Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Administrative Review Tribunal (Miscellaneous Measures) Bill 2024
26. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
27. The Administrative Review Tribunal (Miscellaneous Measures) Bill 2024 (the Bill) forms part of a package of legislation that abolishes the Administrative Appeals Tribunal (AAT) and establishes the Administrative Review Tribunal (the Tribunal), a new federal administrative review body that is user-focused, efficient, accessible, independent and fair.
28. The Administrative Review Tribunal Act 2024 (ART Act) establishes the Tribunal and sets out its operating framework. The Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Consequential Act 1) repeals the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), makes consequential amendments to 138 Commonwealth Acts and facilitates the smooth transition from the AAT to the Tribunal. The Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Act 2024 (Consequential Act 2) makes consequential amendments to 110 Commonwealth Acts that interact with the AAT Act, including Acts that have required consultation with States and Territories under cooperative schemes or intergovernmental agreements.
29. The Bill would make further amendments to 52 Commonwealth Acts (including the ART Act), to update references to the AAT in legislation that has passed or been introduced to Parliament since the introduction of the ART Act and to make technical amendments to support the efficient conduct of Tribunal review and ensure the legislation operates as intended.
Amendments to the ART Act
30. The Bill would amend the ART Act to improve the operation of provisions and the experience of applicants. Amendments include:
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- excluding the period between 24 December and 14 January from the calculation of the 28-day period from which a party can appeal a decision of the Tribunal to the Federal Court of Australia
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- amending authorisations so that persons exercising powers and functions in the Tribunal's Intelligence and Security jurisdictional area are of an appropriate level of seniority and experience
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- ensuring that the Attorney-General can delegate the power to authorise the payment of costs or grant legal or financial assistance to officers in the department, and
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- clarifying that where an applicant is no longer able to continue with an application for review of a decision for reasons such as death, bankruptcy or liquidation, another person may only apply to continue the proceeding if they would have been able to apply for review of the substantive decision.
Amendments to other Acts
31. The Bill contains amendments across several portfolios that support the central policy objective of creating a harmonised system of administrative review at the federal level. This includes amendments that:
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- update terminology and update cross-references,
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- remove modifications to the ART Act timeframes to apply for review of deemed decisions, so that the standard timeframe to make an application applies (no less than 28 days, commencing the day after a decision is deemed to have been made),
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- ensure that, when a proceeding is before the guidance and appeals panel, an original decision-maker may only vary or substitute the decision under review in accordance with section 31 of the ART Act, and
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- ensure provisions that refer to actions that can be taken, consequences that flow, or decisions that take effect once a Tribunal review is completed properly reflect the new guidance and appeals panel process in the ART Act.
32. The Bill also makes amendments across several portfolios to ensure that the legislation operates as intended, including:
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- providing immunities for nominated Tribunal members exercising certain functions under the Crimes Act 1914 in a personal capacity, consistent with immunities for other similar functions,
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- removing time limits for seeking internal and Tribunal review for Aboriginal Study Grants Scheme and Assistance for Isolated Children decisions (to align these timeframes with other social security decisions and avoid disadvantage to these applicants), and
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- clarifying the requirements for applications for review of reviewable migration and reviewable protection decisions under the Migration Act 1958, putting beyond doubt the requirements for a properly made application and the consequences of an application being improperly made.
Human rights implications
33. The Bill engages the following human rights:
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- the right to an effective remedy and the right to a fair hearing in Articles 2(3) and 14 of the International Covenant on Civil and Political Rights (ICCPR).
Right to an effective remedy and the right to a fair hearing in Articles 2(3) and 14 of the ICCPR
34. Article 2(3) of the ICCPR provides that States shall undertake to ensure the right to an effective remedy for any violation of rights or freedoms recognised by ICCPR. It includes the right to have a remedy determined by competent judicial, administrative or legislative authorities. This right also encompasses the duty to ensure competent authorities enforce any such remedies when granted.
35. The Bill as a whole promotes the right to an effective remedy by supporting the operation of an administrative review tribunal that is user-focused, efficient, accessible, independent and fair.
36. Article 14(1) of the ICCPR protects the right that all persons are equal before courts and tribunals. It further provides that every person, in the determination of rights and obligations in a 'suit of law' is entitled to a 'fair and public hearing by a competent, independent and impartial tribunal established by law'. Article 14(1) also recognises that 'the press and public may be excluded from all or part of a trial for reasons of morals, public order (order public) or national security in a democratic society, or when the interest of the private lives of the parties so requires...'.
37. The extent to which Article 14(1) applies to administrative review proceedings (whether such proceedings constitute a 'suit at law') is not fully settled.
38. The Bill contains amendments that support the ability of affected persons to have access to the administrative review framework established under the ART Act.
39. This Bill amends section 174 of the ART Act to provide that the timeframe to apply for an appeal to the Federal Court of Australia does not include the period between 24 December in one year and 14 January in the next year. This advances access to justice by supporting equal access to legal representation without limiting choice of legal services due to firm shutdown or other availability issues over the holiday period.
40. The Bill also contains amendments that standardise timeframes to apply for review in the Tribunal of a deemed decision across Commonwealth legislation. More consistent and standardised timeframes promote clarity, consistency and accessibility of review by simplifying application processes and promoting efficiency within the Tribunal. The standardised timeframes do not impact particular bespoke arrangements where a different timeframe is appropriate. The amendments do not reduce existing timeframes to apply for review and, in some cases, increase them by one day.
41. The Bill contains amendments to the Migration Act to clarify that failure to properly make an application to the Tribunal for review of a decision under Part 5 of that Act (including failure to pay the prescribed fee) results in the Tribunal having no jurisdiction in relation to the application. This amendment is a technical correction that clarifies the existing arrangements and ensures the workability of Tribunal review for migration and protection visa matters. Existing sections 347, 347A and 348 of the Migration Act provide the requirements for an application to the Tribunal to be 'properly made'. That is, that the application is accompanied by any prescribed fee, prescribed information and prescribed documents. The Tribunal does not have jurisdiction to review an application that is not properly made. The amendments clarify these requirements and the consequences of not meeting them.
42. The amendments may engage the right to an effective remedy and right to a fair hearing (to the extent it applies in Tribunal matters) by defining the requirements to make a valid application to the Tribunal. The amendments are reasonable, in that they prescribe the minimum requirements for an application to be considered and progressed by the Tribunal. They are proportionate, because there is a high volume of applications for review of reviewable migration and protection matters and it is necessary to have certainty as to when a valid application has been made, as this triggers the entitlement to a bridging visa. They are necessary to maintain the integrity of the immigration framework and ensure the efficiency and effectiveness of Tribunal review. In addition, they promote clarity and certainty for applicants.
43. This Bill makes amendments to account for legislation that has passed or been introduced to Parliament since the primary ART legislative package was introduced.
44. It also makes consequential and contingent amendments to the ART Act that reflect amendments to the AAT Act in legislation that was introduced or passed the parliament since the ART legislative package was introduced.
45. These amendments promote the right to an effective remedy and right to a fair hearing (to the extent it applies in Tribunal matters) by ensuring continuity of review rights for decisions made under this legislation.
Conclusion
46. The Bill is compatible with human rights because it promotes the protection of human rights and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.