House of Representatives

Explanatory Memorandum

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

SCHEDULE 9 - HEALTH AND AGED CARE

OUTLINE

429. This Schedule contains consequential amendments to the following Acts in the Health and Aged Care portfolio:

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Aged Care Quality and Safety Commission Act 2018

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Biosecurity Act 2015

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Food Standards Australia New Zealand Act 1991

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Health and Other Services (Compensation) Act 1995

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Health Insurance Act 1973

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Industrial Chemicals Act 2019

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Narcotic Drugs Act 1967

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National Health Act 1953

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Therapeutic Goods Act 1989

AMENDMENTS

General terminology changes

430. A number of items in this Schedule make simple terminology changes, such as repealing outdated references to the Administrative Appeals Tribunal, the AAT and the Administrative Appeals Tribunal Act 1975, and replacing them with references to the Administrative Review Tribunal, the ART and the Administrative Review Tribunal Act 2024. These amendments ensure that the Tribunal has jurisdiction to review decisions that are reviewable by the AAT, and that the relevant provisions continue to operate in substantively the same way in the new Tribunal.

Aged Care Quality and Safety Commission Act 2018

Item 1: Paragraph 74GI(1)(g)

Terminology changes

431. Section 74GI of the Aged Care Quality and Safety Commission Act 2018 prescribes that the Commissioner must establish and maintain a register, in any form that the Commissioner considers appropriate, that includes the information prescribed in subsection 74GI(1), in relation to each individual against whom a banning order has been made at any time. Paragraph 74GI(1)(g) stipulates that if an application has been made to the Tribunal for review of a reconsideration decision that relates to a decision to either make a banning order or not revoke a banning order, and that application has not been "finally determined", the Commissioner must include a statement to that effect in the register. Clause 107 of the ART Bill provides when an application is taken to have been "finally determined".

432. This item replicates that provision, with amendments to terminology. See explanation of general terminology changes above.

Items 2 and 3: Subsection 74L(3) (note) and subsection 74M(4) (note)

Terminology changes and updating legislative references

433. These items update legislative references, replacing references to section 27A of the AAT Act in the notes to subsections 74L(3) and 74M(4) of the Aged Care Quality and Safety Commission Act 2018 with references to the equivalent provision in the ART Bill, clause 266.

434. Consistent with section 27A of the AAT Act, clause 266 of the ART Bill requires a decision-maker to notify persons who are affected by the decision of the making of the decision, and their right to have the decision reviewed. These amendments are technical in nature, and ensure the notes to subsections 74L(3) and 74M(4) remain accurate.

435. These items also amend terminology. See explanation of general terminology changes above.

Items 4 and 5: Section 74N (heading) and section 74N

Terminology changes

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

Biosecurity Act 2015

Items 6, 7, 8, 9, 10, 11 and 12: Subparagraph 61(1)(i)(iii), subsection 72(5) (note 2), paragraph 73(e), subdivision D of Division 2 of Part 3 of Chapter 2 (heading), section 75 (heading), paragraph 75(1)(a) and subsection 76(1)

Terminology changes

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

Item 13: Subsection 76(2)

Updating legislative references

438. This item updates a legislative reference to paragraph 29(1)(d) of the AAT Act in subsection 76(2) of the Biosecurity Act 2015 with a reference to the equivalent provision in the ART Bill, subclause 18(1). This amendment is technical in nature, and ensures subsection 76(2) continues to operate in substantively the same way in relation to the Tribunal.

439. Subclauses 18(1) and (2) of the ART Bill provide that the timeframe for applying to the Tribunal for review will be set in the rules, subject to the ability to apply for an extension of time. Subclause 18(3) provides that rules made under subclause (1) cannot prescribe a timeframe for applying that is less than 28 days from the date of the decision. Subclause 18(4) provides that rules made under subclause (1) may provide different periods for different types of application.

440. The note to subclause 18(1) provides that the legislation under which a reviewable decision is made may specify a different period for applying for review of that type of decision.

441. A key objective of the ART Bill is to enable procedural efficiencies and process improvements by harmonising processes and procedures across the Tribunal's caseload wherever possible. However, some amendments in this schedule retain special provisions that are fundamental to the operation of Tribunal review for health and aged care matters.

