House of Representatives

Tribunals Amalgamation Bill 2014

Explanatory Memorandum

(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)
This memorandum takes account of amendments made by the Senate to the bill as introduced and supersedes the explanatory memorandum tabled in the Senate

Schedule 2 - migration amendments

Overview

722. Schedule 2 to the Bill would amend the Migration Act to support amalgamation.

723. Key changes include:

·
removal of redundant organisation and establishment provisions where equivalent provisions in the AAT Act will apply
·
replacement of references to the former MRT or RRT with references to the amalgamated Tribunal
·
amendments to preserve a distinction between the AAT exercising its newly-conferred jurisdiction in the Migration and Refugee Division, and the AAT exercising its existing migration jurisdiction where necessary to continue existing operational and procedural requirements, and
·
amendments to retain the current scope and effect of provisions relating to the judicial review of migration decisions.

724. The schedule will also provide contingent amendments to support the amalgamation in the event that all or any of the following bills are enacted:

·
the Migration Amendment (Protection and Other Measures) Bill 2014
·
the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014
·
the Migration Amendment (Regaining Control Over Australia's Protection Obligations) Bill 2014, and
·
the Migration Amendment (Character and General Visa Cancellation) Bill 2014.

Part 1 - Main amendments

Amendments to the Migration Act 1958

Item 1 - Subsection 5(1)

725. Item 1 would insert a new defined term 'AAT Act migration decision' in section 5(1) of the Migration Act. This term would mean a decision that is referred to in proposed new section 474A of the Migration Act.

726. The new term would encompass certain types of decisions that are currently made by, or in relation to, the MRT or RRT under the Migration Act which would be made by, or in relation to, the Migration and Refugee Division under the AAT Act post amalgamation.

727. The purpose of this amendment is to support the creation of a mechanism for identifying decisions that are currently covered by the provisions in the Migration Act dealing with 'non privative clause' decisions. This mechanism would be used to ensure that existing judicial review provisions would continue to apply to certain decisions that are currently made under the Migration Act that would in future be made under the AAT Act, as those decisions will technically no longer fall within the definition of 'non privative clause decisions'.

Item 2 - Subsection 5(1) (at the end of the definition of migration decision )

728. Item 2 would insert into the definition of 'migration decision' new paragraph (d), which would refer to an AAT Act migration decision.

729. The effect of this amendment would be to avoid doubt that those decisions made by, or in relation to, the MRT and RRT previously designated as non-privative clause decisions under section 474(6) and therefore migration decisions, would remain migration decisions when made by, or in relation to, the amalgamated Tribunal. This would preserve the effect of existing provisions in the Migration Act relating to judicial review of those decisions.

Items 3 - 7 - Subsection 5(1) (definition of Migration Review Tribunal ), Subsection 5(1), Subsection 5(1) (definition of Refugee Review Tribunal ), Subsection 5(1) (definition of RRT-reviewable decision )

730. Items 3 to 7 would repeal terms defined in subsection 5(1) that would not be required in relation to the amalgamated Tribunal, and insert new defined terms where necessary.

731. Items 3, 6 and 7 would repeal defined terms 'Migration Review Tribunal', 'Refugee Review Tribunal' and 'RRT-reviewable decision' respectively from subsection 5(1). These definitions are no longer needed as a consequence of the amalgamation.

732. Items 4 and 5 would insert new defined terms 'Part 5-reviewable decision' and 'Part 7-reviewable decision'. These terms would be needed to identify matters that are governed by procedural rules in either Part 5 or Part 7 of the Migration Act.

Item 8 - Subsection 5(1)

733. Item 8 would insert a new defined term 'Tribunal', which would mean the AAT.

Item 9 - Paragraphs 5(9A)(a) to (d)

734. Item 9 would repeal paragraphs in subsection 5(9A) that refer to certain decisions that are made on review by the MRT or RRT and substitute new paragraphs that refer to Part 5-reviewable decisions or Part 7-reviewable decisions.

735. Subsection 5(9A) deals with when certain applications are finally determined. The purpose of this item is to preserve the effect of section 5(9A).

Item 10 - Paragraphs 5(9B)(a) and (b)

736. Subsection 5(9B) excludes certain decisions from the effect of section 5(9A) relating to when certain applications are finally determined.

737. Item 10 would repeal paragraphs that refer to certain decisions that are made on review by the MRT or RRT and substitute paragraphs that refer to Part 5-reviewable decisions or Part 7-reviewable decisions.

738. This purpose of this item is to preserve the effect of existing section 5(9B).

Item 11 - Subsection 5(9B) (note)

739. Item 11 would repeal the note under subsection 5(9B) that explains that decisions referred to in subsection 5(9B) are for the remission of some matters by the relevant Tribunal, as the note is not necessary.

Item 12 - Paragraph 91G(2)(a)

740. Item 12 would omit references to the MRT and the RRT in paragraph 91G(2)(a). These references would not be required as a consequence of the amalgamation.

Item 13 - Section 99

741. Item 13 would omit the words 'or a person or Tribunal' in section 99 and substitute the words ', a person or the Tribunal'.

742. This amendment is consequential to the establishment of the AAT as the only merits review tribunal for migration matters.

Item 14 - Section 103

743. Item 14 would omit the words 'a Tribunal' in section 103 and substitute the words 'the Tribunal'.

744. This amendment is consequential to the establishment of the AAT as the only merits review tribunal for migration matters.

Item 15 - Subsection 114(1)

745. Item 15 would omit the words 'the Administrative Appeals Tribunal, the Migration Review Tribunal or the Refugee Tribunal' from subsection 114(1) of the Migration Act and substitutes the words 'or the Administrative Appeals Tribunal'.

746. Existing subsection 114(1) provides that if the Federal Court, Federal Circuit Court, Administrative Appeals Tribunal, MRT or RRT set aside a decision under s109 of the Migration Act to cancel a visa, the visa is taken never to have been cancelled.

747. This amendment would repeal redundant references to the MRT and the RRT.

Item 16 - Paragraph 178(2)(b)

748. Item 16 would omit the words 'sections 391, 417 or 454' from paragraph 178(2)(b) and substitute the words 'or 417'.

749. Paragraph 178(2)(b) provides that a designated person is to be released from immigration detention if granted a visa under sections 65, 351, 391, 417 or 454 of the Migration Act. Sections 391 and 454 allow the Minister to substitute for an AAT decision about an MRT-reviewable decision or RRT-reviewable decision that was referred to the AAT, a more favourable decision. These sections are no longer necessary as a consequence of the amalgamation of the tribunals.

750. This amendment would remove references to visas granted under sections 391 and 454 of the Migration Act as a consequence of the repeal of these sections.

Item 17 - Subsection 261AKD(2) (paragraph (c) of the definition of permitted provision )

751. Item 17 would omit 'or tribunal' in subsection 261AKD(2) and substitute 'the Tribunal or another tribunal'.

752. Section 261AKD provides that it is an offence to cause a video recording to be provided to another person if it is not a permitted provision of the recording. A permitted provision includes provision of a recording for the purpose of a proceeding before a tribunal.

753. The purpose of this amendment is to substitute reference to the amalgamated Tribunal, to clarify that the provision of a recording for the purpose of a proceeding before the Tribunal or another tribunal is permitted.

Item 18 - Subsection 271(4) (definition of migration proceedings )

754. Subsection 271(4) defines 'migration proceedings' for the purposes of section 271.

755. Item 18 would repeal the existing definition of 'migration proceedings' in subsection 271(4) and substitute a new definition that removes redundant references to the MRT and MRT, but retains reference to the Tribunal.

756. The existing definition of migration proceedings includes certain court proceedings. The new definition would include those same proceedings. That is, proceedings under the Migration Act or relating to an offence against that Act.

757. This item would also replicate an existing note that cross-references the definition of 'offence against this Act' in section 5(1) of the Migration Act.

Item 19 - Section 275 (paragraph (a) of the definition of review authority

758. Item 19 would omit the words 'Migration Review Tribunal' in the definition of 'review authority' and substitute 'the Tribunal in reviewing a Part 5-reviewable decision'.

759. The amendment would be necessary to remove reference to the MRT as a consequence of the amalgamation.

Item 20 - Section 275 (paragraph (b) of the definition of review authority

760. Item 20 would omit the words 'Refugee Review Tribunal' in the definition of 'review authority' and substitute 'the Tribunal in reviewing a Part 7-reviewable decision'.

761. The amendment would be necessary to remove reference to the RRT as a consequence of the amalgamation.

Item 21 - Paragraph 276(2A)(a)

762. Item 21 would remove reference to sections 391 and 454 of the Migration Act from paragraph 276(2A)(a).

763. Paragraph 276(2A)(a) establishes when a person is taken to be giving immigration assistance in relation to requests for the Minister to exercise his or her power under section 351, 391, 417, 454 or 501J.

764. Sections 391 and 454 would become redundant as a consequence of the amalgamation. The purpose of this amendment is to remove reference to assistance for requests for the exercise of powers under sections 391 and 454, as a consequence of the repeal of these sections.

Item 22 - Subsection 277(4)

765. Item 22 would remove reference to sections 391 and 454 of the Migration Act from subsection 277(4) and substitutes '417'.

766. Subsection 277(4) sets out when a lawyer is not taken to be giving immigration legal assistance about for the Minister to exercise his or her power under section 351, 391, 417, 454 or 501J.

767. Sections 391 and 454 would become redundant as a consequence of the amalgamation. The purpose of this amendment is to remove reference to assistance in relation to requests for the exercise of powers under sections 391 and 454 of the Migration Act as a consequence of the repeal of these sections.

Item 23 - Paragraph 282(4)(e)

768. Item 23 would remove reference to sections 391 and 454 of the Migration Act from paragraph 282(4)(e).

769. Subsection 282(4)(e) sets out when a person is taken to have made immigration representations in relation to requests for the Minister to exercise his or her power under section 351, 391, 417, 454 or 501J.

770. The purpose of this amendment is to remove reference to immigration representations in relation to requests for the exercise of powers under sections 391 and 454 of the Migration Act as a consequence of the repeal of those sections.

