House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)

SCHEDULE 2 - CONSEQUENTIAL AMENDMENTS

OUTLINE

66. This Schedule contains consequential amendments to the following Acts:

Part 1 - Attorney General

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Bankruptcy Act 1966

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Crimes Act 1914

•

Freedom of Information Act 1982

Part 2 - Treasury

•

Australian Charities and Not for profits Commission Act 2012

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Banking Act 1959

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Corporations Act 2001

•

Financial Accountability Regime Act 2023

•

Financial Institutions Supervisory Levies Collection Act 1998

•

Financial Sector (Collection of Data) Act 2001

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Financial Services Compensation Scheme of Last Resort Levy (Collection) Act 2023

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Insurance Acquisitions and Takeovers Act 1991

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Insurance Act 1973

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Life Insurance Act 1995

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Payment Times Reporting Act 2020

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Petroleum Excise (Prices) Act 1987

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Private Health Insurance (Prudential Supervision) Act 2015

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Retirement Savings Accounts Act 1997

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Small Superannuation Accounts Act 1995

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Superannuation Industry (Supervision) Act 1993

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Superannuation (Self Managed Superannuation Funds) Taxation Act 1987

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Tax Agent Services Act 2009

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Taxation Administration Act 1953

Part 3 - Finance

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Digital ID Act 2024

Part 4 - Defence

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Defence Act 1903

Part 5 - Health and Aged Care

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Aged Care Act 1997

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Aged Care (Transitional Provisions) Act 1997

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Health Insurance Act 1973

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Public Health (Tobacco and Other Products) Act 2023

Part 6 - Education

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A New Tax System (Family Assistance) (Administration) Act 1999

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Higher Education Funding Act 1988

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Higher Education Support Act 2003

Part 7 - Veterans' Affairs

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Military Rehabilitation and Compensation Act 2004

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Safety, Rehabilitation and Compensation (Defence-Related Claims) Act 1988

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Veterans' Entitlements Act 1986

Part 8 - Climate Change, Energy, the Environment and Water

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Great Barrier Reef Marine Park Act 1975

Part 9 - Industry, Science and Resources

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Industry Research and Development Act 1986

Part 10 - Employment and Workplace Relations

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Australian Apprenticeship Support Loans Act 2014

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Fair Entitlements Guarantee Act 2012

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Higher Education Support Act 2003

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Safety, Rehabilitation and Compensation Act 1988

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Seafarers Rehabilitation and Compensation Act 1992

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VET Student Loans Act 2016

Part 11 - Social Services

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Student Assistance Act 1973

Part 12 - Home Affairs

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Migration Act 1958

Part 13 - Agriculture, Fisheries and Forestry

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Primary Industries Levies and Charges Collection Act 2024

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Primary Industries Levies and Charges Disbursement Act 2024

Part 14 - Infrastructure, Transport, Regional Development, Communications and the Arts

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New Vehicle Standards Efficiency Act 2024

General terminology changes

67. 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 relation to the new Tribunal.

Other amendments

68. In addition to reference changes, items in this schedule make amendments to legislation to assist the effective operation of the Tribunal, harmonise and simplify legislative provisions and make technical corrections. This includes amendments that:

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prevent decision-makers from altering decisions that are before the guidance and appeals panel, unless the processes set out in section 31 of the ART Act are followed,

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repeal specific provisions relating to the timeframes to apply for review of deemed decisions, ensuring that the standard ART Act provisions apply,

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ensure provisions setting out when decisions become final or action can be taken in relation to a decision account for appeals or potential appeals to the guidance and appeals panel,

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provide immunities to Tribunal members exercising functions in relation to post-entry warrants and delayed notification search warrants, consistent with other similar functions under the Crimes Act,

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ensure ART Act provisions referring to the "decision-maker" operate as intended in reviews of FOI decisions,

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clarify the ability of the President to grant an extension of time to apply for referral of a Tribunal decision to the guidance and appeals panel after the period for making an application has expired, in relation to reviews of decisions in the Treasury portfolio,

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remove time limits for applying for internal review or Tribunal review of ABSTUDY or AIC debt decisions,

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displace sections 267 and 268 of the ART Act in relation to decisions under the Migration Act that have more specific notice requirements, so as not to cause uncertainty and confusion,

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clarify 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.

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require the Minister to participate in guidance and appeals panel reviews of reviewable migration and protection decisions, and

•

make minor technical corrections and clarifications, including to ensure references to provisions in the ART Act are correct.

Ability to change a decision once a matter is referred to the guidance and appeal panel

69. A number of items in this Schedule make amendments to harmonise the application of section 31 of the ART Act where a decision has been referred to the guidance and appeals panel. Some legislation disapplies or applies contrary to the operation of section 31 of the ART Act, thereby allowing for a decision to be altered by the decision maker while the decision is before the Tribunal. The amendments provide that where a decision is before the guidance and appeals panel, section 31 of the ART Act applies to the decision. This means that the decision cannot be altered, otherwise than by the Tribunal, unless the parties to the proceeding for review and the Tribunal consent to the alteration or it is remitted to the decision-maker under section 85 of the ART Act.

70. A decision is considered to be 'before the guidance and appeals panel' if it has been referred by the President of the Tribunal under section 122 or 128 of the ART Act. Referral under section 122 is an own-motion referral, made because the President is satisfied that an application to the Tribunal for review of a decision raises an issue of significance to administrative decision-making and it is appropriate in the interests of justice for the guidance and appeals panel to consider the matter. A referral under section 128 in response to an application by a party to a Tribunal decision, and made if the President is satisfied that the Tribunal decision raises an issue of significant to administrative decision-making or may contain an error of fact or law materially affecting the Tribunal decision.

71. These amendments ensure the Tribunal has visibility of how matters raising issues of significance to administrative decision-making, or containing a potential error by the Tribunal, are resolved.

Consistency of timeframes to apply for review of a deemed decision

72. This Schedule contains amendments to remove provisions that stipulate a timeframe to apply for ART review of a deemed decision. This means the timeframes contained in the ART Act and related rules will apply. Specifically, subsection 18(1) of the ART Act provides that the rules are to stipulate a timeframe for applications for review. Subsection 18(3) outlines that the rules must not prescribe a period ending before the day that is 28 days after the day a decision is made.

73. Removal of provisions that provide a timeframe to apply for review of a deemed decision will ensure there are consistent arrangements in relation to the calculation of timeframes to apply for review of deemed decisions. This will provide consistency for users and reduce administrative burden for the Tribunal. These amendments do not substantively change the timeframes for applying for review of the relevant decisions. This is because all of the existing provisions specify that the timeframe to apply for review ends either 28 days from, or 28 days after, the decision is deemed to be made.

AMENDMENTS

Part 1 - Attorney-General

Bankruptcy Act 1966

Item 1: Subsection 5(1)

Inserting definition

74. This item inserts a definition of guidance and appeals panel, which has the same meaning as in the ART Act.

Items 2 and 3: Paragraph 149N(2)(b) and after subsection 149N(2)

Clarifying when the decision of the Tribunal is finalised

75. These items amend subsection 149N(2) of the Bankruptcy Act 1966 to ensure the provision properly reflects the guidance and appeals panel process in the ART Act.