442. To ensure the appropriate management of biosecurity risks, subsection 76(2) of the Biosecurity Act 2015 provides that an application for review of a decision of the Director of Human Biosecurity directing an individual to comply with an isolation or traveller movement measure must be made to the Tribunal within 7 business days after the day the decision is made. This ensures the continued ability of the Commonwealth to balance the protection of public health and the management of the risk of contagion posed by an individual with their right to procedural fairness, noting that these decisions relate to matters that are time-critical.

Items 14, 15 and 16: Paragraph 76(3)(b), paragraph 76(4)(b) and subsection 76(5)

Terminology changes

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

Item 17: Subsection 77(1)

Updating legislative references

444. This item updates legislative references, replacing references to section 28 and subsections 37(1) to (1D) of the AAT Act in subsection 77(1) of the Biosecurity Act 2015 to instead refer to the equivalent provisions in the ART Bill, clauses 268 and 23. These amendments are technical in nature and ensure subsection 77(1) of the Biosecurity Act 2015 continues to operate in substantively the same way in relation to the Tribunal.

445. Subsection 77(1) specifies that the provisions in the ART Bill relating to obtaining reasons for a decision do not apply in respect of a direction by the Director of Human Biosecurity to comply with an isolation or traveller movement measure. The notice requirements in sections 72 and 77 of the Biosecurity Act 2015 are more onerous on decision-makers and more favourable to the subject of the biosecurity measure or control order decision than those under the ART Bill, appropriately reflecting the impact of these powers and the need for review mechanisms to ensure they are exercised responsibly.

446. Section 77 of the Biosecurity Act 2015 places an obligation on the Director of Human Biosecurity to provide both the Tribunal and the individual with reasons for the decision and every other document that is in the Director's possession or under their control, and is relevant to the review of the decision by the Tribunal. These requirements override the more general provisions of the ART Bill mentioned in the amended subsection.

Item 18: Subsection 77(2)

Updating legislative references

447. This item replaces a legislative reference to subsection 29AC(1) of the AAT Act in subsection 77(2) of the Biosecurity Act 2015 to instead refer to the equivalent provision in the ART Bill, clause 21.

448. Consistent with subsection 29AC(1) of the AAT Act, clause 21 of the ART Bill requires the Tribunal to notify certain people when an application for review of a decision is made. This amendment is technical in nature and ensures subsection 77(2) of the Biosecurity Act 2015 continues to operate in substantively the same way in relation to the Tribunal.

Items 19 and 20: Subsections 77(2), (3) and (4) and subsections 78(1), (2), (3) and (4)

Terminology changes

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

Item 21: Subsection 78(4)

Updating legislative references

450. This item replaces a legislative reference to section 43 of the AAT Act in subsection 78(4) of the Biosecurity Act 2015 to instead refer to the equivalent provision in the ART Bill, clause 105.

451. Consistent with section 43 of the AAT Act, clause 105 of the ART Bill stipulates the type of actions the Tribunal can take with respect to a reviewable decision, including affirming the decision (which means to confirm the decision was the correct or preferable decision). This amendment is technical in nature, and ensures subsection 78(4) continues to operate in substantively the same way in relation to the Tribunal.

Items 22 and 23: Subsection 78(5) and section 79 (heading)

Terminology changes

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

Item 24: Section 79

Terminology changes and updating legislative references

453. This item replaces a legislative reference to subsections 41(2), (3), (4), (5) and (6) of the AAT Act in section 79 of the Biosecurity Act 2015 to instead refer to the equivalent provisions in the ART Bill, subclauses 32(2), (3), (4), (5), (6), (7), (8) and (9).

454. Section 79 prevents the Tribunal from making an order to stay a decision, despite the exceptions in clause 32 of the ART Bill. This prevents an individual from being released from isolation or travelling on an international passenger airline or vessel, while they pose a risk of contagion to the community. This amendment is technical in nature, and ensures section 79 continues to operate in substantively the same way in relation to the Tribunal.

455. This item also amends terminology. See explanation of general terminology changes above.

Items 25, 26, 27, 28, 29, 30 and 31: Section 469, section 573, paragraph 576(6)(c), subsection 576(7), section 578 (heading), subsection 578(1) and subsection 578(1) (note 1)

Terminology changes

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

Item 32: Subsection 578(3)

Updating legislative references

457. This item replaces a legislative reference to subsection 27(1) of the AAT Act in subsection 578(3) of the Biosecurity Act 2015 to instead refer to the equivalent provision in the ART Bill, clause 17.