Item 24 - Paragraph 336E(2)(f)

771. Item 24 would omit 'or tribunal' from paragraph 336E(2)(f) and substitute 'the Tribunal or another tribunal'.

772. Existing section 336E provides that it is an offence to disclose identifying information where the disclosure is not a permitted disclosure.

773. The purpose of this amendment is to clarify that the disclosure of identifying information for the purpose of a proceeding before the amalgamated Tribunal or another tribunal is permitted.

Item 25 - Part 5 (heading)

774. Item 25 omits the heading 'Part 5-Review of Decisions' and replaces it with 'Review of Part-5 Reviewable decisions'.

775. The amendment would insert a heading that makes it clear that the Part applies only to the review of Part 5-reviewable decisions.

Item 26 - Before section 337

776. Item 26 would insert new sections 336M and 336N.

777. New section 336M would contain a simplified outline that sets out in general terms the avenues of merits review under the Migration Act.

778. New section 336N would provide that Part 5 of the Migration Act applies to the review by the Tribunal of Part 5-reviewable decisions, and that the Tribunal's powers in relation to Part 5-reviewable decisions may be exercised in the Migration and Refugee Division only.

Item 27 - Section 337

779. Item 27 would repeal the definitions of 'Deputy Principal Member' and 'MRT-reviewable decision', as these definitions would be redundant in relation to the amalgamated Tribunal.

Item 28 - Section 337

780. Item 28 would insert new definitions of 'officer of the Tribunal' and 'Part 5-reviewable decision'.

781. 'Officer of the Tribunal' would be defined to have the same meaning as in the AAT Act. Item 9 of Schedule 1 of the Bill would amend the definition in that Act to mean the Registrar or a person appointed as an officer under that Act.

782. 'Part 5 - reviewable decision' would be defined by reference to section 338 of the Migration Act, which sets out those decisions that are currently reviewable by the MRT. Existing section 338 would be also amended to substitute references to the MRT with references to Part 5-reviewable decisions.

Item 29 - Section 337

783. Item 29 would repeal the definitions of 'presiding member', 'Principal Member', 'Senior Member' and 'Tribunal' in section 337. The definitions are not required in the Migration Act as a consequence of the amalgamation.

784. The amalgamated Tribunal would not have a Principal Member.

785. The definition of 'presiding member' is no longer necessary because the meaning of the term is clear.

786. Senior members would be dealt with in provisions of the AAT Act rather than the Migration Act.

787. Section 337 currently defines 'Tribunal' to mean the MRT for the purposes of Part 5 of the Migration Act. This definition would not be required post amalgamation.

Item 30 - At the end of section 337

788. Item 30 would insert a note that 'Tribunal' for the purposes of Part 5 means the AAT, and would provide a cross-reference to the definition of Tribunal in subsection 5(1) of the Migration Act.

Item 31 - Division 2 of Part 5 (heading)

789. Item 31 would repeal a heading that refers to the MRT and replace it with the heading 'Division 2-Part 5-reviewable decisions', to reflect the amalgamated Tribunal.

Item 32 - Section 338 (heading)

790. Item 32 repeals the heading 'Review of Decisions' and substitutes 'Definition of Part 5-reviewable decisions'.

Item 33 - At the end of section 339

791. Item 33 would insert a note to section 339 that explains that if the Minister issues a conclusive certificate under section 339 in relation to a decision on the basis that it would be contrary to the national interest for a decision to be changed or reviewed, then the decision is not reviewable under Part 5 of the Migration Act.

Items 34-38 - Division 3 of Part 5 (heading), Section 347 (heading), Section 348 (heading), Section 349 (heading), Section 352 (heading)

792. Items 34 to 38 would repeal headings for Division 3 of Part 5 and sections 347 to 349 and section 352 that refer to the former MRT. The items would replace them with headings that refer to decisions reviewable under Part 5 by the amalgamated Tribunal.

Item 39 - Subsection 352(1)

793. Item 39 would omit reference to the MRT in subsection 352(1) and substitute a reference to the amalgamated Tribunal.

Item 40 - Subsection 352(3)

794. Item 40 would omit reference to 'an MRT-reviewable decision' and insert the descriptor 'certain bridging visa decisions' to give a broad indication of the type of decisions that are covered in the cross-reference to section 338(4).

Item 41 - Division 4 of Part 5 (heading)

795. Item 41 would replace the heading 'Exercise of Tribunal's power' with a heading that refers to the powers of the amalgamated Tribunal in relation to decisions reviewable under Part 5 of the Migration Act.

Item 42 - Subsection 353(1)

796. Item 42 would repeal subsection 353(1), which provides the objective of the MRT. The objective of the amalgamated Tribunal would instead be set out in proposed new section 2A of the AAT Act. Proposed new section 2A of that Act (inserted by Item 1 of Schedule 1 to the Bill) would incorporate all of the matters in subsection 353(1) of the Migration Act.

Items 43 and 44 Subsection 353(2)

797. Items 43 and 44 would re-number subsection 353(2) as a consequence of the repeal of subsection 353(1) and clarify that the principles set out in the section apply to decisions that are reviewed by the amalgamated Tribunal under Part 5 of the Migration Act. These principles are that the Tribunal is not bound by technicalities, legal forms or rules of evidence, and shall act according to substantial justice and the merits of the case.

Item 45 - Sections 353A, 354, 355, 355A, 356 and 357

798. Item 45 would repeal sections 353A, 354, 355, 355A, 356 and 357. These sections are not required for the amalgamated Tribunal because there are equivalent provisions in the AAT Act that would apply to decisions reviewed by the amalgamated Tribunal under Part 5 of the Migration Act.

799. The current provisions deal with the power of the Principal Member to give directions, the constitution and reconstitution of the Tribunal, the resolution of disagreements between members, and the presiding member in relation to a review. These issues would be dealt with in new sections 18B, 19A, 19B, 19D and 42 of the AAT Act (inserted by items 27 and 107 of Schedule 1).

Item 46 - Division 5 of Part 5 (heading)

800. Item 46 would replace the heading 'Conduct of review' with a heading that makes clear that the division only applies to decisions reviewable by the amalgamated Tribunal under Part 5 of the Migration Act.

Item 47 - At the end of subsection 361(4)

801. Subsection 361(4) provides that the section does not apply to decisions covered by subsection 338(4). Item 47 would insert the descriptor 'certain bridging visa decisions' after the cross-reference to subsection 338(4), as these words give a broad indication of the types of decisions that are covered in that subsection.

Item 48 - Section 362 (heading)

802. Item 48 would repeal the current heading for section 362, 'Applicant may request Tribunal to call witnesses', and substitute the heading 'Certain bridging visa decisions-request to call witnesses'. The new heading would provide a broad description of the scope of the provision, which only applies to certain bridging visa decisions.

Item 49 - Paragraph 363(1)(c)

803. Item 49 would omit reference to section 377, which is to be repealed because the issues it covers are to be covered instead by section 66 of the AAT Act (Items 145 and 146 of Schedule 1 of the Bill).

Item 50 - Paragraph 363(2)

804. Item 50 would omit the words 'reviewable decisions' and substitute 'Part 5-reviewable decisions'.

805. The amendment would make clear that the provision applies to decisions reviewed under Part 5 of the Migration Act by the Migration and Refugee Division of the amalgamated Tribunal.

Item 51 - Subsection 363(3)

806. Item 51 would remove the term 'presiding member' and replace it with references to the Tribunal, for the purpose of simplification and consistency with Part 7 of the Migration Act.

Item 52 - Paragraph 363(3)(b)

807. Item 52 would omit the words 'such documents as are' and substitute the words 'the documents or things' to clarify that the Tribunal's power to summons documents for the purposes of a review under Part 5 of the Migration Act includes the power to summons things referred to in the summons.

Item 53 - Subsection 363(4)

808. Item 53 would remove the words 'presiding member shall not' and substitute words 'Tribunal must not' to modernise the language of the provision. The amendment is not intended to change the effect of subsection 363(4).

Item 54 - Subsection 363(5)

809. Item 54 would repeal subsection 363(5), which currently provides that the oath or affirmation to be taken or made by a person for the purposes of section 363 is an oath or affirmation that the evidence that the person gives will be true.

810. The reason for repealing the subsection is that is not necessary to prescribe the content of an oath or affirmation in legislation. Rather, this is a matter that can be dealt with administratively by the Tribunal.

Item 55 - Section 364

811. Section 364 deals with the power of the Tribunal to take evidence, including the power to authorise a person to take evidence on behalf of the Tribunal. The provision also provides that a person may take evidence inside or outside Australia, and sets out the obligations of a person to make a record of the evidence taken.

812. Item 55 would repeal the current section and replace it with a provision worded in a way that is better aligned with the equivalent provisions in new subsections 40(3) to (5) of the AAT Act (inserted by Item 102, Schedule 1 of the Bill).

813. The new provision would continue to require that a person who takes evidence on behalf of the Tribunal must provide a record of the evidence to the Tribunal, but would no longer expressly require that this be a written record. This would enable the person taking the record to provide to the Tribunal either a written, video or audio record of the evidence. This change would enable the Tribunal to utilise technological developments to enhance efficiency.

Item 56 - Section 367 (heading)

814. Item 56 would replace the existing heading for section 367 'Certain decisions to be made within prescribed period' to provide a descriptor that makes clear that the section relates to certain bridging visa decisions.

Item 57 - Subsection 367(1)

815. Item 57 would omit references to the MRT in subsection 367(1) and insert the words 'certain bridging visa decisions' to provide a broad description of the subject matter of subsection 338(4), which is cross referenced in the provision.

Item 58 - Division 6 of Part 5 (heading)

816. Item 58 would replace the existing heading 'Decisions of Tribunal' with a heading that makes clear that the Division only applies to decisions reviewable by the amalgamated Tribunal under Part 5 of the Migration Act.

Item 59 - Section 369

817. Item 59 would repeal section 369.

818. Section 369 provides that the Registrar of the MRT must publish MRT decisions that the Principal Member thinks are of particular interest, subject to the power in section 378 to limit publication if it is in the public interest to do so. This section is not required because the issue of publication would be dealt with in new section 66B of the AAT Act (inserted by Item 147 of Schedule 1 to the Bill).