76. Subsection 149N(2) currently provides that the cancellation of an objection to a discharge from bankruptcy does not take effect until the end of the period within which an application may be made to the Tribunal for review of the decision, or if such an application is made, the decision of the Tribunal. The effect of a decision of cancellation under section 149N is that a bankrupt is taken to be discharged under section 149A(3) of the Bankruptcy Act 1966.

77. Part 5 of the ART Act allows a party to apply to the President to refer a decision of the Tribunal to the guidance and appeals panel on the basis that it may contain a material error of fact or law or that it raises an issue of significance to administrative decision-making. If this occurs, a decision of the Tribunal in relation to a cancellation may be altered by a later decision of the guidance and appeals panel. Under the current drafting of subsection 149N(2), the cancellation would take effect at the point of the Tribunal's original decision and may later be reversed through the guidance and appeals panel process, potentially resulting in the person being discharged from their bankruptcy only to be 're-bankrupted' as a result of the guidance and appeals panel decision.

78. These items amend paragraph 149N(2)(b) to provide that the cancellation takes effect when the decision of the Tribunal becomes final rather than when the decision is given.

79. They also insert new subsection 149N(2A), which provides that a decision of the Tribunal becomes final:

•

if no application to refer the decision to the guidance and appeals panel is made within the time period, at the end of that time period, or

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if such an application is made, at the time the application is refused or a decision of the Tribunal on the application is given.

80. New subsection 149N(2B) provides that the period for making the application to refer the decision of the Tribunal to the guidance and appeals panel includes any extension given under section 125 of the ART Act.

81. These amendments ensure that cancellation of an objection to a discharge from bankruptcy does not take effect until the end of the period where the decision may be altered through the guidance and appeals panel process.

Crimes Act 1914

Items 4 and 5: Subsection 3UJC(3) (note) and at the end of section 3UJC

Immunities for Tribunal members

82. These items repeal the note to subsection 3UJC(3) and insert new subsection 3UJC(4) to provide that nominated Tribunal members have the same protection and immunity as a Justice of the High Court in relation to issuing post-entry warrants under the Crimes Act.

83. The note to subsection 3UJC(3), as amended by Consequential Act 2, contains a reference to section 293 of the ART Act, which provides immunities to members in the performance of their functions as a member of the Tribunal. Other similar provisions of the Crimes Act contain a standalone immunity, providing nominated Tribunal members with the same protection and immunity as a Justice of the High Court in relation to exercising the function. These provisions are necessary because Tribunal members issuing warrants do so in their personal capacity and not as part of their functions under the ART Act.

84. Item 5 inserts new subsection 3UJC(4) which provides that nominated Tribunal members issuing post-entry warrants have the same protection and immunity as a Justice of the High Court in relation to issuing such warrants. The amendment reflects the policy intent to ensure that nominated Tribunal members enjoy appropriate and consistent immunity and protection for exercising functions under the Crimes Act.

Items 6 and 7: Subsection 3ZZAD(3) (note) and at the end of section 3ZZAD

Immunities for Tribunal members

85. These items repeal the note to subsection 3ZZAD(3) and insert new subsection 3ZZAD(4) to provide that nominated Tribunal members have the same protection and immunity as a Justice of the High Court in relation to issuing delayed notification search warrants pursuant to the Crimes Act.

86. The note to subsection 3ZZAD(3), as amended by Consequential Act 2, contains a reference to section 293 of the ART Act, which provides immunities to members in the performance of their functions as a member of the Tribunal. Other similar provisions of the Crimes Act contain a standalone immunity, providing nominated Tribunal members with the same protection and immunity as a Justice of the High Court in relation to exercising the function. These provisions are necessary because Tribunal members issuing warrants do so in their personal capacity and not as part of their functions under the ART Act.

87. Item 7 inserts new subsection 3ZZAD(4) which provides that nominated Tribunal members issuing delayed search notification warrants have the same protection and immunity as a Justice of the High Court in relation to issuing such warrants. The amendment reflects the policy intent to ensure that nominated Tribunal members enjoy appropriate and consistent immunity and protection for exercising functions under the Crimes Act.

Freedom of Information Act 1982

Items 8 and 9: After paragraph 61A(1)(b) and paragraph 61A(1)(c)

Modifying references to decision-makers

88. These items amend subsection 61A(1) of the Freedom of Information Act 1982 by repealing paragraph 61A(1)(c) and inserting additional modifications to provisions of the ART Act.

89. Existing subsection 61A(1), as amended by Consequential Act 1, modifies how specified provisions of the ART Act apply in reviews of decisions made under the Freedom of Information Act 1982. The modifications ensure that references to the decision-maker in relevant provisions of the ART Act are taken to mean the agency or Minister who made the Information Commissioner reviewable decision, to ensure the ART Act operates as intended in relation to these reviews.

90. These items insert additional provisions that modify references to the decision-maker to ensure all required references to the ART Act are covered. The listed provisions relate to the obligations on decision-makers to provide information relating to the decision under review to the Tribunal. Modifying these provisions will ensure the Tribunal receives the required information from the agency or Minister who made the relevant reviewable decision, rather than from the Information Commissioner who may not have access to relevant materials or information. These amendments are necessary to ensure the various provisions of the ART Act continue to appropriately apply in relation to reviews of decisions made under the Freedom of Information Act 1982, and that the Tribunal can access the information it requires to conduct reviews.

Items 10: Paragraph 61A(1)(h)

Correcting a typographical error

91. This item amends paragraph 61A(1)(h) of the Freedom of Information Act 1982 (inserted by Consequential Act 1) to correct a typographical error.

Part 2 - Treasury

Australian Charities and Not-for-profits Commission Act 2012

Item 11: Section 300-5

Inserting definition

92. This item inserts a definition of guidance and appeals panel, which has the same meaning as in the ART Act.

Item 12: Subsection 165-10(2)

Clarifying the ability of the ART President to allow a longer period to apply for guidance and appeals panel referral

93. This item amends subsection 165-10(2) of the Australian Charities and Not-for-profits Commission Act 2012 to clarify that the President of the Tribunal may allow a longer period for a party to make an application to refer a decision of the Tribunal to the guidance and appeals panel, as long as the request for more time is made before the period for making the application expires.

94. Section 125 of the ART Act provides that an application to refer a Tribunal decision to the guidance and appeals panel must be made within the period of 28 days after the Tribunal gives a statement of reasons for the decision to the parties, or such longer period as the President, in special circumstances, allows.

95. Existing subsection 165-10(2), as amended by Consequential Act 1, provides that the President of the Tribunal may only allow a longer period to make an application to refer a Tribunal decision to the guidance and appeals panel if the period for making the application in section 125 of the ART Act has not expired. As currently drafted, subsection 165-10(2) may be interpreted as requiring the President to consider and make a decision on the request within that period.

96. Item 12 amends subsection 165-10(2) to provide that the President of the Tribunal may only allow a longer period to make an application to refer a Tribunal decision to the guidance and appeals panel if the request for a longer period is made before the period for making the application has expired. This clarifies that the request for an extension of time must be made before the period for making the application expires (that is, within 28 days of the Tribunal giving its reasons for decision), but allows the President to agree to the request after the period has expired.

97. This item is needed to ensure the President has sufficient opportunity to consider and decide a request for more time if the request is made close to, or on, the final day of the application period.

Item 13: At the end of section 165-35

Clarifying the ability of the ART President to allow a longer period to apply for guidance and appeals panel referral

98. This item is consequential to the amendment to subsection 165-10(2) of the Australian Charities and Not-for-profits Commission Act 2012.