458. Consistent with subsection 27(1) of the AAT Act, clause 17 of the ART Bill stipulates that a person whose interests are affected by a reviewable decision may apply to the Tribunal for review of the decision. Subsection 578(3) of the Biosecurity Act 2015 stipulates that, contrary to clause 17, an application for review of a reviewable decision outlined in section 578 can only be made by the 'relevant person' (as defined in section 574 of the Biosecurity Act 2015).

459. This amendment is technical in nature and ensures subsection 78(4) continues to operate in substantively the same way in relation to the Tribunal.

Food Standards Australia New Zealand Act 1991

Items 33 and 34: Subsection 109(8) and after subsection 109(8)

Terminology changes and interaction with the guidance and appeals panel

460. Subsection 109(8) of the Food Standards Australia New Zealand Act 1991 allows the Authority to pause the consideration of an application for standards or variations while an application is being considered by the Tribunal. Subsection 109(8) prescribes that this pause in the consideration period is the period beginning on the day on which the application for review is made to the Tribunal and ending on the day on which it is finalised.

461. This item replicates that provision, with amendments to terminology. See explanation of general terminology changes above. As well as, amendments required as a consequence of establishing the Tribunal's guidance and appeals panel.

462. Part 5 of the ART Bill establishes a guidance and appeals panel within the Tribunal. The guidance and appeals panel will have the power to review and determine Tribunal decisions referred to it by the President that may contain a material error of fact or law, or that raise an issue of significance to administrative decision-making. A party may apply to the President under clause 123 of the ART Bill to refer a decision of the Tribunal made under clause 105 to the guidance and appeals panel. If the President refers the decision to the guidance and appeals panel, it will conduct a full merits review of the decision de novo.

463. Item 34 inserts new subsection 109(8A) which provides for a pause in the consideration period if a party applies to have decision referred to the guidance and appeals panel. This pause includes the period beginning on the day on which the application is made to have the decision referred, and ending on the day on which the President either refers the decision or refuses the application.

464. Of relevance to the operation of subsection 109(8) of the Foods Standards Australia New Zealand Act 1991, subclause 130(2) of the ART Bill provides that a person who applied to refer the Tribunal decision to the guidance and appeals panel is taken to have applied to the Tribunal for review of either the original decision, or the original decision as varied or substituted by the Tribunal as the case may be. Accordingly, if the President refers the decision to the guidance and appeals panel under clause 128 of the ART Bill, this would be taken to be a new application to the Tribunal for the purposes of subsection 109(8) of the Food Standards Australia New Zealand Act 1991 and the consideration period would be paused for the period beginning on the day on which the application for review is taken to be made and ending on the day on which it is finalised by the guidance and appeals panel.

Items 35, 36 and 37: Subsection 143(1), subsection 143(2) and paragraph 144(1)(c)

Terminology changes

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

466. Subsection 143(1) of the Food Standards Australia New Zealand Act 1991 (as amended) provides for applications to be made to the Tribunal for review of certain decisions made under the Act. The provision makes clear that applications for review are subject to the ART Bill. Applications for review of decisions listed in paragraph (1)(a), in relation to applications for development or review of a standard, may only be made by the person who applied for development or review. This is despite clause 17 of the ART Bill, which provides that a person whose interests are affected by a decision may apply to the Tribunal for review of that decision. Applications for review of other decisions listed in subsection 143(1) can be made by a person whose interests are affected.

Item 38: Paragraph 144(1)(d)

Updating legislative references

467. This item updates legislative references to subsection 28(4) and section 28 of the AAT Act in paragraph 144(d) of the Food Standards Australia New Zealand Act 1991 to instead refer to the equivalent provision in the ART Bill, clause 268.

468. Section 28 of the AAT Act provides that, subject to exceptions, people whose interests are affected by a reviewable decision may seek a statement of reasons for the decision. Paragraph 144(1)(d) of the Food Standards Australia New Zealand Act 1991 has been updated to refer to the equivalent provision in the ART Bill, clause 268. Consistent with section 28 of the AAT Act, under clause 268 ART Bill, a person whose interests are affected by a decision may make a written request to the decision-maker to give the person a statement of reasons for the decision.