Item 60 - Division 7 of Part 5

819. Item 60 would repeal Division 7 of Part 5 and substitute a new Division 7.

820. Division 7 of Part 5 establishes certain offences relating to MRT proceedings. These comprise failure of a witness to attend or provide documents as required by a summons, refusal to be sworn or answer questions when appearing before the Tribunal, and contempt of Tribunal.

821. New section 370 in Division 7 would establish the offence of failure to comply with a summons issued under section 363. The new section would harmonise the drafting of the existing offence provisions relating to failure of a person to attend or produce documents-currently contained in section 370 and subsection 371(2)-with the summons offence in the AAT Act. The amendment would simplify and modernise the language but retain the substance of the existing elements of the offence.

822. New section 371 would establish the offence of refusal to be sworn or answer questions. The new section would replace the current offence provision in section 371. The amendment would simplify and modernise the language but retain the substance of the existing elements of the offence.

823. The amendments would also:

·
repeal the existing penalty for failure to comply with a summons or be sworn and answer questions and substitute a new penalty, and
·
remove the defence of reasonable excuse for the offence.

824. Existing subsection 370(1) and section 371 provide a penalty of imprisonment for 6 months, or both.

825. The new subsection 370(1) and section 371 would provide a penalty of imprisonment for 12 months or 60 penalty units, or both. This would be part of a change to create consistent penalty provisions throughout the AAT Act and the provisions of the Migration Act relating to the Tribunal, as well as aligning penalties with those that apply in courts.

826. Existing subsections 370(1A) and 371(1A) provide that the offence provisions do not apply if the person has a reasonable excuse. This item would remove the defence of reasonable excuse, consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, which advises against the use of reasonable excuse defences. The rationale is that such defences are vague and therefore difficult to rely on, because it is unclear what needs to be established. There are also general defences in the Criminal Code (duress, mistake or ignorance of fact, intervening conduct or event, and lawful authority) which a person can rely on in place of the reasonable excuse defence.

827. While the privilege against self-incrimination applies in common law, for the avoidance of doubt, new subsections 370(2) and 371(3) would insert a specific defence of self-incrimination to the offences in subsection 370(1) and section 371. This provides certainty that the privilege would not be abrogated. The defence does not preclude or remove the powers to compel information that is not self-incriminatory from an individual. The defence also does not preclude the individual from having to provide information or produce documents that may incriminate others.

828. New notes to subsections 370(2) and 371(3) would state that a defendant bears an evidential burden in relation to establishing the matters in subsections 370(2) and 371(3) -see subsection 13.3(3) of the Criminal Code Act. Section 13.3 of the Criminal Code provides that in the case of a standard 'evidential burden' defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1). It is considered appropriate to cast the evidential burden on the defendant in these circumstances. The person who is being compelled to provide information or produce a document will be best placed to know whether complying might tend to incriminate the person.

829. It is noted also that legal professional privilege applies in common law and has an equivalent in the Evidence Act. As no express abrogation is applied to this provision, legal professional privilege is intended to apply.

830. Existing section 372 establishes the offence of contempt of Tribunal. It would not be necessary to re-instate a provision to this effect in the Migration Act for the amalgamated Tribunal, because its effect would be preserved by new section 63 of the AAT Act inserted by Item 144 of Schedule 1 of the Bill.

Item 61 - Division 8 of Part 5 (heading)

831. Item 61 would repeal the existing heading of Division 8 of Part 5, 'Miscellaneous', and substitute a heading that indicates that the Division applies to Part 5-reviewable decisions.

Item 62 - Sections 373, 374, 377 and 379

832. Item 62 would repeal sections 373, 374, 377 and 379.

833. Section 373 provides protections and immunities for members, witnesses and persons appearing before the MRT. This section would no longer be required because equivalent protections in relation to reviews by the amalgamated Tribunal would be provided by section 60 of the AAT Act (as amended by Item 134 of Schedule 1 to the Bill).

834. Section 374 provides for the payment of fees and allowances to persons, other than the applicant, summoned to appear before the Tribunal. This section is not required because such payments in relation to reviews by the amalgamated Tribunal will be provided for by section 67 of the AAT Act (Item 148, Schedule 1 of the Bill).

835. Section 377 establishes an offence for the disclosure of confidential information by a person who is or has been a member, acting member, officer or interpreter for the MRT. This section is not required because the disclosure of confidential information in relation to reviews by the amalgamated Tribunal to a court (which is defined by the AAT Act to mean any tribunal, authority or person having power to require the production of documents and the answering of questions) is prohibited under the Crimes Act 1914 and the Privacy Act 1988.

836. Section 379 is comprised of two subsections. Subsection 379(1) provides that the Tribunal may sit from time to time as required at such places in Australia as are convenient. This subsection is not required because new section 18C of the AAT Act (Item 27 of Schedule 1 of the Bill) would provide for the Tribunal to sit as required at any place in Australia or an external territory as are convenient.

837. Subsection 379(2) provides that the Tribunal constituted by one member or other members may sit and exercise the powers of the Tribunal even though the Tribunal constituted by another member or members is at the same time sitting and exercising powers. There is no need for an express provision stating this established principle.

Item 63 - Division 8A of Part 5 (heading)

838. Item 63 would repeal the existing heading of Division 8A of Part 5, 'Giving and receiving review documents etc.', and substitute a heading that indicates that the Division applies to Part 5-reviewable decisions.

Item 64 - Section 379E

839. Item 64 would repeal section 379E.

840. Section 379E provides that if the Tribunal is required to give a document to a person, the Tribunal may give a copy of the document by the same means as the Tribunal could give the document itself.

841. This principle does not need to be expressly stated in the legislation. It is uncontroversial that copies of documents may be provided in such circumstances.

Items 65 - 67 - Section 379F(1), Paragraph 379F(1)(b), Subsection 379F(2)

842. Items 65 to 67 would make consequential amendments to section 379F, to reflect the repeal of section 353A of the Migration Act due to a similar provision in new section 18B of the AAT Act (Item 27, Schedule 1 of the Bill).

843. Paragraph 379F(1)(b) enables a person to comply with a requirement to give a document or thing to the Tribunal by complying with directions issued by the Principal Member under section 353A. For the amalgamated Tribunal, such directions would be issued pursuant to new section 18B (Item 27 of Schedule 1 of the Bill). Item 66 would therefore substitute reference to section 353A with reference to new section 18B of the AAT Act.

844. Subsection 379F(2) provides that directions under section 353A may provide for a person to give a copy of a document rather than the document itself. Item 67 would repeal subsection 279F(2), because it both relates to a repealed provision and is otherwise unnecessary.

845. Item 65 would omit the numbering '(1)' in section 379F as a consequence of the repeal of the only other subsection in that section.

Item 68 - Division 9 of Part 5

846. Item 68 would repeal Division 9 of Part 5.

847. Division 9 of Part 5 provides a mechanism for the MRT to refer an application that involves an important principle, or issue of general application, to the AAT to determine. As the current MRT caseload would be part of the AAT's caseload as part of the amalgamation, these provisions would be redundant.

Item 69 - Part 6

848. Item 69 would repeal Part 6.

849. Part 6 provides for the establishment and membership of the MRT, the establishment of Registries, and makes provision for officers of the Tribunal.

850. As the MRT will be amalgamated into the AAT, the provision in this Part will be redundant. Equivalent provisions for the establishment of the AAT, registries and provision for officers would be in Parts II and III and section 64 of the AAT Act (Items 27 and 144 of Schedule 1 to the Bill).

Item 70 - Part 7 (heading)

851. Item 70 would repeal the heading 'Review of protection visa decisions' and substitute a heading that refers to the review of Part 7-reviewable decisions.

Item 71 - Before section 410

852. Item 71 would insert new sections 408 and 409.

853. Section 408 contains a simplified outline of Part 7 that sets out in general terms the avenues of merits review under the Migration Act.

854. Section 409 would provide that Part 7 of the Migration Act applies in relation to the review by the Tribunal of Part 7-reviewable decisions, and that the Tribunal's powers in relation to Part 7-reviewable decisions may be exercised in the Migration and Refugee Division only.

Item 72 - section 410 (definition of Deputy Principal Member )

855. Item 72 would repeal the definition of Deputy Principal Member, as this definition would not be required in relation to the amalgamated Tribunal.

Item 73 - section 410

856. Item 73 would insert definitions for 'officer of the Tribunal' and 'Part 7-reviewable decision' in section 410.

857. 'Officer of the Tribunal' would be defined to have the same meaning as in section 3(1) of the AAT Act (Item 9 of Schedule 1 to the Bill), namely the Registrar or a person appointed as an officer under new section 24PA of the AAT Act.

858. 'Part 7 - reviewable decision' refers to section 411 of the Migration Act, which sets out those decisions that are currently reviewable by the RRT. The amendment will substitute references to the RRT with references to Part 7-reviewable decisions. The intention is to preserve a distinction between the AAT exercising its newly-conferred jurisdiction in the Migration and Refugee Division, and the AAT exercising its existing migration jurisdiction. This distinction will ensure that it is clear which decisions the provisions in Part 7 apply to, so that the existing scope of Part 7 is not inadvertently expanded.

Item 74 - Section 410

859. Item 74 would repeal the definition of 'Principal Member' in section 410, as the role of Principal Member will not be continued in the amalgamated Tribunal.

860. This item would also repeal the definition of 'Tribunal' for the purposes of Part 7. The current definition is linked to the RRT. The definition of Tribunal in subsection 5(1) of the Migration Act would apply in the relation to the amalgamated Tribunal.

Item 75 - At the end of section 410

861. Item 75 would insert a note in section 410 about the meaning of 'Tribunal' that cross-refers to the definition of 'Tribunal' in subsection 5(1) of the Migration Act.

Item 76 - Division 2 of Part 7 (heading)

862. Item 76 would repeal a heading that refers to the RRT and replace it with the heading 'Part 7-reviewable decision'.

Item 77 - Section 411 (heading)

863. Item 77 would replace the heading 'Decisions reviewable by the Refugee Review Tribunal' with a heading that refers to Part 7-reviewable decisions. The new heading describes section 411 as providing a definition of Part 7-reviewable decisions.