99. Under subsection 165-35(2), if no appeal is lodged against the Tribunal's decision within the period for lodging an appeal, and no application to refer a decision of the Tribunal to the guidance and appeals panel is made within the period for making the application, the decision becomes final at the end of the period.

100. This item inserts new subsection (3) in section 165-35 to clarify that for the purposes of determining when a decision becomes final, the period for making the application includes any extension allowed in accordance with subsection 165-10(2) and section 125 of the ART Act.

Banking Act 1959

Item 14: Subsection 51C(2)

Consistency of timeframes to apply for review of a deemed decision

101. This item repeals subsection 51C(2) of the Banking Act 1959 which provides the timeframe to apply for review of decisions taken to be made under subsection 51B(3) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Corporations Act 2001

Item 15: Section 9 (definition of decision )

Terminology changes

102. This item updates the definition of decision so that it refers to its meaning under the ART Act rather than its meaning under the AAT Act. See explanation of general terminology changes above.

Item 16: Subsection 1297(1)

Operation or implementation of a decision after a person has applied for referral of a Tribunal decision to the guidance and appeals panel

103. This item amends subsection 1297(1) of the Corporations Act 2001 to insert a reference to section 127 of the ART Act (in addition to sections 32 and 178), to clarify the ability of the Tribunal to stay the operation or implementation of a decision following an application to refer a decision to the guidance and appeals panel. Subsection 1297(1) provides for when a decision of the Companies Auditors Disciplinary Board to cancel or suspend the registration of a person as an auditor comes into effect.

104. Consequential Act 1 maintained the effect of the existing law by providing that subsection 1297(1) is subject to sections 32 and 178 of the ART Act. Sections 32 and 178 of the ART Act provide that the making of an application to the Tribunal for review of a decision, or an appeal to the Federal Court from a decision of the Tribunal, does not affect the operation or implementation of the decision unless the Tribunal or court orders otherwise. Section 127 of the ART Act maintains this arrangement when an application is made to the guidance and appeals panel.

105. This item inserts reference to section 127 of the ART Act to clarify that the making of an application to refer a decision of the Tribunal to the guidance and appeals panel also does not affect the operation of the decision, unless the Tribunal orders otherwise.

106. This is a technical amendment intended to clarify that the coming into effect of these decisions is subject to the ability of the Tribunal to stay the operation or implementation of a decision of the Board following an application to refer a decision to the guidance and appeals panel.

Item 17: Subsection 1299K(1)

Updating legislative references

107. This item amends subsection 1299K(1) of the Corporations Act 2001 to insert a reference to section 127 of the ART Act (in addition to sections 32 and 178), to clarify the ability of the Tribunal to stay the operation or implementation of a decision following an application to refer a decision to the guidance and appeals panel.

108. Subsection 1299K(1) provides for when a decision by ASIC to cancel or suspend the registration of a company's registration as an authorised audit company comes into effect.

109. Consequential Act 1 maintained the effect of the existing law by providing that subsection 1299K(1) is subject to sections 32 and 178 of the ART Act. Sections 32 and 178 of the ART Act provide that the making of an application to the Tribunal for review of a decision, or an appeal to the Federal Court from a decision of the Tribunal, does not affect the operation or implementation of the decision unless the Tribunal or court orders otherwise. Section 127 of the ART Act maintains this arrangement when an application is made to the guidance and appeals panel.

110. This item inserts reference to section 127 of the ART Act to clarify that the making of an application to refer a decision of the Tribunal to the guidance and appeals panel also does not affect the operation of the decision, unless the Tribunal orders otherwise.

111. This is a technical amendment intended to clarify that the coming into effect of these decisions is subject to the ability of the Tribunal to stay the operation or implementation of a decision of ASIC following an application to refer a decision to the guidance and appeals panel.

Financial Accountability Regime Act 2023

Item 18: Subsection 94(3) (note)

Updating legislative references

112. This item updates the note to subsection 94(3), replacing the legislative reference to section 27A of the AAT Act with a reference to the equivalent provision in the ART Act, section 266. Consistent with section 27A of the AAT Act, section 266 of the ART Act requires a decision-maker to notify persons who are affected by the decision that a decision has been made, and their right to have the decision reviewed. This amendment is technical in nature and ensures the note remains accurate.

Items 19 and 20: Section 95 (heading) and subsection 95(1)

Terminology changes

113. These items amend terminology. See explanation of general terminology changes above.

Item 21: Subsection 95(3)

Updating legislative references

114. This item updates a reference to section 27(1) of the AAT Act to instead refer to the equivalent provision of the ART Act, section 17.

115. Consistent with section 27(1) of the AAT Act, under section 17 of the ART Act, any person whose interests are affected by a decision has standing to apply to the Tribunal for review of that decision. Subsection 95(3) of the Financial Accountability Regime Act 2023 provides that, contrary to section 17 of the ART Act, an application to the Tribunal for review of a decision made by an internal decision reviewer may be made only by, or on behalf of, an affected person for the reviewable decision (as defined by section 91 of the Financial Accountability Regime Act 2023). This reflects the nature of reviewable decisions under the Financial Accountability Regime Act 2023, where it would be burdensome or impractical to provide any person whose interests are affected by a decision with a right to apply for review of the decision.

116. This amendment is technical in nature, and ensures subsection 95(3) of the Financial Accountability Regime Act 2023 continues to operate in substantively the same way in relation to the Tribunal.

Financial Institutions Supervisory Levies Collection Act 1998

Item 22: Subsection 27(7)

Consistency of timeframes to apply for review of a deemed decision

117. This item repeals subsection 27(7) of the Financial Institutions Supervisory Levies Collection Act 1998 which provides the timeframe to apply for review of decisions taken to be made under subsection 27(4) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Financial Sector (Collection of Data) Act 2001

Item 23: Subsection 25D(2)

Consistency of timeframes to apply for review of a deemed decision

118. This item repeals subsection 25D(2) of the Financial Sector (Collection of Data) Act 2001 which provides the timeframe to apply for review of decisions taken to be made under subsection 25C(2). This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Financial Services Compensation Scheme of Last Resort Levy (Collection) Act 2023

Items 24 and 25: Section 25 (heading) and section 25

Terminology changes

119. These items amend terminology. See explanation of general terminology changes above.

Insurance Acquisitions and Takeovers Act 1991

Item 26: Subsection 67(2)

Consistency of timeframes to apply for review of a deemed decision

120. This item repeals subsection 67(2) of the Insurance Acquisitions and Takeovers Act 1991 which provides the timeframe to apply for review of decisions taken to be made under subsection 66(4) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Insurance Act 1973

Item 27: Subsection 63(8)

Consistency of timeframes to apply for review of a deemed decision

121. This item repeals subsection 63(8) of the Insurance Act 1973 which provides the timeframe to apply for review of decisions taken to be made under subsection 63(5) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Life Insurance Act 1995

Item 28: Subsection 236(9)

Consistency of timeframes to apply for review of a deemed decision

122. This item repeals subsection 236(9) of the Life Insurance Act 1995 which provides the timeframe to apply for review of decisions taken to be made under subsection 236(6) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Payment Times Reporting Act 2020

