Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Hon Michelle Rowland MP)STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Administrative Review Tribunal and Other Legislation Amendment Bill 2025
12. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
13. The Administrative Review Tribunal and Other Legislation Amendment Bill 2025 (the Bill) would expand the Administrative Review Tribunal's (Tribunal) ability to determine matters without conducting the hearing of the proceeding.
Amendments to the ART Act
14. This Bill would amend the Administrative Review Tribunal Act 2024 (ART Act) to introduce an additional circumstance in which the Tribunal is able to exercise a discretion to make a substantive decision in a matter without conducting an oral hearing under (except in relation to 'applications to be reviewed on the papers' within the meaning of new Division 4A of Part 5 the Migration Act 1958 (Migration Act)). The additional circumstance is if:
- •
- it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding
- •
- it appears to the Tribunal that it is reasonable in the circumstances to make its decision in the proceeding without holding the hearing of the proceeding, and
- •
- the Tribunal has given the parties to the proceeding (other than a non-participating party) a reasonable opportunity to make submissions to the Tribunal in relation to the Tribunal making its decision without holding the hearing of the proceeding, and the Tribunal has taken into account any submissions received.
15. The new discretion to determine a matter without conducting an oral hearing under the ART Act would need to be exercised consistently with the Tribunal's obligation to afford parties an opportunity to present their case under section 55 of the ART Act.
Amendments to the Migration Act
16. This Bill would amend the Migration Act to introduce a new Division 4A which would require the Tribunal to make a decision on a review of certain kinds of reviewable migration decisions – including applications for review of decisions to refuse to grant a student visa – without conducting an oral hearing in
17. Applications which are required to be reviewed on the papers under new Division 4A would be subject to a new, bespoke review procedure. The review would be conducted entirely on the basis of written materials, without the Tribunal holding an oral hearing or any other Tribunal case event. The applicant would be given an opportunity to present their case to the Tribunal, and would be able to provide new information to the Tribunal, in writing only.
18. The provisions in new Division 4A would constitute an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. The requirements codify how the Tribunal must give an applicant an opportunity to present their case in relation to certain matters, and how the Tribunal must provide information to the applicant, before proceeding to a decision without holding a hearing.
Human rights implications
19. The Bill engages the following human rights:
- •
- The right of an effective remedy and the right to a fair hearing in Articles 2(3) and 14 of the International Covenant on Civil and Political Rights (ICCPR).
Right of an effective remedy and the right to a fair hearing in Articles 2(3) and 14 of the ICCPR
20. Article 2(3) of the ICCPR provides that States shall undertake to ensure the right to an effective remedy for any violation of rights or freedoms recognised by ICCPR. It includes the right to have a remedy determined by competent judicial, administrative or legislative authorities. This right also encompasses the duty to ensure competent authorities enforce any such remedies when granted.
21. This Bill as a whole promotes the right to an effective remedy by supporting the operation of an administrative review tribunal that conducts quick and efficient tribunal review with as little formality and expense as a proper consideration of the matter requires.
22. Article 14(1) of the ICCPR protects the right that all persons are equal before courts and tribunals. It further provides that every person, in the determination of rights and obligations in a 'suit of law' is entitled to a 'fair and public hearing by a competent, independent and impartial tribunal established by law'. Article 14(1) also recognises that 'the press and public may be excluded from all or part of a trial for reasons of morals, public order (order public) or national security in a democratic society, or when the interest of the private lives of the parties so requires...'.
23. The extent to which Article 14(1) applies to administrative review proceedings (whether such proceedings constitute a 'suit at law') is not fully settled.
Amendments to the ART Act
24. The amendments to the ART Act would promote the right to an effective remedy and right to a fair hearing (to the extent it applies in Tribunal matters) by enabling the Tribunal to exercise discretion as to its procedure, and proceed in the most proportionate way of dealing with a matter, which supports timely receipt of an effective remedy for applicants. The proposed amendments to the ART Act do not limit the Tribunal's ability to afford applicants an effective remedy, or a fair hearing.
25. These amendments would expand the procedural powers that the Tribunal has available to it, such that it is able to exercise its discretion to dispense with the conducting of an oral hearing in a matter. This is consistent with Tribunal's objective at paragraph 9(c) of the ART Act, which requires that the Tribunal ensures that applications to the Tribunal are resolved as quickly, and with as little formality expense, as a proper consideration of the matters before the Tribunal permits.
26. The expanded discretion to determine a matter without conducting an oral hearing would be accompanied by safeguards to ensure that the discretion is exercised in appropriate circumstances. The Tribunal would only be able to exercise the discretion in circumstances where it is satisfied that it would be able to adequately determine the issues for determination without holding an oral hearing, and the exercise of the discretion is reasonable in the circumstances. This recognises that procedural fairness does not require than an oral hearing be conducted in every case.
27. The Tribunal would also be required to exercise this new discretion in accordance with its obligation under the ART Act to ensure that each party to a proceeding is given a reasonable opportunity to present their case, access any information or documents to which the Tribunal proposes to have regard, and make submissions an provide evidence.
Amendments to the Migration Act
28. The amendments to the Migration Act engage the right to an effective remedy and right to a fair hearing (to the extent it applies in Tribunal matters) by defining the applicant's opportunity to be heard on the papers, without an oral hearing, in reviews of certain reviewable migration decisions, including decisions to refuse to grant a student visa.
29. The amendments pursue the legitimate objective of supporting efficient review of such decisions, in light of the significant volume of review applications and the importance for the integrity of Australia's migration system for reviews of visas to be conducted expeditiously. As onshore applicants seeking review of a decision to refuse the grant of a student visa or another kind of temporary visa are entitled to stay in Australia on a bridging visa for the duration of the merits review process, efficient review procedures reduce delays in decision-making, and applicants benefit from timely receipt of an effective remedy.
30. It is appropriate for applications for review of a decision to refuse a student visa to be reviewed on the papers, having regard to the nature of the issues under review, the temporary and short-term nature of a student visa, and the low volume and complexity of written materials relevant to proceedings of this kind. Enabling decisions of this kind to be reviewed on the papers would facilitate an efficient and proportionate method of review, while ensuring that genuine applicants are given a meaningful opportunity to present their case to the Tribunal in writing. To the extent that the amendments limit the right to an effective remedy and right to a fair hearing, this is in pursuit of the legitimate goal of providing a proportionate and efficient method of merits review.
31. As an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with, new Division 4A of Part 5 of the Migration Act provides certainty for applicants and the Tribunal as to the steps that are required in order to conduct a proper review of the matters before it. New Division 4A includes safeguards that ensure that applicants are afforded an opportunity to make their case in writing. These include that:
- •
- applicants are required to be invited to provide written submission and evidence on relevant issues
- •
- the Tribunal is required to give applicants adverse information that would be the reason or part of the reason for affirming the decision under review, and invite them to comment on that information
- •
- the applicant is not limited in the information that they are able to give to the Tribunal in presenting their case in writing
- •
- the Tribunal is required to make its decision after considering any submissions, evidence and comments given by the applicant
32. The nature of the review conducted on the papers will necessarily limit the applicant's opportunity to present their case orally. To the extent that this limits the right to an effective remedy and right to a fair hearing, this is in pursuit of the legitimate goal of proportionate review, and is reasonable, necessary and proportionate.
Conclusion
33. This Bill is compatible with human rights because it promotes the protection of human rights and to the extent that it may limit human rights, those limits are reasonable, necessary and proportionate.