Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)SCHEDULE 4 - AMENDMENT OF THE ADMINISTRATIVE REVIEW TRIBUNAL ACT 2024
OUTLINE
283. This Schedule contains amendments to the ART Act.
AMENDMENTS
Item 1: Section 4 (subparagraph (b)(i) of the definition of exempt security record decision )
Terminology changes
284. This item updates the definition of exempt security record decision in the ART Act to mirror the change made by the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 3) Act 2024 to the AAT Act.
285. The National Security Amendment (Comprehensive Review and Other Measures No. 3) Act 2024 inserts new categories of exempt records into section 33 of the Archives Act. Under new subsections 33(4A) and 33(4C) of the Archives Act, a Commonwealth record is an exempt record if it contains information or matter that identifies a current or former ASIO or ASIS employee, affiliate or agent, or from which the identity of such a person could reasonably be inferred, or that could reasonably lead to the identify of such person being established, and the information or matter has not been lawfully been made public by means of broadcasting or reporting proceedings of Parliament.
286. This item amends the definition of exempt security record decision in the ART Act to insert references to new subsections 33(4A) and 33(4C). This will ensure that review of a decision of the National Archives of Australia under the Archives Act relating to records that identify ASIO or ASIS employees, affiliates and agents are considered by the Intelligence and Security jurisdictional area. This will ensure the identity of current and former ASIO employees, ASIO affiliates, staff members of ASIS and agents of ASIS that are included in the Commonwealth records are protected from public access.
Item 2: Section 25
Practice directions can extend timeframe to provide documents
287. This item amends section 25 of the ART Act to provide that practice directions can specify an alternative timeframe for decision-makers to provide the Tribunal with additional documents.
288. Currently, section 25 of the ART Act provides that where a decision-maker comes into possession or control of a document relevant to a review, and the document has not been provided to the Tribunal, the decision-maker must provide it to the Tribunal within 28 days.
289. This amendment clarifies that practice directions can extend the time for providing documents. The amendment ensures that the Tribunal retains control over the production of documents. For some matters, it may be more efficient for the Tribunal to set a specific date for the production of additional documents (for example, 2 weeks before a final hearing), rather than continuing to receive materials before a hearing has been scheduled.
Item 3: Paragraph 84(2)(b)
Standing to continue proceeding where original applicant has died, become bankrupt, is wound up, ceases to exist, or becomes subject to any form of liquidation administration
290. This item repeals and substitutes paragraph 84(2)(b) to provide that only a person who would have been entitled to apply for review of a decision at the time the substantive application was made may apply under clause 84(2) to continue the application where the original applicant cannot continue the proceeding due to death, bankruptcy, winding up, liquidation or administration.
291. Section 17 of the ART Act provides the general rule that a person whose interests are affected by a decision may apply to the Tribunal for review of that decision. Some Commonwealth legislation modifies this rule by setting out who may apply to the Tribunal for review of a decision. Where legislation limits who can bring an application for review of a decision, it is intended that only persons who originally had standing to apply for review of the substantive decision may apply to continue the application (in addition to the persons mentioned in paragraph 84(2)(a)).
292. New paragraph 84(2)(b) ensures that section 84(2) does not operate to expand the category of persons able to continue an application where modified standing rules have narrowed the general standing rule under section 17 of the ART Act.
Item 4: After subsection 94(3)
Clarifying meaning of question of law
293. This item inserts new subsection 94(3A) of the ART Act which clarifies that whether information or a document should be disclosed, or a question should be answered, are questions of law.
294. This is a technical amendment to ensure the Court has jurisdiction in relation to appeals lodged under section 172 in relation to a public interest decision or referral of a question of law under section 185.
295. Under Division 7 of Part 4 of the ART Act, the Attorney-General may certify that disclosure of certain information or the answering of a question in a proceeding would be contrary to the public interest. In certain circumstances, the Tribunal may decide that the information should be disclosed or the question answered (known as a public interest decision). A person may appeal from a public interest decision or the President may refer the question to the Federal Court of Australia. The effect of this amendment is to put beyond doubt the court's jurisdiction in relation to these appeals and referrals. This maintains existing arrangements under the AAT Act.