Items 29 and 30: Section 54AA (heading) and section 54AA

123. These items amend terminology. See explanation of general terminology changes above.

Petroleum Excise (Prices) Act 1987

Item 31: Subsections 12(7) and (8)

Consistency of timeframes to apply for review of a deemed decision

124. This item repeals subsections 12(7) and (8) of the Petroleum Excise (Prices) Act 1987 which provide the timeframe to apply for review of the decisions taken to be made under subsection 12(4) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Private Health Insurance (Prudential Supervision) Act 2015

Item 32: Subsection 168(8)

Consistency of timeframes to apply for review of a deemed decision

125. This item repeals subsection 168(8) of the Private Health Insurance (Prudential Supervision) Act 2015 which provides the timeframe to apply for review of the decisions taken to be made under subsection 168(5) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Retirement Savings Accounts Act 1997

Item 33: Subsection 189(8)

Consistency of timeframes to apply for review of a deemed decision

126. This item repeals subsection 189(8) of the Retirement Savings Accounts Act 1997 which provides the timeframe to apply for review of decisions taken to be made under subsection 189(5) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Small Superannuation Accounts Act 1995

Item 34: Subsection 84(1)

Consistency of timeframes to apply for review of a deemed decision

127. This item repeals subsection 84(1) of the Small Superannuation Accounts Act 1995 which provides the timeframe to apply for review of decisions taken to be made under subsection 82(5) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Item 35: Subsection 84(2) (heading)

Consistency of timeframes to apply for review of a deemed decision

128. This item repeals the heading before subsection 84(2) of the Small Superannuation Accounts Act 1995. This is consequential to the repeal of subsection 84(1) by the previous item.

Superannuation Industry (Supervision) Act 1993

Item 36: Subsection 344(9)

Consistency of timeframes to apply for review of a deemed decision

129. This item repeals subsection 344(9) of the Superannuation Industry (Supervision) Act 1993 which provides the timeframe to apply for review of decisions taken to be made under subsection 344(5) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Superannuation (Self Managed Superannuation Funds) Taxation Act 1987

Item 37: Subsection 16(7)

Consistency of timeframes to apply for review of a deemed decision

130. This item repeals subsection 16(7) of the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 which provides the timeframe to apply for review of decisions taken to be made under subsection 16(4) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Tax Agent Services Act 2009

Item 38: Subsection 70-30(5) (definition of reviewable decision )

131. This item updates the definition of reviewable decision so that it refers to its meaning under the ART Act rather than its meaning under the AAT Act.

132. This amendment is technical in nature, and ensures subsection 70-30(5) of the Tax Agent Services Act 2009 continues to operate in substantively the same way in relation to the Tribunal.

Taxation Administration Act 1953

Item 39: Section 14ZQ

Inserting definition

133. This item inserts a definition of guidance and appeals panel, which has the same meaning as in the ART Act.

Item 40: Subsection 14ZZB(3)

Clarifying the ability of the ART President to allow a longer period to apply for guidance and appeals panel referral

134. This item amends subsection 14ZZB(3) of the Taxation Administration Act 1953 to clarify that the President of the Tribunal may allow a longer period for a party to make an application to refer a decision of the Tribunal to the guidance and appeals panel, as long as the request for more time is made before the period for making the application expires.

135. Section 125 of the ART Act provides that an application to refer a Tribunal decision to the guidance and appeals panel must be made within the period of 28 days after the Tribunal gives a statement of reasons for the decision to the parties, or such longer period as the President, in special circumstances, allows.

136. Existing subsection 14ZZB(3), as amended by Consequential Act 1, provides that the President of the Tribunal may only allow a longer period to make an application to refer a decision to the guidance and appeals panel if the period for making the application in section 125 of the ART Act has not expired. As currently drafted, subsection 14ZZB(3) may be interpreted as requiring the President to consider and make a decision on the request within that period.

137. Item 40 amends subsection 14ZZB(3) to provide that the President of the Tribunal may only allow a longer period to make an application to refer a Tribunal decision to the guidance and appeals panel if the request for a longer period is made before the period for making the application has expired. This clarifies that the request for an extension of time must be made before the period for making the application expires (that is, within 28 days of the Tribunal giving its reasons for decision), but allows the President to agree to the request after the period has expired.

138. This item is needed to ensure the President has a sufficient opportunity to consider and decide a request for more time if the request is made close to, or on, the final day of the application period.

Item 41: After subsection 14ZZB(7)

Operation or implementation of a decision after a person has applied for referral of a Tribunal decision to the guidance and appeals panel

139. This item inserts subsection 14ZZB(7A) to clarify the ability of the Tribunal under section 127 of the ART Act to stay the operation or implementation of a decision following an application to refer a decision to the guidance and appeals panel.

140. For general taxation matters, the standard provisions relating to the Tribunal's ability to make orders staying or otherwise affecting the operation or implementation of the original decision are disapplied to limit risks to tax revenue and the proper administration of the tax system (see subsections 14ZZB(5) and (7) of the Taxation Administration Act 1953). For small business taxation assessment decisions, the Tribunal's ability to make such orders under section 32 of the ART Act is made available (see subsection 14ZZB(6)).

141. This item inserts new subsection 14ZZB(7A) to ensure that that the same arrangements apply if a person has applied for referral of a Tribunal decision to the guidance and appeals panel. That is, the operation of the original tax decision cannot be stayed while the application is under review, except in relation to small business taxation assessments.

Item 42: At the end of section 14ZZL

Clarifying the ability of the ART President to allow a longer period to apply for guidance and appeals panel referral

142. This item is consequential to the amendment to subsection 14ZZB(3) of the Taxation Administration Act 1953.

143. Under subsection 14ZZL(2), if no appeal is lodged against the Tribunal's decision within the period for lodging an appeal, and no application to refer a decision of the Tribunal to the guidance and appeals panel is made within the period for making the application, the decision becomes final at the end of the period.

144. This item inserts new subsection (3) in section 14ZZL to clarify that for the purposes of determining when a decision becomes final, the period for making the application includes any extension allowed in accordance with subsection 14ZZB(3) and section 125 of the ART Act.

Part 3 - Finance

Digital ID Act 2024

Items 43 and 44: Section 140 (heading) and subsection 140(1)

Terminology changes

145. These items amend terminology. See explanation of general terminology changes above.

Item 45: Subsection 140(3)

Updating legislative references

146. This item updates a legislative reference to section 27(1) of the AAT Act to instead refer to the equivalent provision of the ART Act, section 17.

147. Consistent with section 27(1) of the AAT Act, under section 17 of the ART Act, any person whose interests are affected by a decision has standing to apply to the Tribunal for review of that decision. Subsection 140(3) of the Digital ID Act 2024 provides that, contrary to section 17 of the ART Act, an application to the Tribunal for review of a decision may be made only by, or on behalf of, an affected entity for the reviewable decision (as defined by section 137 of the Digital ID Act 2024). This reflects the nature of reviewable decisions under the Digital ID Act 2024 and limits who may apply for review to the Tribunal to entities directly affected by a reviewable decision, such as an entity on whom conditions are imposed by the Digital ID Regulator.

148. This amendment is technical in nature, and ensures subsection 140(3) of the Digital ID Act 2024 continues to operate in substantively the same way in relation to the Tribunal.