Item 78 - Section 412 (heading)

864. Item 78 would repeal the heading 'Application for review by the Refugee Review Tribunal' and substitute a heading that refers to Part 7-reviewable decisions instead of the RRT.

Item 79 - Section 413

865. Item 79 would repeal section 413. The provision was inserted to deal with applications on foot when the RRT was created in 1993, and is now redundant.

Item 80 - Section 414 (heading)

866. Item 80 would repeal the heading 'Refugee Review Tribunal must review decisions' and substitute a heading that refers to Part 7-reviewable decisions instead of to the RRT.

Item 81 - Section 415 (heading)

867. Item 81 would repeal the heading 'Powers of the Refugee Review Tribunal' and substitute a heading that refers to Part 7-reviewable decisions instead of to the RRT.

Item 82 - Section 416

868. Item 82 would repeal section 416 and substitute a new section 416.

869. Existing section 416 provides that the RRT, in considering further review applications, is not required to consider information from earlier applications, and may have regard to or take to be correct any previous decision by the RRT or the AAT about or because of that information.

870. New section 416 would preserve the effect of the existing provision but would remove any redundant references to the RRT. The amendment would ensure that earlier decisions made by the RRT may continue to be taken to be correct by the amalgamated Tribunal when considering a later application by the same person. It would also ensure that the amalgamated Tribunal would not be required to consider in any further application, information considered by the former RRT in an earlier application by the same person.

Item 83 - Section 418 (heading)

871. Item 83 would repeal the heading 'Secretary to be notified of application for review by Refugee Review Tribunal' and substitute a heading that refers to Part 7-reviewable decisions rather than to the RRT.

Item 84 - Subsection 418(1)

872. Item 84 would omit a redundant reference to the RRT in subsection 418(1) and substitute a reference to the Tribunal.

Item 85 - Section 419

873. Item 85 would repeal section 419. As with section 413, this section was inserted to deal with applications on foot when the RRT was created in 1993, and is now redundant.

Item 86 - Division 3 of Part 7

874. Item 86 would repeal the heading 'Exercise of Refugee Review Tribunal's powers' and substitute a heading that refers to Part 7-reviewable decisions rather than to the former RRT.

Items 87 - 89 - Subsection 420(1), Subsection 420(2)

875. Items 87 to 89 would repeal subsection 420(1), and make consequential amendments to the section.

876. Subsection 420(1) currently sets out the objectives of the RRT. This subsection would be redundant for the amalgamated Tribunal, whose objectives would instead be set out in new section 2A of the AAT Act. New section 2A of that Act includes all of the matters contained in the objective currently set out in subsection 420(1) of the Migration Act.

877. Item 88 would repeal the numbering '(2)' in section 420, which would be unnecessary as a consequence of the removal of the only other subsection in that section.

878. Item 89 would omit the word 'decision' in section 420 and substitute 'Part 7-reviewable decision'. The purpose of this amendment is to clarify that the principles set out in the section apply to decisions that are reviewed by the amalgamated Tribunal under Part 7. These principles are that the Tribunal is not bound by technicalities, legal forms or rules of evidence, and that the Tribunal shall act according to substantial justice and the merits of the case.

Item 90 - Sections 420A, 421, 422 and 422A

879. Item 90 would repeal sections 420A, 421, 422 and 422A of the Migration Act.

880. These sections would not be required for the amalgamated Tribunal because there are equivalent provisions in the AAT Act that would be applicable.

881. The provisions deal with the power of the Principal Member to give directions, and the constitution and reconstitution of the Tribunal. These issues would be dealt with in new sections 18B, 19A, 19B, 19D and 42 of the AAT Act (Items 27 and 107 of Schedule 1 of the Bill).

Item 91 - Division 4 of Part 7 (heading)

882. Item 91 would repeal the heading 'Division 4-Conduct of review' and substitute a heading that refers to the conduct of review of Part 7-reviewable decisions.

Item 92 - Section 423 (heading)

883. Item 92 would repeal the heading 'Documents to be given to the Refugee Review Tribunal' and substitute a heading that refers to the Tribunal instead of the RRT.

Item 93 - Section 426 (heading)

884. Item 93 would repeal the heading 'Applicant may request Refugee Review Tribunal to call witness' and substitute a heading that refers to the Tribunal instead of the RRT.

Item 94 - Section 427 (heading)

885. Item 94 would repeal the heading 'Powers of the Refugee Review Tribunal etc.' and substitute a heading that refers to the Tribunal instead of the RRT.

Item 95 - Paragraph 427(3)(b)

886. Item 95 would amend paragraph 427(3)(b) to clarify that the power of the Tribunal to summons documents for the purposes of a review under Part 7 also includes the power to summons 'things' referred to in the summons.

Item 96 - Subsection 427(5)

887. Item 96 would repeal subsection 427(5), which currently provides that the oath or affirmation to be taken or made by a person for the purposes of section 427 is an oath or affirmation that the evidence that the person gives will be true.

888. The reason for repealing the subsection is that is not necessary to prescribe the content of an oath or affirmation in legislation. Rather, this is a matter that can be dealt with administratively by the Tribunal.

Item 97 - Section 428

889. Section 428 deals with the power of the Tribunal to take evidence, including the power to authorise a person to take evidence on behalf of the Tribunal. The provision also provides that a person may take evidence inside or outside Australia, and sets out the obligations of a person to make a record of the evidence taken.

890. Item 97 would repeal the current section and replace it with a provision worded in a way that is better aligned with the equivalent provisions in new subsections 40(3)-(5) of the AAT Act (Item 102 of Schedule 1 to the Bill).

891. The new provision would continue to require that a person who takes evidence on behalf of the Tribunal must provide a record of the evidence to the Tribunal, but would no longer expressly require that this be a written record. This would enable the person taking the record to provide to the Tribunal either a written, video or audio record of the evidence. This change would enable the Tribunal to utilise technological developments to ensure that it operates efficiently.

Item 98 - Division 5 of Part 7 (heading)

892. Item 98 would repeal the heading 'Decisions of Refugee Review Tribunal' and substitute a definition that refers to Part 7-reviewable decisions and the Tribunal rather than to the RRT.

Item 99 - Section 430 (heading)

893. Item 99 would repeal the heading 'Refugee Review Tribunal's decision and written statements' and substitute a definition that refers to Part 7-reviewable decisions and the Tribunal rather than to the former RRT.

Item 100 - Section 431

894. Item 100 would repeal section 431 and substitute a new section 431.

895. Section 431(1) requires the RRT to publish decisions of particular interest, subject to subsection 431(2) which provides that the decision must not identify an applicant or his or her relatives or dependants.

896. Subsection 431(1) would not be required because the issue of publication would be dealt with in new section 66B of the AAT Act inserted by Item 147 of Schedule 1.

897. New section 431 would provide that the Tribunal must not publish a statement made under the requirement to prepare a written statement setting out the Tribunal's decision, reasoning and findings (contained in subsection 430(1)) which may identify an applicant or relative or other dependant of an applicant. The purpose of this amendment is to preserve the current effect of the limitation on publication, in order to protect the safety of applicants and their families and dependants.

Item 101 - Division 6 of Part 7

898. Item 101 would repeal Division 6 of Part 7 and substitute a new Division 6.

899. Division 6 of Part 7 establishes certain offences relating to Tribunal proceedings. These comprise failure of a witness to attend or of a person to provide documents as required by a summons, refusal to be sworn or answer questions when appearing before the Tribunal, and contempt of Tribunal.

900. New section 432 would establish the offence of failure to comply with a summons issued under section 427 of the Migration Act. The new section would harmonise the drafting of the existing offence provisions relating to failure of a person to attend or to produce documents-currently contained in section 432 and subsection 433(2)-with the new summons offence in the AAT Act. The amendment would simplify and modernise the language but retain the substance of the existing elements of the offence.

901. New section 433 would establish the offence of refusal to be sworn or answer questions. The new section would replace the offence provision in current section 433. The amendment would simplify and modernise the language but retain the substance of the existing elements of the offence.

902. The amendment would also:

·
repeal the existing penalty for failure to comply with a summons or be sworn and answer questions and substitute a new penalty, and
·
remove the defence of reasonable excuse for the offence.

903. Existing subsection 432(1) and section 433 provide a penalty of imprisonment for 6 months, or both.

904. New subsection 432(1) and section 433 would provide a penalty of imprisonment for 12 months or 60 penalty units, or both. This would be part of a change to create consistent penalty provisions throughout the AAT Act and the provisions of the Migration Act relating to the Tribunal, as well as aligning penalties with those that apply in courts.

905. Existing subsections 432(1A) and 433(1A) provide that the offence provisions do not apply if the person has a reasonable excuse.

906. The defence of reasonable excuse would be removed, consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, which advises against the use of reasonable excuse defences. The rationale for this advice is that such defences are vague and therefore difficult to rely on, because it is unclear what needs to be established. There are also general defences in the Criminal Code (duress, mistake or ignorance of fact, intervening conduct or event, and lawful authority) which a person can rely on in place of the reasonable excuse defence.

907. While the privilege against self-incrimination applies in common law, for the avoidance of doubt, new subsections 432(2) and 433(3) would insert a specific defence of self-incrimination to the offences in subsection 370(1) and section 371. This provides certainty that the privilege would not be abrogated. The defence does not preclude or remove the powers to compel information that is not self-incriminatory from an individual. The defence also does not preclude the individual from having to provide information or produce documents that may incriminate others.

908. New notes to subsections 432(2) and 433(3) would state that a defendant bears an evidential burden in relation to establishing the matters in subsections 370(2) and 371(3) -see subsection 13.3(3) of the Criminal Code Act. Section 13.3 of the Criminal Code provides that in the case of a standard 'evidential burden' defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1). It is considered appropriate to cast the evidential burden on the defendant in these circumstances. The person who is being compelled to provide information or produce a document will be best placed to know whether complying might tend to incriminate the person.

909. It is noted also that legal professional privilege applies in common law and has an equivalent in the Evidence Act. As no express abrogation is applied to this provision, legal professional privilege is intended to apply.

910. Existing section 434 establishes the offence of contempt of Tribunal. It would not be necessary to re-instate a provision to this effect in the Migration Act for the amalgamated Tribunal, because it is not tied to a specific power set out in the Migration Act and its effect would be preserved by new section 63 of the AAT Act (Item 144 of Schedule 1 to the Bill).

