise retains the effect that the ART Bill applies to a 'corresponding State law' (within the meaning of the Research Involving Human Embryos Act 2002). The substituted subsection 45(3) reflects the terminology of the ART Bill, which does not use the term 'enactment' in this context.
Trans-Tasman Mutual Recognition Act 1997
Item 20: Subsection 4(1) (definition of Australian Tribunal )
Terminology changes
859. This item amends terminology. See explanation of general terminology changes above.
Item 21: Paragraphs 33(3)(a) and (b)
Terminology changes and updating legislative references
860. This item repeals and substitutes paragraphs 33(3)(a) and (b) to reflect terminology and provisions in the ART Bill. The provisions operate in substantively the same way as the existing law. The provisions require the decision-maker to notify relevant persons of their review rights for a decision and that they may request a statement of reasons under the ART Bill.
861. The legislative reference to section 28 of the AAT Act is replaced with a reference to the equivalent provision under the ART Bill (clause 268). Consistent with section 28 of the AAT Act, under clause 268 ART Bill, a person whose interests are affected by a decision may make a written request to the decision-maker to give the person a statement of reasons for the decision.
862. Subsection 28(4) of the AAT Act provides that a person is not entitled to request a statement of reasons if such a statement has already been given. Under the equivalent provision in the ART Bill, the decision-maker may refuse the request if the statement of reasons has already been provided for the decision. Although the provision amended by this item does not specifically refer to this equivalent provision as this is unnecessary, a person's right to request reasons is still subject to this qualification.
863. This item replaces the reference to a 'statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision', with a reference to a 'statement of reasons'. The ART Bill includes a definition of a statement of reasons, which includes each of these elements in the original provision.
Item 22: Subsection 35(3)
Updating legislative references
864. This item updates the legislative reference to the AAT Act with the equivalent provision of the ART Bill. Paragraph 19A(1)(a) of the AAT Act empowers the President to give written directions in relation to members who are to constitute the AAT for the purposes of a proceeding. This reference has been updated to reflect the equivalent provision in the ART Bill (subclause 37(1)).
Item 23: Subsection 35(5)
Updating terminology and legislative references
865. This item updates terminology and replaces references to provisions of the AAT Act with the broadly equivalent provisions of the ART Bill.
866. Subsection 35(5) of the Trans-Tasman Mutual Recognition Act provides that a reference to a 'member' in specified parts of the AAT Act includes a reference to a person included in a direction under subsection 35(3) of the Trans-Tasman Mutual Recognition Act. This item replaces the references to the specified parts of the AAT Act with references to the broadly equivalent parts of the ART Bill. This is intended to retain the effect of subsection 35(5), so that members of the New Zealand Tribunal who constitute the Tribunal for the purposes of a proceeding (pursuant to a direction under subsection 35(3)) will have the same status and powers as members of the Tribunal.
PART 2 - BULK AMENDMENTS
Items 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35 and 36: Various provisions to Commonwealth Acts requiring consultation with States and Territories
Bulk terminology changes
867. These items include tables which make bulk amendments to the following Commonwealth Acts:
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- Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994
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- Agricultural and Veterinary Chemicals Act 1994
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- Agricultural and Veterinary Chemicals (Administration) Act 1992
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- Agricultural and Veterinary Chemicals Code Act 1994
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- Australian Education Act 2013
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- Fair Work Act 2009
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- Gene Technology Act 2000
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- Greenhouse and Energy Minimum Standards Act 2012
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- Mutual Recognition Act 1992
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- National Vocational Education and Training Regulator Act 2011
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- Personal Properties Securities Act 2009
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- Research Involving Human Embryos Act 2002
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- Trans-Tasman Mutual Recognition Act 1997
868. These items amend terminology. See explanation of general terminology changes above.