Part 4 - Defence

Defence Act 1903

Items 46 and 47: Section 115L (heading) and section 115L

Terminology changes

149. These items amend terminology. See explanation of general terminology changes above.

Part 5 - Health and Aged Care

Aged Care Act 1997

Items 48 and 49: After subsection 85-4(3) and subsection 85-4(4)

Ability to change a decision once a matter is referred to the guidance and appeal panel

150. These items amend section 85-4 of the Aged Care Act 1997 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Item 50: Clause 1 of Schedule 1

Inserting definitions

151. This item inserts definitions for guidance and appeals panel, and guidance and appeals panel application which have the same meaning as in the ART Act.

Aged Care (Transitional Provisions) Act 1997

Items 51 and 52: After subsection 85-4(3) and subsection 85-4(4)

Ability to change a decision once a matter is referred to the guidance and appeal panel

152. These items amend section 85-4 of the Aged Care (Transitional Provisions) Act 1997 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Item 53: Clause 1 of Schedule 1

Inserting definitions

153. This item inserts definitions for guidance and appeals panel, and guidance and appeals panel application which have the same meaning as in the ART Act.

Health Insurance Act 1973

Item 54: Subsection 3(1)

Inserting definitions

154. This item inserts definitions for guidance and appeals panel, and guidance and appeals panel application which have the same meaning as in the ART Act.

Items 55, 56 and 57: Subsection 124ZL(4), section 124ZN and at the end of section 124ZN

Ability to change a decision once a matter is referred to the guidance and appeal panel

155. These items amend sections 124ZL and 124ZN of the Health Insurance Act 1973 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Public Health (Tobacco and Other Products) Act 2023

Item 58: Section 8

Inserting definitions

156. This item inserts definitions of guidance and appeals panel and guidance and appeals panel application, which have the same meaning as in the ART Act.

Items 59, 60, 61 and 62: Subsection 142(10) (heading), subsection 142(10), subsection 147(4) (heading) and subsection 147(4)

Terminology changes

157. These items amend terminology. See explanation of general terminology changes above.

Item 63: Paragraphs 147(5)(a) and (b)

Conditions for publication of non-compliance information

158. This item amends subsection 147(5) of the Public Health (Tobacco and Other Products) Act 2023 to clarify when non-compliance information may be published in the circumstance of a reporting entity having made an application to the Tribunal.

159. Subsection 147(4) of the Public Health (Tobacco and Other Products) Act 2023 provides that applications may be made to the Tribunal for review of a decision by the Minister to publish non-compliance information about an entity. Subsection 147(5) provides that, if a reporting entity makes such an application, the Minister can only publish the non-compliance information if the Tribunal affirms or varies the Minister's decision or if the entity withdraws their application.

160. These amendments additionally allow the Minister to publish the non-compliance information if the Tribunal dismisses the application. They also account for circumstances where the Minister's decision is referred to the guidance and appeals panel.

161. Section 123 of the ART Act provides that if the Tribunal makes a decision, a person who was at any point a party to the proceeding in the Tribunal in which the decision was made may make an application ('the referral application') to the President to refer the decision to the guidance and appeals panel. These amendments provide that, in these circumstances, the Minister may only publish the non-compliance information if:

•

the president refuses to refer the reporting entity's referral application to the guidance and appeals panel

•

the reporting entity makes and then subsequently withdraws their referral application

•

the reporting entity does not make a referral application within the required timeframe, including within the time of any extensions given under section 125 of the ART Act

•

a referral application cannot be made as the decision has already been referred by the President under section 122 of the ART Act

•

the Tribunal is constituted for the purposes of the guidance and appeals panel proceeding, but the referral application is subsequently withdrawn by the person or the guidance and appeals panel review is dismissed by the Tribunal, or

•

the Tribunal is constituted for the purposes of the guidance and appeals panel proceeding, and the effect of the guidance and appeals panel decision is to publish the non-compliance information.

162. These amendments ensure that section 147 of the Public Health (Tobacco and Other Products) Act 2023 accounts for all the ways in which a review in the Tribunal may conclude. This ensures that the Minister is not prevented from publishing the non-compliance information based on a technicality.

Item 64: At the end of section 147

Inserting definition

163. This item inserts a definition of referral application which, for the purposes of section 147 of the Public Health (Tobacco and Other Products) Act 2023, means an application made under section 123 of the Act.

Part 6 - Education

A New Tax System (Family Assistance) (Administration) Act 1999

Item 65: Section 138A

Repealing provisions

164. This item repeals section 138A of the A New Tax System (Family Assistance) (Administration) Act 1999. Section 138A was inserted by Consequential Act 1 to disapply the Tribunal's power to remit a decision to the decision-maker for reconsideration at any time during a proceeding for review (as allowed for in section 85 of the ART Act).

165. Decisions about child care providers are currently subject to only one level of review. The effect of this item is to enable the Tribunal to continue to remit child care provider decisions to the decision-maker for reconsideration.

166. This amendment is technical in nature, and ensures the A New Tax System (Family Assistance) (Administration) Act 1999 continues to operate in substantively the same way in relation to the Tribunal.

Higher Education Funding Act 1988

Item 66: Section 3

Inserting definition

167. This item inserts definitions of guidance and appeals panel and guidance and appeals panel application, which have the same meaning as in the ART Act.

Items 67 and 68: After subsection 106MA(1) and subsection 106MA(2)

Ability to change a decision once a matter is referred to the guidance and appeal panel

168. These items amend section 106MA of the Higher Education Funding Act 1988 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Higher Education Support Act 2003

Items 69 and 70: After subsection 209-5(2) and subsection 209-5(3)

Ability to change a decision once a matter is referred to the guidance and appeal panel

169. These items amend section 209-5 of the Higher Education Support Act 2003 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Item 71: Subclause 1(1) of Schedule 1

Inserting definitions

170. This item inserts definitions of guidance and appeals panel and guidance and appeals panel application, which have the same meaning as in the ART Act.

Part 7 - Veterans' Affairs

Military Rehabilitation and Compensation Act 2004

Item 72: Subsection 5(1)

Inserting definitions

171. This item inserts definitions of guidance and appeals panel and guidance and appeals panel application, which have the same meaning as in the ART Act.

Items 73, 74, 75 and 76: Subsection 348(1), after subsection 348(1), after subsection 350(1) and subsection 350(2)

Ability to change a decision once a matter is referred to the guidance and appeal panel

172. These items amend sections 348 and 350 of the Military Rehabilitation and Compensation Act 2004 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Item 77: At the end of section 357

Commonwealth taken to be a party for the purposes of taxing costs

173. This item inserts new subsection 357(8) of the Military Rehabilitation and Compensation Act 2004 to clarify that the Commonwealth is taken to be a party to the proceeding before the Tribunal for the purposes of section 115 of the ART Act. Section 115 of the ART Act provides that the Tribunal may tax the costs of parties (on application by either party) where the Tribunal orders a party to pay another party's costs. The Tribunal may only make orders about costs where other legislation (creating reviewable decisions) permits it.

174. Section 357 of the Military Rehabilitation and Compensation Act 2004 provides that, in certain circumstances, the Tribunal may order that the Commonwealth pay the costs incurred by a claimant in relation to a proceeding. This amendment enables the Commonwealth to be considered a party to the proceeding for the purposes of taxing costs under section 115 of the ART Act.