Item 102 - Division 7 of Part 7 (heading)

911. Item 102 would repeal the heading 'Miscellaneous' and substitute a heading that refers to Part 7-reviewable decisions instead of the RRT.

Item 103 - Sections 435 and 436

912. Item 103 would repeal sections 435 and 436.

913. Section 435 provides protections and immunities for members, and clarifies the protections and liabilities of persons appearing before the RRT. This section would not be required because equivalent protections in relation to reviews by the amalgamated Tribunal would be provided by section 60 of the AAT Act (at Item 133 of Schedule 1 to the Bill).

914. Section 436 provides for the payment of fees and allowances to persons, other than the applicant, summoned to appear before the Tribunal. This section is not required because such payments in relation to reviews by the amalgamated Tribunal would be provided for by section 67 of the AAT Act (Item 148, Schedule 1 of the Bill).

Item 104 - Section 438 (heading)

915. Item 104 would repeal the heading 'Refugee Review Tribunal's discretion in relation to disclosure of certain information etc.' and substitute a heading that refers to the Tribunal rather than the RRT.

Item 105 - Section 439

916. Item 105 would repeal section 439.

917. Section 439 establishes an offence for the disclosure of confidential information by a person who is or has been a member, acting member, officer or interpreter for the RRT. This section is not required because the disclosure of confidential information is prohibited under the Crimes Act 1914 and the Privacy Act 1988. .

Item 106 - Section 440 (heading)

918. Item 106 would repeal the heading 'Refugee Review Tribunal may restrict publication or disclosure of certain matters' and substitute a heading that refers to the Tribunal instead of the RRT.

Item 107 - Section 441

919. Item 107 would repeal section 441.

920. Section 441 is comprised of two subsections. Subsection 441(1) provides that the Tribunal may sit from time to time as required at such places in Australia as are convenient. This subsection is not required because new section 18C of the AAT Act (Item 27 of Schedule 1 to the Bill) would provide for the Tribunal to sit as required at any place in Australia or an external territory as are convenient.

921. Subsection 441(2) provides that the Tribunal constituted by one member or other members may sit and exercise the powers of the Tribunal even though the Tribunal constituted by another member or members is at the same time sitting and exercising those powers. There is no need for an express provision stating this established principle.

Item 108 - Division 7A of Part 7 (heading)

922. Item 108 would repeal the heading 'Division 7A-Giving and receiving review documents etc.' and substitute a heading that expressly states that the Part relates to Part 7-reviewable decisions.

Item 109 - Section 441E

923. Item 109 would repeal section 441E.

924. Section 441E provides that if the Tribunal is required to give a document to a person, the Tribunal may give a copy of the document, by the same means as the Tribunal could give the document itself.

925. This principle does not need to be expressly stated in the legislation. Copies of documents can clearly be provided in such circumstances.

Items 110 - 112 - Subsection 441F(1), Paragraph 441F(1)(b), Subsection 441F(2)

926. Items 110-112 would make consequential amendments to section 441F, to reflect the repeal of section 420A of the Migration Act due to a similar provision in new section 18B of the AAT Act (as inserted by Item 27 of Schedule 1 to the Bill).

927. Paragraph 441F(1)(b) enables a person to comply with a requirement to give a document or thing to the Tribunal by complying with directions issued by the Principal Member under section 420A. For the amalgamated Tribunal, such directions would be issued pursuant to new section 18B. Item 111 would therefore substitute reference to section 420A with reference to new section 18B of the AAT Act.

928. Subsection 441F(2) provides that directions under section 420A may provide for a person to give a copy of a document rather than the document itself. Item 112 would repeal subsection 441F(2), because it both relates to a repealed provision and is otherwise unnecessary.

929. Item 110 would omit the numbering '(1)' in section 441F as a consequence of the repeal of the only other subsection in that section.

Item 113 - Divisions 8, 9 and 10 of Part 7

930. Item 113 would repeal Divisions 8, 9 and 10 of Part 7.

931. Division 8 provides a mechanism for the RRT to refer an application that involves an important principle, or issue, of general application, to the AAT to determine. As the current RRT caseload would be part of the amalgamated Tribunal's caseload, these provisions will be redundant and should be repealed.

932. Division 9 provides for the establishment and membership of the RRT, and makes provision for the terms and conditions relevant to members.

933. Division 10 provides for the establishment of Registries, and makes provision for officers of the Tribunal.

934. As the RRT would be amalgamated into the AAT, the provisions in these Parts would be redundant. Equivalent provisions are in Parts II and III and section 64 of the AAT Act (as inserted by Items 27 and 144 of Schedule 1 to the Bill).

Item 114 - Part 7A

935. Item 114 would repeal Part 7A of the Migration Act.

936. Part 7A effectively provides that the Principal Member of the RRT and the certain persons together with the Registrar, Deputy Registrars and other officers of the RRT together constitute a statutory agency for the purposes of the Public Service Act.

937. This Part would not be required for the amalgamated Tribunal.

Items 115 - 119 - Subsection 474(4) (table items 17 to 22), Subsection 474(4) (table item 23), Subsection 474(4) (table items 24 to 27), Subsection 474(4) (table item 28), Subsection 474(4) (table items 29 and 30)

938. Items 115-119 would repeal or amend items in the table of decisions set out in subsection 474(4). This table sets out those decisions that are not privative clause decisions but are 'non-privative clause decisions' by operation of subsection 474(6).

939. Item 115 would repeal Items 17 to 22 of the table. These items relate to sections 353A, 354, 355, 355A, 356 and 357 of the Migration Act. They cover variously directions by the Principal Member, constitution and reconstitution of the MRT, exercise of powers of the MRT, and decisions relating to designating a presiding member. These items would not be required because they refer to sections that would be repealed.

940. Item 116 would omit 'offences' in relation to Division 7 of Part 5 and substitute 'Part 5-reviewable decisions: offences'. This amendment would provide a clearer description of which decisions the item relates to.

941. Item 117 would repeal items 24 to 27 of the table. These items relate to Part 6 and sections 421, 422 and 422A of the Migration Act. They cover variously the establishment of the MRT, directions by the Principal Member, and constitution and reconstitution of the RRT. These items would not be required because they refer to provisions that would be repealed.

942. Item 118 would omit 'offences' in relation to Division 6 of Part 7 and substitute 'Part 7-reviewable decisions: offences'. This amendment would provide a clearer description of which decisions the item relates to.

943. Item 119 would repeal items 29 and 30 of the table. These items relate to Divisions 9 and 10 of Part 7 of the Migration Act. These Divisions relate to the establishment and membership of the RRT and the registry and officers of the RRT. These items are not required because they refer to provisions that are being repealed due to the amalgamation.

Item 120 - Paragraph 474(7)(a)

944. Item 120 would remove reference to sections 391 and 454 from paragraph 474(7)(a), and retain reference to section 417 of that Act.

945. Paragraph 474(7)(a) clarifies that certain decisions, including those relating to sections 391 and 454 of the Migration Act, are privative clause decisions.

946. The purpose of this amendment would be to remove reference to sections 391 and 454 as a consequence of the repeal of those sections.

Item 121 - Paragraphs 474(7)(b) and (c)

947. Item 121 would repeal paragraphs 474(7)(b) and (c).

948. The current effect of these paragraphs is that certain decisions about the referral of matters under sections 382 or 444 of the Migration Act from the MRT or RRT to the AAT are privative clause decisions.

949. These paragraphs would be redundant because they refer to sections that would be repealed as part of the amalgamation of the tribunals.

Item 122 - Before section 475

950. Item 122 inserts new section 474A, which provides a definition of 'AAT Act migration decision'.

951. The new definition provides that decisions of an administrative character under a provision of the AAT Act set out in the table contained in section 474A are 'AAT Act migration decisions'.

952. 'AAT Act migration decisions' are included in the definition of 'migration decisions', which is used to establish the application of judicial review provisions under the Migration Act.

953. The purpose of this amendment is to form part of a mechanism that would be used to ensure that existing parameters regarding judicial review are retained. In particular, new section 474A will ensure that certain decisions that would no longer fall within the definition of 'non-privative clause decisions' when they are made under the AAT Act (rather than under the Migration Act) would continue to be covered by the judicial review provision in the Migration Act.

954. The effect of this amendment would be to preserve the effect of existing judicial review provisions in the Migration Act when those decisions are made by, or in relation to, the Migration and Refugee Division of the AAT.

Item 123 - Subsection 476A(1) (note)

955. Item 123 would repeal the note at the end of subsection 476A(1) and substitute a new note.

956. Section 476A provides for the jurisdiction of the Federal Court in relation to migration decisions.

957. The current note at the end of subsection 476A(1) states that only non-privative clause decisions can be taken to the Federal Court under subsection 44(3) of the AAT Act. This note refers to section 483, which would be repealed.

958. The new note would explain that the only decisions that can be taken to the Federal Court under section 44 of the AAT Act, or a referral under section 45 of that Act, are non-privative clause decisions. It would also provide a further explanation about decisions for which an appeal to the Federal Court cannot be made under section 44 of the AAT Act, or a referral under section 45 of that Act.

Item 124 - Subsection 477(3) (paragraphs (b) and (c) of the definition of date of the migration decision )

959. Item 124 would repeal paragraphs 477(3)(b) and (c) of the definition of 'date of the migration decision' and substitute new paragraphs.

960. Existing paragraphs 477(3)(b) and (c) set out the meaning of 'date of the migration decision' in relation to decisions by the MRT and RRT. New paragraphs 477(3)(b) and (c) would provide a definition in relation to decisions made by the AAT in the exercise of its powers under Parts 5 and 7 of the Migration Act.

961. The effect of the amendment would be to ensure that the existing meaning of 'date of the migration decision' applies in relation to decisions by the Migration and Refugee Division of the amalgamated Tribunal.

Item 125 - Section 483

962. Item 125 would repeal section 483.

963. Section 483 provides that section 44 of the AAT Act does not apply to privative clause decisions or purported privative clause decisions.