Item 5: After subsection 174(2)
Pausing timeframe to appeal to the Federal Court of Australia over the holiday period
296. This item inserts new subsection 174(2A) of the ART Act which provides that the period between 24 December and 14 January is excluded 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. This is consistent with arrangements under the Federal Court Rules 2011, which similarly excludes this date range when calculating timeframes in proceedings in the Federal Court of Australia.
297. New subsection 174(2A) is in recognition of the practical difficulties and potential unfairness which may adversely impacts parties where the Tribunal issues a decision in late December. The effect of this amendment is to enable parties to obtain legal advice on the process, procedure and prospects of an appeal, before the expiration of the timeframe for appeal.
Item 6: At the end of section 278
Delegation of the Attorney-General's power to authorise the payment of costs and to grant legal or financial assistance
298. This item inserts new subsection 278(4) to provide that the delegation power in section 278 of the ART Act does not affect or limit the Attorney-General's ability to delegate powers in sections 59 and 294 of the ART Act (to authorise the payment of costs or grant legal or financial assistance), in accordance with section 17(2) of the Law Officers Act. The amendment ensures that the delegation power in section 278 of the ART Act, which is more limited than the Attorney-General's usual delegation power under the Law Officers Act, does not restrict the Attorney-General from making these existing delegations.
299. Section 278 of the ART Act allows the Minister responsible for administering the ART Act to delegate functions or powers in the ART Act to the Secretary of the Department or the President of the Tribunal.
300. Section 17(2) of the Law Officers Act allows the Attorney-General to delegate functions and powers by written instrument to the Secretary of the department or other persons holding or performing the duties of the office specified in the instrument of delegation.
301. Under the ART Act, the Attorney-General may become a party to a proceeding in the Tribunal by giving written notice to the Tribunal (subsection 59(1)). Subsection 59(3) provides that the Attorney-General may authorise the Commonwealth to pay the costs that another party reasonably incurs as a result of the Attorney-General being a party to the proceeding. The Attorney-General may also grant a person legal or financial assistance in relation to Tribunal proceedings in accordance with section 294 of the ART Act.
302. Sections 59 and 294 of the ART Act expressly repose powers in the 'Attorney-General', rather than the 'Minister', reflecting an intention that these legal assistance functions should remain reposed in the Attorney-General, even if portfolio responsibility for the ART Act is moved out of the Attorney-General's portfolio.
303. To ensure the efficient and effective operation of the legal assistance framework, it is expected that the Attorney-General's power to authorise the payment of costs or grant legal or financial assistance under sections 59 and 294 of the ART Act will need to be delegated to certain officers in the department at the executive level and above.
304. The amendment is necessary to ensure that the Attorney-General may delegate powers under sections 59 and 294 of the ART Act to relevant executive and senior executive level officers in the department, since section 278 of the ART Act only permits delegation to the Secretary or President of the Tribunal. This will support the effective operation of the legal assistance framework, including in the event that portfolio responsibility for the ART Act is moved out of the Attorney-General's portfolio.
Items 7 and 8: Subsection 284(1) (table item 13) and subsection 285(1) (table items 26 to 28)
Removing delegation power
305. These items remove item 13 of the table in section 284 and items 26, 27 and 28 of the table in section 285.
306. The ART Act currently enables the President to authorise members and registrars to exercise a wide range of powers and functions under Part 6, which relates to the Intelligence and Security jurisdictional area. These powers involve high levels of sensitivity, including making and recording findings and communicating decisions.
307. The effect of these amendments is to prevent the President from authorising members to perform or exercise a function or power of the Tribunal under Part 6 of the ART Act. Given the Tribunal must be constituted by at least one Deputy President in this jurisdictional area, it is not appropriate to allow these powers and functions to be exercised by any other member of the Tribunal.