Safety, Rehabilitation and Compensation (Defence-Related Claims) Act 1988

Item 78: Subsection 60(1)

Inserting definitions

175. This item inserts definitions of guidance and appeals panel and guidance and appeal panel application, which have the same meaning as in the ART Act.

Items 79 and 80: At the end of section 62 and after subsection 64(1)

Ability to change a decision once a matter is referred to the guidance and appeal panel

176. These items amend sections 62 and 64 of the Safety, Rehabilitation and Compensation (Defence-Related Claims) Act 1988 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Veterans' Entitlements Act 1986

Item 81: Section 12

Inserting definitions

177. This item inserts definitions of guidance and appeals panel and guidance and appeal panel application, which have the same meaning as in the ART Act.

Items 82 and 83: Subsection 31(2) and after subsection 31(2)

Ability to change a decision once a matter is referred to the guidance and appeal panel

178. These items amend section 31 of the VE Act to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Item 84: At the end of section 106

Authorising contrary intention prescribed by a legislative instrument

179. This item inserts new subsection 106(3) of the VE Act which provides that legislative instruments made under subsection 106(1) can contain provisions that are contrary to the operation of section 18 of the ART Act (timeframe for applying to the Tribunal for review of a decision).

180. Section 5 of the ART Act provides that other Acts and instruments may modify or disapply provisions contained in the ART Act if they contain a contrary intention. A legislative instrument can only disapply or modify the application of a provision of the ART Act if the Act under which the instrument is made authorises it to do so.

181. The Veterans' Entitlements (Special Assistance - Motorcycle Purchase) Regulations 2001 modify the ART Act by providing parties with 3 months to make an application to the Tribunal. The effect of inserting new subsection 106(3) is to enable these, and other legislative instruments made under subsection 106(1), to contain provisions that apply contrary to the operation of section 18 of the ART Act (where needed to respond to the unique features of a particular caseload).

182. This amendment is technical in nature, and ensures section 106 of the VE Act continues to operate in substantively the same way in relation to the Tribunal.

Item 85: Subsection 177(1)

Updating legislative references

183. This item amends subsection 177(1) of the VE Act to replace an incorrect legislative reference to section 107 of the ART Act (inserted by Consequential Act 1), and substitute it with the correct reference, section 108 of the ART Act.

184. Section 177 of the VE Act modifies the usual date of effect for certain determinations made by the Tribunal when reviewing decisions about pensions and seniors' health cards. The approach aligns with the backdating provisions applicable to an original decision under the VE Act for maximum benefit, and prevents the Tribunal from setting a date of effect that a decision-maker could not. Under the existing law, it operates in addition to provisions of section 43 of the AAT Act.

185. The amendment provides that subsection 177(1) of the VE Act, as amended, clarifies that the dates of effect set out in section 177 apply in addition to, rather than contrary to, section 108 of the ART Act.

186. Section 108 of the ART Act is equivalent to section 43(6) of the AAT Act. This amendment is technical in nature, and ensures section 177 of the VE Act continues to operate in substantively the same way in relation to the Tribunal.

Part 8 - Climate Change, Energy, the Environment and Water

Great Barrier Reef Marine Park Act 1975

Item 86: Subsection 39M(2)

Consistency of timeframes to apply for review of a deemed decision

187. This item repeals subsection 39M(2) of the Great Barrier Reef Marine Park Act 1975 which provides the timeframe to apply for review of decisions taken to be made under subsection 39L(4) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Part 9 - Industry, Science and Resources

Industry Research and Development Act 1986

Item 87: Subsection 30E(3)

Consistency of timeframes to apply for review of a deemed decision

188. This item repeals subsection 30E(3) of the Industry Research and Development Act 1986 which provides the timeframe to apply for review of decisions taken to be made under subsection 30D(3) of that Act. This means the standard timeframe to apply for review under the ART Act and related rules will apply. See explanation of amendments to harmonise the timeframes to apply for review of deemed decisions above.

Part 10 - Employment and Workplace Relations

Australian Apprenticeship Support Loans Act 2014

Item 88: Section 5

Inserting definitions

189. This item inserts definitions of guidance and appeals panel and guidance and appeal panel application, which have the same meaning as in the ART Act.

Items 89 and 90: After subsection 81(2) and subsection 81(3)

Ability to change a decision once a matter is referred to the guidance and appeal panel

190. These items amend section 81 of the Australian Apprenticeship Support Loans Act 2014 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Fair Entitlements Guarantee Act 2012

Item 91: Section 5

Inserting definitions

191. This item inserts definitions of guidance and appeals panel and guidance and appeal panel application, which have the same meaning as in the ART Act.

Items 92 and 93: After subsection 37(2) and subsection 37(4)

Ability to change a decision once a matter is referred to the guidance and appeal panel

192. These items amend section 40 of the Fair Entitlements Guarantee Act 2012 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Higher Education Support Act 2003

Items 94 and 95: After subclause 95(2) of Schedule 1A and subclause 95(3) of Schedule 1A

Ability to change a decision once a matter is referred to the guidance and appeal panel

193. These items amend clause 95 of the Higher Education Support Act 2003 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Item 96: Subclause 1(1) of Schedule 1

Inserting definitions

194. This item inserts definitions of guidance and appeals panel and guidance and appeal panel application, which have the same meaning as in the ART Act.

Safety, Rehabilitation and Compensation Act 1988

Item 97: Subsection 60(1)

Inserting definitions

195. This item inserts definitions of guidance and appeals panel and guidance and appeal panel application, which have the same meaning as in the ART Act.

Items 98 and 99: At the end of section 62 and after subsection 64(1)

Ability to change a decision once a matter is referred to the guidance and appeal panel

196. These items amend sections 62 and 64 of the Safety, Rehabilitation and Compensation Act 1988 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Seafarers Rehabilitation and Compensation Act 1992

Item 100: Subsection 76(1)

Inserting definitions

197. This item inserts definitions of guidance and appeals panel and guidance and appeal panel application, which have the same meaning as in the ART Act.

Items 101 and 102: After subsection 78(6) and after subsection 88(1)

Ability to change a decision once a matter is referred to the guidance and appeal panel

198. These items amend sections 78 and 88 of the Seafarers Rehabilitation and Compensation Act 1992 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

VET Student Loans Act 2016

Item 103: Section 6

Inserting definitions

199. This item inserts definitions of guidance and appeals panel and guidance and appeal panel application, which have the same meaning as in the ART Act.

Items 104 and 105: After subsection 77(2) and subsection 77(3)

Ability to change a decision once a matter is referred to the guidance and appeal panel

200. These items amend section 77 of the VET Student Loans Act 2016 to provide that a decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Part 11 - Social Services

Student Assistance Act 1973

Items 106 and 107: Subsections 304(2) and 304(5)

Removing time limit to apply for review of an ABSTUDY or AIC debt decision

201. These items repeal subsection 304(2) and amend subsection (5) of the Student Assistance Act 1973 to provide that there is no time limit to seek internal review in relation to ABSTUDY or AIC debt decisions.

202. The Student Assistance Act 1973 provides for student start-up loans under the ABSTUDY Scheme and payments under the AIC Scheme, including the recovery of debts in relation to such payments. Subsection 304(1) currently allows a person affected by a debt decision to apply for internal review of that decision within three months after the decision was made.

203. These items will remove the three-month time limit to apply for internal review of a debt decision under the Student Assistance Act 1973. This will ensure applications to seek a review for a debt decision in relation to an ABSTUDY or AIC payment align with other social security payments, which do not impose a time limit for seeking internal review of a debt decision.