964. The repeal of section 483 would be required as a consequence of the amendment of new section 43C of the AAT Act (Item 124 of Schedule 1 to the Bill).

Item 126 - Subsection 486D(5)(definition of tribunal decision )

965. Item 126 would omit reference to 'a Tribunal' and substitute reference to 'the Tribunal'.

966. Section 486D provides that a person must not commence judicial review proceedings in relation to a tribunal decision unless the person discloses to the court any previous judicial review proceedings about that decision. Subsection 486D(5) provides a definition of 'tribunal decision' for the purposes of the section. This amendment would enhance the precision of that definition by making reference to the amalgamated Tribunal.

Item 127 - Subsections 500(5) and (5A)

967. Item 127 would repeal subsections 500(5) and (5A).

968. Subsection 500(5) provides a list of factors the President of the AAT must take into account when constituting the Tribunal for matters reviewable under subsection 500(1)(primarily character-related matters).

969. It is unnecessary to retain a mandatory list of factors that must be considered in constituting the Tribunal. It is expected that these or similar factors can be provided elsewhere for transparency and consistency (for example, the AAT currently has Guidelines for Constituting the Tribunal).

970. Further, the repeal of subsection 500(5) would be consistent with proposed amendments to the AAT Act. In particular, Item 27 of Schedule 1 to the Bill would repeal section 23B of the AAT Act, which provides a similar-although not identical-list.

971. Subsection 500(5A) provides that section 23B of the AAT does not apply to a proceeding under subsection 500(1). This subsection would be redundant given the repeal of section 23B of the AAT Act.

Item 128 - Paragraph 500(6)(a) and (b)

972. Item 128 would repeal paragraph 500(6)(a) and (b) and substitute a new paragraph 500(6)(a).

973. Subsection 500(6) ensures that an order for a person's deportation remains in effect, notwithstanding any order that has been made by the Tribunal or a presidential member under section 41 of the AAT Act (which permits the making of stay orders). Paragraph 500(6)(b) is anomalous since the exercise of the power under section 41 of the AAT Act is vested in the Tribunal and not presidential members.

974. New paragraph 500(6)(a) would simplify the existing provisions in paragraphs 500(6)(a) and (b). The new provision would provide the same effect as the existing provisions by reference to orders of the Tribunal, including under section 41 (for the avoidance of doubt), rather than by reference to a specific position within the amalgamated Tribunal.

Item 129 - Subsections 500(6D) and (6E)

975. Item 129 would repeal subsections 500(6D) and (6E) and substitute new subsection 500(6D).

976. Subsection 500(6D) provides that section 37 of the AAT Act does not apply in relation to character-related decisions about a person in the migration zone.

977. Subsection 500(6E) requires the Registrar, District Registrar or Deputy Registrar to notify the Minister of certain applications for review of character-related decisions, and excludes the operation of subsection 29(11) of the AAT Act in respect of those applications.

978. New subsection 500 (6D) would remove reference to 'District Registrar or Deputy Registrar', as the Registrar can delegate this function in practice. It would remove the requirement for the period and manner of notification to be prescribed in Regulations, as typically in practice the AAT notifies the Secretary of a migration application within a day after applications are received. Removing the requirement for certain matters to be prescribed would not prevent Regulations being made if this were considered appropriate.

Items 130 - 132 - Paragraph 500(6F)(c), After subsection 500(6F)(c), Paragraph 500(6K)(d)

979. Items 130 to 132 make provision for greater flexibility for the Tribunal about the number of copies of documents that the Minister must lodge with the Tribunal in relation to a review of certain character-related decisions.

980. Item 130 would amend subsection 500(6F)(c) to allow the Minister to provide one copy of documents to the AAT in relation to reviews of certain character-related decisions rather than two copies.

981. Item 131 would insert new subsection 500(6FA) to enable the Tribunal to direct the Minister to lodge additional copies of a document. The Minister would be required to comply with the direction.

982. Item 132 would amend subsection 500(6K)(d) to omit 'a copy' and substitute 'a copy, or the number of copies specified in the notice'.

983. The effect of this amendment would be to enable Tribunals to specify how many copies of documents the Minister must provide in relation to a notice to produce served in connection with the review of certain character-related decisions. This amendment would be consistent with proposed changes to section 37 of the AAT Act (Items 74 to 87).

Part 2 - Multiple Amendments

Division 1 - References to MRT-reviewable decisions

Amendments to Migration Act 1958

Item 133 - Amendments of listed provisions

984. Item 133 would omit 'an MRT-reviewable decision' in the provisions listed in the table, except for Item 8, and substitute 'a Part 5-reviewable decision'.

985. The purpose of these amendments would be to ensure that existing provisions relating to the review of decisions by the MRT continue to apply to decisions reviewable under Part 5 of the Migration Act by the Migration and Refugee Division of the AAT.

986. This item would also omit reference to 'primary decision' in subsection 374(3A) at Item 8 and substitute 'Part 5-reviewable decision'. This amendment would ensure that decisions that are the subject of review under Part 5 of the Migration Act are consistently referred to as a 'Part 5-reviewable decision'.

987. These amendments would not change the effect of the provisions other than to take account of the amalgamated Tribunal.

Division 2 - References to officers of the Tribunal

Item 134 - Amendments of listed provisions

988. Item 134 would omit references to 'member, the Registrar, a Deputy Registrar or another officer' of the Tribunal in the provisions listed in the table and substitute references to 'member or an officer of the Tribunal'.

989. The purpose of this item is to simplify the provisions and to achieve consistency with the provisions of the AAT Act. These amendments would not change the effect of the provisions other than to take account of the amalgamated Tribunal and the simplification of terms in the AAT Act.

Division 3 - References to RRT-reviewable decisions

Item 135 - Amendments of listed provisions

990. Item 135 would omit 'an RRT-reviewable decision' in the provisions listed in the table and substitute 'a Part 7-reviewable decision'.

991. The purpose of these amendments would be to ensure that existing provisions relating to the review of decisions by the RRT continue to apply to decisions reviewable under Part 7 of the Migration Act by the Migration and Refugee Division of the AAT.

992. These amendments would not change the effect of the provisions other than to take account of the amalgamated Tribunal.

Part 3 - Contingent amendments

Division 1 - Interaction with the Migration Amendment (Protection and Other Measures) Act 2014

Amendments to Migration Act 1958

Item 136 - Section 337 (definition of decision on a review )

993. Item 136 would replace the reference to 'an MRT-reviewable decision' and substitute 'a Part 5-reviewable decision'.

994. The purpose of this amendment would be to ensure the new exhaustive definition of decision on a review in Part 1 of Schedule 4 of the Protection and Other Measures Act 2014 would apply to decisions of the amalgamated Tribunal in the exercise of its powers under Part 5 of the Migration Act.

Item 137 - Section 337 (paragraphs (a) to (d) of the definition of decision on a review )

995. Item 137 would replace the references to 'MRT-reviewable decision' and substitute 'Part 5-reviewable decision'.

996. The purpose of these amendments would be to ensure the new exhaustive definition of decision on a review in Part 1 of Schedule 4 of the Protection and Other Measures Bill would apply to decisions of the amalgamated Tribunal in the exercise of its powers under Part 5 of the Migration Act.

Item 138 - Subsection 353B(1)

997. Item 138 would repeal subsection 353B(1) inserted by Part 1 of Schedule 4 of the Protection and Other Measures Bill and substitute new subsection 353B(1).

998. Subsection 353B(1) provides that the Principal Member may, in writing, direct that a decision (the guidance decision) of the Tribunal specified in the direction is to be complied with by the Tribunal in reaching a decision on a review of an MRT-reviewable decision of a kind specified in the direction. The reference to Principal Member would be redundant in the amalgamated Tribunal.

999. New subsection 353B(1) would provide that the power to direct that a decision is a guidance decision may be exercised by the President of the Tribunal or the head of the Migration and Refugee Division of the Tribunal.

1000. New subsection 353B(1) would also replace the words 'an MRT-reviewable decision' with 'a Part 5-reviewable decision' to ensure section 353B continued to apply to decisions of the amalgamated Tribunal in the exercise of its powers under Part 5 of the Migration Act.

1001. New subsection 353B(1) would also add the words 'or of the former Migration Review Tribunal' to ensure that a guidance decision would be a decision of the former MRT.

Item 139 - Section 410 (definition of decision on a review )

1002. Item 139 would replace the reference to 'an RRT-reviewable decision' and substitute 'a Part 7-reviewable decision'.

1003. The purpose of this amendment would be to ensure the new exhaustive definition of decision on a review in Part 1 of Schedule 4 of the Protection and Other Measures Bill would apply to decisions of the amalgamated Tribunal in the exercise of its powers under Part 7 of the Migration Act.

Item 140 - Section 410 (paragraphs (a) to (d) of the definition of decision on a review )

1004. Item 140 would omit 'RRT-reviewable decision' and substitute 'Part 7-reviewable decision'.

1005. The purpose of these amendments would be to ensure the new exhaustive definition of decision on a review in Part 1 of Schedule 4 of the Protection and Other Measures Bill would apply to decisions of the amalgamated Tribunal made in the exercise of its powers under Part 7 of the Migration Act.

Item 141 - Subsection 420B(1)

1006. Item 141 would repeal subsection 420B(1) inserted by Part 1 of Schedule 4 of the Protection and Other Measures Bill and substitute new subsection 420B(1).

1007. Subsection 420B(1) provides that the Principal Member may, in writing, direct that a decision (the guidance decision) of the Tribunal specified in the direction is to be complied with by the Tribunal in reaching a decision on a review of an RRT-reviewable decision of a kind specified in the direction. The reference to Principal Member would be redundant in the amalgamated Tribunal.

1008. New subsection 420B(1) would provide that the power to direct that a decision is a guidance decision may be exercised by the President of the Tribunal or the head of the Migration and Refugee Division of the Tribunal.

1009. The new subsection 420B(1) would also replace the words 'an RRT-reviewable decision' with 'a Part 7-reviewable decision' to ensure section 420B continued to apply to decisions of the amalgamated Tribunal in the exercise of its power under Part 7 of the Migration Act.

1010. New subsection 420B(1) would also add the words 'or of the former Refugee Review Tribunal' to ensure that a guidance decision could be a decision of the former RRT.

Item 142 - Section 430D (heading)

1011. Item 142 would repeal the heading of section 430D which refers to 'Refugee Review Tribunal's oral decision and oral statement' amended by Part 1 of Schedule 4 of the Protection and Other Measures Act and substitute the words 'Tribunal's decision given orally'.

1012. The purpose of this amendment is to simplify the heading and to replace the reference to the former RRT with a reference to the amalgamated Tribunal.

Item 143 - Subsection 477(3) (paragraphs (b) and (c) of the definition of date of the migration decision )

1013. Item 143 would repeal paragraphs 477(3)(b) and (c) inserted by Part 1 of Schedule 4 of the Protection and Other Measures Bill and substitute new paragraphs 477(3)(b) and (c).

1014. New paragraph 477(3)(b) would replace the reference to 'the Migration Review Tribunal' in paragraph (b) with 'the Administrative Appeals Tribunal in the exercise of its powers under Part 5'. New paragraph 477(3)(c) would replace the reference to 'the Refugee Review Tribunal' with 'the Administrative Appeals Tribunal in the exercise of its powers under Part 7'.

1015. The purpose of these amendments would be to ensure the definition of 'date of the migration decision' in subsection 477(3) continued to apply to decisions of the amalgamated Tribunal in the exercise of its powers under Parts 5 and 7 of the Migration Act.

Migration Amendment (Protection and Other Measures) Act 2014

Item 144 - Item 7 of Schedule 4 (heading)

1016. Item 144 would repeal the heading of Item 7 of Schedule 4 of the Migration Amendment (Protection and Other Measures) Act 2014, which is expressed to insert section 353B into the Migration Act 'after section 353A'.

1017. As this Act repeals section 353A (see Item 45 of this schedule), this amendment would ensure that section 353B is effectively inserted into the Migration Act after section 353.

Item 145 - Item 22 of Schedule 4 (heading)

1018. Item 145 would repeal the heading of Item 22 of Schedule 4 of the Migration Amendment (Protection and Other Measures) Act 2014, which is expressed to insert section 420B into the Migration Act 'after section 420A'.

1019. As this Bill would repeal section 420A (see Item 90 of this schedule), this amendment would ensure that section 420B would be inserted into the Migration Act after section 420.

Division 2 - Interaction with the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014

1020. The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (the Migration and Maritime Powers Act) would establish a new review body, the Immigration Assessment Authority (IAA) to review decisions relating to persons who are subject to the fast track assessment process. The IAA would be an independent office of the Tribunal.

1021. Some of the items described in this Division would only commence if the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill is enacted.

1022. Other items described in this Division would only commence if the Migration and Maritime Powers Act, or a specific item within that Act, does not commence before the commencement of this Schedule.

Administrative Appeals Tribunal Act 1975

Items 146 - 147 - Subparagraph 24N(2)(a)(ii), At the end of paragraph 24N(2)(a)

1023. Items 146 to 147 would amend subsection 24N(2) of the AAT Act to provide that IAA reviewers together with the Registrar and staff of the AAT-including persons made available to the IAA under subsection 473JE(2) of the Migration Act-constitute a statutory agency.

1024. Item 146 would omit the word 'and' from subparagraph 24N(2)(a)(ii), as a consequence of the insertion of new subparagraph 24N(2)(a)(iii).

1025. Item 147 would insert new subparagraph 24N(2)(a)(iii). The effect of the new paragraph would be to provide that the Senior Reviewer and the other Reviewers of the IAA, and any staff of the Tribunal made available to assist the Authority, together with the Registrar and the staff mentioned in section 24N together constitute a statutory agency.

1026. This item would only commence if the Migration and Maritime Powers Act commences.

Migration Act 1958

Item 148 - Section 99

1027. Item 148 would insert a reference to the IAA into section 99 of the Migration Act.

1028. An effect of section 99 as amended by Item 13 of this schedule would be that that information that a person gives or causes to be given to the Tribunal performing a function under the Migration Act is taken to be an answer to a question in the person's application form for the purposes of specified sections.

1029. The purpose of this item would be to ensure that section 99 applies to information given to the IAA.

1030. This item would only commence if the Migration and Maritime Powers Act commences.

Item 149 - Section 103

1031. Item 149 would insert reference to the IAA into section 103 of the Migration Act.

1032. An effect of section 103 as amended by Item 14 of this schedule would be to provide that a person must not give, or cause to be given, a bogus document to the Tribunal performing a function or purpose under the Migration Act.

1033. The purpose of this item is to ensure that section 103 applies to persons providing documents to the IAA.

1034. This item would only commence if the Migration and Maritime Powers Act commences.

Item 150 - Subsection 261AKD(2) (paragraph (c) of the definition of permitted provision )

1035. Item 150 would insert a reference to the IAA into section 261AKD of the Migration Act.

1036. Section 261AKD as amended by Item 17 of this Schedule would provide that it is an offence to cause a video recording to be provided to another person if it is not a permitted provision of the recording. A permitted provision includes provision of a recording for the purpose of a proceeding before the Tribunal.

1037. The purpose of this item is to ensure that provision of a recording for the purpose of a proceeding before the IAA is a permitted purpose under section 261AKD.

1038. This item would only commence if the Migration and Maritime Powers Act commences.

Item 151 - Subsection 271(4) (at the end of the definition of migration proceedings )

1039. Item 151 would insert a reference to proceedings in the IAA for the review of a fast-track decision reviewable decision into section 271(4) of the Migration Act.

1040. Subsection 271(4) defines 'migration proceedings' for the purposes of section 271.

1041. The purpose of this amendment would be to ensure that proceedings before the IAA are included in the definition of migration proceedings.

1042. This item would only commence if the Migration and Maritime Powers Act commences.

Item 152 - Paragraph 336E(2)(f)

1043. Item 152 would insert a reference to the IAA into paragraph 336E(2)(f) of the Migration Act.

1044. Section 336E provides that it is an offence to disclose identifying information where the disclosure is not a permitted disclosure. Paragraph 336E(2)(f) as amended by Item 24 of this Schedule would provide that a permitted disclosure includes a disclosure for the purpose of a proceeding before the Tribunal.

1045. The purpose of this amendment would be to clarify that the disclosure of identifying information for the purpose of a proceeding before the IAA is permitted.

Item 153 - At the end of section 336M

1046. Item 153 would amend the simplified outline at section 336M that would be inserted by Item 26 of this Schedule to provide an explanation regarding decisions that are reviewable by the IAA.

1047. This item would only commence if the Migration and Maritime Powers Act commences.

Item 154 - At the end of section 408

1048. Item 154 would amend the simplified outline at section 408 that would be inserted by Item 71 of this Schedule to provide an explanation regarding decisions that are reviewable by the IAA.

1049. This item would only commence if the Migration and Maritime Powers Act commences.

Items 155-158 - Section 414A (heading), Subsection 414A(1), Subsection 414A(2)

1050. Items 155-158 would make contingent amendments if Item 14, Schedule 7 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (the Migration and Maritime Powers Act) did not come into effect before this Schedule.

1051. In that event, Item 155 would repeal the heading 'Period within which Tribunal must review decision on protection visas' and substitute a heading that refers to Part 7-reviewable decisions instead of to the RRT.

1052. Items 156, 157 and 158 would omit references in subsections 414A(1) and (2) to the RRT and substitute references to the Tribunal and to Part 7-reviewable decisions.

1053. These items would not come into effect if the Migration and Maritime Powers Act comes into effect before this schedule, because Item 14 of Schedule 7 of that Act would repeal section 414A.

Items 159-170 - Section 440A

1054. Items 159-170 would omit redundant references to 'Principal Member', 'RRT, or 'RRT-reviewable decisions' in relation to section 440A.

1055. Items 159 and 160 would repeal the headings 'Principal Member's obligation to report to Minister' and 'substitute the heading 'Reports about review of Part 7-reviewable decisions'.

1056. Items 161-170 would make the following amendments to section 440A:

·
omit references to 'Principal Member' within headings, provisions or notes, and substitute references to the President of the Tribunal
·
substitute references to 'RRT' with 'Tribunal', and
·
substitute references to 'RRT-reviewable decision' with 'Part 7-reviewable decision'.

1057. These items would not come into effect if the Migration and Maritime Powers Act comes into effect before this schedule, because Item 15 of Schedule 7, Part 1 of that Act would repeal section 440A.

Item 171 - Subsection 440A(10)(definition of decision period )

1058. Item 171 would omit 'an RRT-reviewable decision' from the definition of decision period in subsection 440A(10) and substitute 'a Part 7-reviewable decision'.

1059. This amendment would not come into effect if the Migration and Maritime Powers Act comes into effect before this schedule, because Item 15 of Schedule 7, Part 1 of that Act would repeal section 440A.

Items 172-173 - Section 473BA

1060. Items 172 and 173 would amend the simplified outline that would be inserted by Item 21 of Schedule 4, Part 1 of the Migration and Maritime Powers Bill relating to IAA.

1061. Paragraph 5 of the simplified outline in Item 21 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill would explain that decisions to refuse to grant protection visas to fast track applicants are generally not reviewable by any other Tribunal under the Migration Act, although some decisions are reviewable by the Administrative Appeals Tribunal.

1062. Item 172 would omit 'not reviewable by any other Tribunal' from paragraph 5 of the outline and substitute 'not otherwise reviewable'.

1063. The purpose of this amendment would be to amend the outline relating to the IAA to reflect the amalgamation of the existing tribunals.

1064. Paragraph 6 of the outline explains that the IAA consists of, amongst others, the Principal Member of the RRT, and broadly outlines the responsibilities of the Principal Member.

1065. Item 173 would omit this paragraph and substitute a paragraph that reflects the composition of the IAA following the amalgamation of the existing tribunals.

1066. These items would only commence if the Migration and Maritime Powers Act commences.

Items 174-176 - Section 473BB, At the end of section 473BB, Section 473BB (definition of Principal Member )

1067. Items 174 to 176 would make amendments relating to defined terms in relation to the IAA.

1068. Item 21, Schedule 4, Part 1 of the Migration and Maritime Powers Act would insert new section 473BB into the Migration Act, setting out a number of definitions in relation to the IAA provisions.