Items 108, 109 and 110: Subsection 308D(3), section 308H and at the end of section 308H

Ability to change a decision once a matter is referred to the guidance and appeal panel

204. These items amend subsection 308D and 308H of the Student Assistance Act 1973 to provide that if the President of the Tribunal refers the application to the guidance and appeals panel under section 122 of the ART Act, section 31 of the ART Act applies. This means the decision cannot be altered by the decision-maker except in accordance with section 31 of the ART Act once it is before the guidance and appeals panel. See explanation of amendments relating to the ability of a decision-maker to change a decision once it is referred to the guidance and appeals panel, above.

Item 111: Section 312 (heading)

Removing time limit to apply for review of an ABSTUDY or AIC debt decision

205. This item amends the heading of section 312 to provide there is no time limit for application for Tribunal review, consequential to the amendment in the following item.

Item 112: Subsections 312(1) and (2)

Removing time limit to apply for review of an ABSTUDY or AIC debt decision

206. This item amends subsections 312(1) and (2) of the Student Assistance Act 1973 to provide that there is no time limit to seek review in the Tribunal in relation to ABSTUDY and AIC debt decision.

207. The Student Assistance Act 1973 provides for student start-up loans under the ABSTUDY Scheme and payments under the AIC Scheme, including the recovery of debts in relation to such payments. Section 311 allows a person to apply to the Tribunal for review of a decision that has been internally reviewed. Section 312 currently provides an application for review in the Tribunal must be made within three months after the debt decision was internally reviewed.

208. This item will disapply section 18 of the ART Act (which deals with when applications for review may be made) and remove the three-month time limit to apply for review in the Tribunal of a debt decision under the Student Assistance Act 1973. The effect of these amendments will be to ensure applications to seek a review for a debt decision in relation to an ABSTUDY or AIC payment align with other social security payments, which do not impose a time limit for seeking review of a debt decision.

Part 12 - Home Affairs

Migration Act 1958

Item 113: At the end of section 140GB

Notices of decision

209. This item inserts new subsection 140GB(4A) into the Migration Act, which relates to decisions made under section 140GB. Section 140GB of the Migration Act provides for when the Minister must approve an approved work sponsor's nomination of a visa applicant or a proposed occupation, program or activity. Subsection 140GB(3) enables the Migration Regulations to establish a process for the Minister to approve a person's nomination.

210. New subsection 140GB(4A) will provide that if the Migration Regulations provide for notification by the Minister of a decision whether or not to approve a person's nomination, sections 267 and 268 of the ART Act do not apply to the decision. This will ensure that there are not two different sets of requirements that apply simultaneously.

211. Section 267 of the ART Act requires that, in giving notice of a decision, the decision-maker must have regard to matters prescribed by the rules. Disapplying section 267 allows the Department of Home Affairs to develop notices that are appropriate and tailored to the approval of nominations under section 140GB of the Migration Act. This allows an appropriate degree of transparency, certainty and consistency in the administration of the complex visa framework. The intent is to ensure that the legislative arrangements in relation to rights of review of decisions operate fairly and efficiently.

212. Section 268 of the ART Act provides that a person affected by a reviewable decision may request reasons for that decision from the decision-maker. Section 268 is disapplied in relation to decisions under section 140GB of the Migration Act as regulation 2.74 of the Migration Regulations requires (among other things) the decision-maker to provide a statement of reasons for the refusal if the nomination is refused.

Item 114: After paragraph 336P(2)(i)

213. Clarifying availability of dismissal powers of the Tribunal for review of a reviewable migration or reviewable protection decision This item disapplies sections 97 and 98 of the ART Act in relation to a review of reviewable migration decisions and reviewable protection decisions under Part 5 of the Migration Act. Section 97 of the ART Act provides the Tribunal must dismiss an application if it is satisfied the decision is not a reviewable decision. Section 98 provides the Tribunal may dismiss an application if a fee payable in respect of the application is not paid by the time prescribed in the rules.

214. The intent of disapplying sections 97 and 98 of the ART Act is to clarify the framework for making applications to the Tribunal under Part 5 of the Migration Act. This amendment, together with the related amendments to sections 347 and 348 would put beyond doubt that the Tribunal does not have jurisdiction in relation to an application that is not properly made and must not review the application. The dismissal powers in sections 97 and 98 of the ART Act do not apply to these applications as applications that are not properly made, including in relation to whether a fee has been paid, are not able to be considered by the Tribunal and can therefore be dismissed.

215. New subsection 347(3) and paragraph 348(3)(c) enable the Migration Regulations to continue to prescribe fees for reviewable migration and protection decisions. The fee framework for reviewable migration and protection decisions is managed through the Migration Act and Migration Regulations with distinct settings that are distinguished from the intent of section 98 of the ART Act. This allows the administration of the complex visa framework with an appropriate degree of transparency, certainty and consistency.

Item 115: Subsections 347(2) and (3)

Clarifying requirements to apply to the Tribunal for review of a reviewable migration or reviewable protection decision

216. This item repeals and substitutes subsections 347(2) and (3) of the Migration Act to clarify the existing law. Section 347 deals with making an application to the Tribunal for review of a reviewable migration decision or a reviewable protection decision. These amendments clarify what constitutes a properly made application for reviewable migration and protection decisions. These amendments, along with amendments to section 348 below, are intended to more accurately reflect requirements for when fees are payable for reviewable migration decisions and reviewable protection decisions.

217. New subsection 347(2) provides that the application must include the prescribed information (if any) and be accompanied by the prescribed documents (if any). Paragraphs 347(2)(a) and (b) sets out the timeframes for providing these prescribed information and documents, being seven days for those in immigration detention, and 28 days otherwise.

218. New subsection 347(3) sets out the timeframes for when fees are payable (if any) for reviewable migration decisions and reviewable protection decisions. Paragraph 347(3)(a) provides that any prescribed fees must be paid for an application for review of a reviewable migration decision within the specified period in subsection 347(2) (see paragraph 9 above). Paragraph 347(3)(b) provides that any prescribed fees must be paid for an application for review of a reviewable protection decision within the prescribed period. 'Prescribed' in these amendments (and those below) refers to the fact that the specific requirements are contained in the Migration Regulations.

219. To be properly made, amongst other things, applications to the Tribunal for review of reviewable migration decisions are required to be accompanied by the prescribed fee (if any), which must be paid within the time period specified in subsection 347(2).

220. Applications to the Tribunal for review of reviewable protection decisions require the prescribed fee (if any) to be paid within the time period prescribed by the Migration Regulations, which may end after the decision has been reviewed by the Tribunal. Currently, the Migration Regulations prescribe that any fee for reviews of reviewable protection decisions only becomes payable seven days after notification from the Tribunal of its decision (see regulation 4.31B of the Migration Regulations).

221. These amendments clarify existing requirements, under the Migration Act and Regulations, for making an application to the Tribunal for review of certain migration decisions. The legislative note to subsection 347(3) provides that if these requirements are not met, in accordance with section 348 (as outlined below) the Tribunal must not review a decision.

222. The effect of these amendments is to ensure users are aware of and understand the requirements to properly make an application to the Tribunal for review of a decision under Part 5 of the Migration Act.