1069. Item 174 would define 'Division head' for the purposes of the Part to mean the Division head of the Migration and Refugee Division, and 'President' to mean the President of the Tribunal.

1070. Item 175 would insert a note that 'Tribunal' means the AAT, and provide a cross-reference to the definition of 'Tribunal' in subsection 5(1) of the Migration Act.

1071. Item 176 would repeal the redundant definition of 'Principal Member' in section 473BB, to reflect the amalgamation of the tribunals.

1072. These items would only commence if the Migration and Maritime Powers Act commences.

Item 177 - Subsection 473FC(1)

1073. Item 177 would omit redundant references to the Principal Member of the RRT in section 473FC(1) and substitute reference to the President of the Tribunal.

1074. This amendment would be required because Item 21 of the Migration and Maritime Powers Act would insert new section 473FC(1) into the Migration Act, which provides that the Principal Member of the RRT may direct that a guidance decision is to be complied with by the IAA.

1075. The effect of this item would be that the power to issue guidance decisions is conferred on the President of the Tribunal. This power would also be conferred on the Division head of the Migration and Refugee Division, due to new section 473JB(1) in item 181.

Items 178-180 - Subsection 473JA(1), Paragraph 473JA(2)(a), Subsection 473JA(3)

1076. In the event that new section 473JA is inserted into the Migration Act, these items would replace redundant references to the RRT and the Principal Member and insert references to the Migration and Refugee Division of the amalgamated Tribunal and its Division head, and to the President.

1077. Item 21, Schedule 4, Part 1 of the Migration and Maritime Powers Act would insert section 473JA in the Migration Act. Subsection 473JA(1) would provide that the IAA is established within the RRT, and subsection 473JA(2) would establish that the IAA consists of the Principal Member, Senior Reviewers and other Reviewers.

1078. The purpose of these amendments is to remove redundant references and substitute references to the Tribunal, the President and the Division head.

Item 181 - Section 473JB(1)

1079. Item 181 would repeal subsection 473JB(1) and substitute a new subsection 473JB(1).

1080. Item 21, Schedule 4, Part 1 of the Migration and Maritime Powers Act would insert new subsection 473JB(1) in the Migration Act that would provide that the Principal Member is responsible for the overall operation and administration of the IAA and for that purpose may issue directions and determine policies.

1081. Item 181 would insert new subsection 473JB(1), which would provide that the President and the Division head of the Migration and Refugee Division are responsible for the overall operation and administration of the IAA, and may issue directions and determine policies for that purpose.

1082. Item 181 would also insert new subsection 473JB(1A), which would provide that any power or function that is conferred on the President in this Part may be exercised or performed by either the President or the Division head of the Migration and Refugee Division. For example, the Division head may exercise the President's power to issue practice directions as to the conduct of the operations of the IAA under section 473FB.

1083. The item would provide a specific example that the Division head may exercise the President's power to issue guidance decisions under section 473FC.

Item 182 - Subsection 473JB(2)

1084. Item 182 would omit a redundant reference to 'Principal Member' in subsection 473JB(2) and substitute 'President or Division head'.

1085. The effect of this amendment would be that the Senior Reviewer is to manage the IAA subject to the directions of, and in accordance with policies determined by, the President or Division head.

Item 183 - Subsection 473JE(2)

1086. Item 183 would replace a reference to the Principal Member of the RRT with a reference to the Registrar of the Tribunal, and a reference to the RRT with a reference to the Tribunal, in the event that new subsection 473JE(2) is inserted into the Migration Act.

1087. Item 21, Schedule 4, Part 1 of the Migration and Maritime Powers Act 2014 would insert section 473JE(2), which would provide that the Principal Member must make available officers of the RRT to assist the IAA in the performance of its administrative functions.

1088. The purpose of this amendment is to remove redundant references to the Principal RRT Member and the RRT, and impose the requirement instead on Registrar of the Tribunal.

Item 184 - Subsection 473JF (heading)

1089. Item 184 would replace a heading that refers to the Principal Member in the event that new section 473JF is inserted into the Migration Act by the Migration and Maritime Powers Act 2014.

1090. This item would remove the heading 'Delegation by Principal Member' and substitute the heading 'Delegation by Registrar'.

1091. The purpose of this amendment is to remove redundant reference to the Principal Member and impose the requirement instead on the Registrar of the Tribunal.

Item 185 - Subsection 486D(5) (paragraph (a) of the definition of tribunal decision )

1092. Item 185 would omit reference to 'a Tribunal' in paragraph (a) of the definition of 'tribunal decision' in the event that current subsection 486D(5) is amended by the Migration and Maritime Powers Act, and substitute reference to 'the Tribunal'.

1093. Current section 486D provides that a person must not commence judicial review proceedings in relation to a tribunal decision unless the person discloses to the court any previous judicial review proceedings about that decision. Subsection 486D(5) provides a definition of 'tribunal decision' for the purposes of the section. Paragraph 486D(5)(a) as amended by the Migration and Maritime Powers Act refers to a decision by a tribunal under Parts 5 or 7 or a section 500 of the Migration Act.

1094. This amendment would enhance the precision of that definition by referring directly to the amalgamated Tribunal.

Division 3 - Interaction with the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014: multiple amendments

Amendments to

Migration Act 1958

Item 186 - Amendment of listed provisions

1095. Item 186 would remove references to 'Principal Member' in the provisions listed in the table, and substitute references to the President of the AAT.

1096. The provisions listed in the table relate to the establishment, organisation and powers of the head of the IAA. The powers conferred on the President would also be taken to be conferred on the Division head of the IAA, due to the effect of new subsection 473JB, inserted by Item 181 of this Schedule. Therefore the effect of the amendment would be that the powers and obligations that would have otherwise vested in the Principal Member in relation to the IAA would vest instead in the President of the Tribunal and the Division head of the Migration and Refugee Division of the Tribunal.

1097. This item would only commence if the Migration and Maritime Powers Act 2014 commences, as it would amend new provisions inserted by that Act.

Division 4 - Interaction with the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014: transitional provisions

Item 187 -Transitional-performance of functions of Immigration Assessment Authority

1098. Item 187 would provide a transitional provision that applies if the IAA is established before the commencement of Parts 1 and 2 of the Schedule.

1099. The effect of this item would be that the IAA would continue in existence within the Migration and Review Division of the AAT, and that anything done by or on behalf of the IAA by the Principal Member of the former RRT before commencement is taken to have been done by or on behalf of the President of the Tribunal.

Item 188 - Transitional-report under section 440A of the Migration Act 1958

1100. Item 188 would provide that section 440A of the Migration Act, as in force immediately prior to 1 July 2015, applies to the final reporting period as if the references in the section to the Principal member of the former RRT were references to the President of the amalgamated Tribunal. Division 5 - Interaction with the Migration Amendment (Character and General Visa Cancellation) Act 2014

Migration Act 1958

Item 189 - Subsection 133A(1)

1101. Item 189 would omit 'the Migration Review Tribunal, the Refugee Review Tribunal, the Administrative Appeals Tribunal' and substitute 'the Administrative Appeals Tribunal or the former Migration Review Tribunal or former Refugee Review Tribunal' in subsection 133A(1), inserted by Item 12 of Schedule 2 of the Character and General Visa Cancellation Bill.

1102. Section 133A outlines the Minister's personal powers to cancel visas on section 109 grounds.

1103. The purpose of this item is to ensure that section 133A applies to decisions of the amalgamated Tribunal, as well as decisions of the former MRT and RRT.

Item 190 - Paragraph 133A(5)(c)

1104. Item 190 would omit 'the Migration Review Tribunal, the Refugee Review Tribunal, the Administrative Appeals Tribunal' and substitute 'the Administrative Appeals Tribunal or the former Migration Review Tribunal or former Refugee Review Tribunal' in paragraph 133A(5)(c), which would be inserted by Schedule 2 of the Character and General Visa Cancellation Bill.

1105. Section 133A outlines the Minister's personal powers to cancel visas on section 109 grounds.

1106. The purpose of this item would be to preserve the effect of subsection 133A(5) for decisions of the amalgamated Tribunal, and decisions of the former MRT and former RRT.

Item 191 - Subsection 133C(1)

1107. Item 191 would omit 'the Migration Review Tribunal, the Refugee Review Tribunal, the Administrative Appeals Tribunal' and substitute 'the Administrative Appeals Tribunal or the former Migration Review Tribunal or former Refugee Review Tribunal' in subsection 133C(1), inserted by Schedule 2 of the Character and General Visa Cancellation Bill.

1108. Section 133C outlines the Minister's personal powers to cancel visas on section 116 grounds.

1109. The purpose of this item would be to ensure that section 133C applies to decisions of the amalgamated Tribunal, as well as decisions of the former MRT and former RRT.

Item 192 - Subsection 133C(5)(c)

1110. Item 192 would omit 'the Migration Review Tribunal, the Refugee Review Tribunal, the Administrative Appeals Tribunal' and substitute 'the Administrative Appeals Tribunal or the former Migration Review Tribunal or former Refugee Review Tribunal' in paragraph 133C(5)(c), inserted by Schedule 2 of the Character and General Visa Cancellation Bill.

1111. Section 133C outlines the Minister's personal powers to cancel visas on section 116 grounds.

1112. The purpose of these amendments would be to preserve the effect of subsection 133C(5) for decisions of the amalgamated Tribunal, and decisions of the former MRT and former RRT.

Division 6 - Interaction with the Migration Amendment (Regaining Control Over Australia's Protection Obligations) Act 2014

Migration Amendment (Regaining Control Over Australia's Protection Obligations) Act 2014

Item 193 - Item 21 of Schedule 1 (heading)

1113. Item 193 would repeal the heading 'Transitional-RRT and AAT review' and substitute 'Transitional-review of protection visa decisions', in the event that Item 21 of the Migration Amendment (Regaining Control Over Australia's Protection Obligation) Act 2014 commences.

1114. This item would remove reference to the RRT.

Item 194 - Subitem 21(2) of Schedule 1

1115. Item 194 would omit a redundant reference to 'an RRT-reviewable decision' and substitute reference to decisions that are 'reviewable under Part 7 of that Act'.


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