Items 116 and 117: Subsection 347(4) and subsection 347(7)

Clarifying requirements to apply to the Tribunal for review of a reviewable migration or reviewable protection decision

223. These items substitute references to the relevant subsections of section 347 of the Migration Act. These amendments are consequential to the amendment outlined above to subsections 347(2) and (3) to clarify the requirements for a properly made application for a review of a reviewable migration decision or reviewable protection decision.

Item 118: Subsection 348(1) (note)

Clarifying requirements to apply to the Tribunal for review of a reviewable migration or reviewable protection decision

224. This item repeals the note to subsection 348(1), which (prior to these amendments) provides the Tribunal has no jurisdiction to review a decision if the application for review is not properly made.

225. This amendment is consequential to the amendment to insert new subsections 348(2) and (3) outlined below that provide the Tribunal must not review a decision if the application is not properly made, and the requirements for making a properly made application.

Item 119: Subsection 348(2)

Clarifying requirements to apply to the Tribunal for review of a reviewable migration or reviewable protection decision

226. This item repeals and replaces subsection 348(2) of the Migration Act to explicitly state that the Tribunal must not review an application made under sections 347 and 347A of the Migration Act that is not properly made. The effect of this amendment is that the Tribunal will not have jurisdiction to review an application made under Part 5 of the Migration Act if it is not properly made. This sits alongside existing subsection 348(1) which provides that the Tribunal must review an application which has been properly made. Together, these provisions put beyond doubt how the Tribunal is to deal with applications for reviewable migration decisions and reviewable protection decisions.

227. The item also inserts new subsection 348(3) which details what constitutes a properly made application for reviewable migration decisions and reviewable protection decisions. New subsection 348(3) provides that an application for review under sections 347 and 347A is properly made if, and only if:

•

it is made within the period specified in subsection 347(2)

•

it includes any information and is accompanied by any documents prescribed for the application under subsection 347(2) and provided within the period specified in that subsection,

•

it is accompanied by any fee prescribed for the application (if the application is for review of a reviewable migration decision), under subsection 347(3), and within the period required by subsection 347(2), and

•

it is made by a person with standing to make the application.

228. Any application that does not contain each of these elements is not an application that has been properly made, which means that the Tribunal must not review the decision (per new subsection 348(2)). These amendments provide certainty for the Tribunal and applicants in relation to the requirements to apply for review of a reviewable migration or protection decision.

229. Subsection 348(4) provides that the Tribunal must not review, or continue to review, a reviewable migration decision or a reviewable protection decision in relation to which the Minister has issued a conclusive certificate under section 339 of the Migration Act. This replicates the existing law.

Item 120: Subsection 348A(1)

Removing administrative burdens to ensure decision-makers participate in GAP proceedings

230. This item amends subsection 348A(1) of the Migration Act to provide that the Minister is taken to be a non-participating party in proceedings before the Tribunal, except in relation to proceedings before the guidance and appeals panel.

231. Existing subsection 348A(1), as amended by Consequential Act 1, provides that the Minister is taken to be a non-participating party in Tribunal review proceedings under section 61 of the ART Act. Section 61 of the ART Act prescribes conditions where a decision-maker who has elected not to participate in a proceeding is a non-participating party under the ART Act. This includes that the proceeding must not be a guidance and appeals panel proceeding, reflecting the policy intention that guidance and appeals panel proceedings should always be contested to ensure that matters raising issues of significance to administrative law are properly ventilated.

232. The Migration Act deems the decision-maker not to be a participating party in all circumstances, displacing the requirements of section 61. As a result, if the President were to refer a matter to the guidance and appeals panel under section 122 of the ART Act, the Minister would continue to be a non-participating party until the Tribunal ordered otherwise under section 63(2) of the ART Act. This would be inconsistent with the position that a decision-maker should always participate in proceedings before the guidance and appeals panel, which is the arrangement in relation to all other types of reviews.

233. The amendment ensures that the Tribunal has the assistance of the decision-maker when an application is referred to the guidance and appeals panel by the President under section 122 of the ART Act on the basis that it raises an issue of significance to administrative decision-making. Under sections 109 and 110 of the ART Act, a decision of the guidance and appeals panel that has been referred because it raises an issue of significance becomes a guidance decision to which Tribunal members making similar decisions are required to have regard. Given the implications for how decision-makers should act in relation to those matters in future, it is important that the decision-maker participates in these reviews.

Part 13 - Agriculture, Fisheries and Forestry

Primary Industries Levies and Charges Collection Act 2024

Item 121: Subsection 48(8) (note)

Updating legislative references

234. This item updates the note to subsection 48(8), replacing the legislative reference to section 27A of the AAT Act with a reference to the equivalent provision in the ART Act. Consistent with section 27A of the AAT Act, section 266 of the ART 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.

235. Section 48 of the Primary Industries Levies and Charges Collection Act 2024 provides a mechanism for internal review and reconsideration of a decision by the Secretary of the Department. This amendment is technical in nature and ensures the note to subsection 48(8) remains accurate.

Items 122 and 123: Section 49 (heading) and section 49

Terminology changes

236. These items amend terminology. See explanation of general terminology changes above.

237. Section 49 of the Primary Industries Levies and Charges Collection Act 2024 sets out which decisions a person may apply to have reviewed by the Tribunal. These items make technical amendments that do not otherwise affect the operation of the Act.

Primary Industries Levies and Charges Disbursement Act 2024

Item 124: Subsection 84(8) (note)

Updating legislative references

238. This item updates the note to subsection 84(8), replacing the legislative reference to section 27A of the AAT Act with a reference to the equivalent provision in the ART Act. Consistent with section 27A of the AAT Act, section 266 of the ART 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.

239. Section 84 of the Primary Industries Levies and Charges Disbursement Act 2024 provides for internal reconsideration of a decision by the Secretary of the Department to refuse to grant a person an approval. This amendment is technical in nature and ensures the note to subsection 84(8) remains accurate.

Items 125 and 126: Section 85 (heading) and subsection 85(1)

Terminology changes

240. These items amend terminology. See explanation of general terminology changes above.

241. Section 85 of the Primary Industries Levies and Charges Disbursement Act 2024 provides for the types of decisions that are reviewable by the Tribunal. These items make technical amendments that do not otherwise affect the operation of the Act.

Item 127: Subsection 85(3)

Updating legislative references

242. This item updates a legislative reference to subsection 27(1) of the AAT Act to instead refer to the equivalent provision of the ART Act, section 17.

243. Consistent with section 27(1) of the AAT Act, under section 17 of the ART Act, any person whose interests are affected by a decision has standing to apply to the Tribunal for review of that decision. The effect of subsection 85(3) is that an application under subsection 85(1) in relation to the relevant decision under subsection 40(1) by the Minister to revoke a declaration of a body as a recipient body may only be made by the body covered by the revocation. The body covered by the revocation would have a special interest in relation to the review of the decision for the relevant revocation in subsection 40(1).

244. This amendment is technical in nature, and ensures subsection 85(3) continues to operate in substantively the same way in relation to the Tribunal.

Part 14 - Infrastructure, Transport, Regional Development, Communications and the Arts

New Vehicle Standards Efficiency Act 2024

Items 128, 129 and 130: Paragraph 69(2)(i), paragraph 85(c) and section 89

Terminology changes

245. These items amend terminology. See explanation of general terminology changes above.