469. Subsection 28(4) of the AAT Act provides that a person is not entitled to request a statement of reasons if such a statement has already been given. Under the equivalent provision in the ART Bill (subsection 269(7)), the decision-maker may refuse the request if the statement of reasons has already been provided for the decision. Although the provision amended by this item does not specifically refer to this equivalent provision as this is unnecessary, a person's right to request reasons is still subject to this qualification.

470. This amendment is technical in nature and ensures that paragraph 144(1)(d) of the Food Standards Australia and New Zealand Act 1991 continues to operate in substantively the same way in relation to the Tribunal.

Item 39: Paragraphs 152(1)(q) and (r)

Terminology changes

471. This item amends terminology. See explanation of general terminology changes above.

Health and Other Services (Compensation) Act 1995

Item 40: Subsection 18(10)

Terminology changes

472. This item amends terminology. See explanation of general terminology changes above.

Item 41: Subsection 18(10) (note)

Updating legislative references

473. This item updates legislative references, replacing references to sections 27A and 27B of the AAT Act in the note to subsection 18(10) of the Health and Other Services (Compensation) Act 1995 to instead refer to the equivalent provisions in the ART Bill, clauses 266 and 267.

474. Consistent with section 27A of the AAT Act, clause 266 of the ART Bill requires a decision-maker to notify persons who are affected by the decision of the making of the decision, and their right to have the decision reviewed.

475. Section 27B of the AAT Act allows the Attorney-General to make a legislative instrument determining a Code of Practice for facilitating notices of decisions and review rights. Clause 267 of the ART Bill requires instead that, in giving notice of a decision, the decision-maker must have regard to matters prescribed by rules. The rules will be used to set out best practice considerations for giving notice, including the content of those notices. It is anticipated that these rules will be based on the Code of Practice for Notification of Reviewable Decisions and Rights of Review made under subsection 27B(1) of the AAT Act.

476. These amendments are technical in nature and ensures the note to subsection 18(10) of the Health and Other Services (Compensation) Act 1995 remains accurate.

Items 42 and 43: Section 23D (heading) and subsection 23D(1)

Terminology changes

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

Item 44: Subsection 23D(1) (note)

Updating legislative references

478. This item updates legislative references, replacing references to sections 27A and 27B of the AAT Act in the note to subsection 23D(1) of the Health and Other Services (Compensation) Act 1995 to instead refer to the equivalent provisions in the ART Bill, clauses 266 and 267.

479. Consistent with section 27A of the AAT Act, clause 266 of the ART Bill requires a decision-maker to notify persons who are affected by the decision of the making of the decision, and their right to have the decision reviewed.

480. Section 27B of the AAT Act allows the Attorney-General to make a legislative instrument determining a Code of Practice for facilitating notices of decisions and review rights. Clause 267 of the ART Bill requires instead that, in giving notice of a decision, the decision-maker must have regard to matters prescribed by rules. The rules will be used to set out best practice considerations for giving notice, including the content of those notices. It is anticipated that these rules will be based on the Code of Practice for Notification of Reviewable Decisions and Rights of Review made under subsection 27B(1) of the AAT Act.

481. These amendments are technical in nature and ensure the note to subsection 23D(1) of the Health and Other Services (Compensation) Act 1995 remains accurate.

Item 45: Subsection 23D(2)

Updating legislative references

482. This item replaces a legislative reference to subsection 43(6) of the AAT Act in subsection 23D(2) of the Health and Other Services (Compensation) Act 1995 to instead refer to the equivalent provisions in the ART Bill, subclauses 108(4) and (5).

483. Subsection 23D(2) specifies that the day on which the AAT hands down its decision on an appeal under subsection 23D(1), is the date of effect for that decision. Normally, under subsection 43(6) of the AAT Act and the equivalent subclauses 108(4) and (5) of the ART Bill, such a decision would take effect from the date on which the original decision was made unless the Tribunal ordered otherwise.

484. Without this exception, it would be likely the time limits imposed by the Health and Other Services (Compensation) Act 1995 on the Chief Executive Medicare would have expired, and the Commonwealth would have to pay to the compensable person the whole of any advance payment.

485. This amendment is technical in nature, and ensures subsection 23D(2) of the Health and Other Services (Compensation) Act 1995 continues to operate in substantively the same way in relation to the Tribunal.

Health Insurance Act 1973

Items 46 and 47: Section 3AAB (heading) and section 3AAB

Terminology changes

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

Item 48: Subsection 19ABD(5) (note)

Updating legislative references

487. This item updates a legislative reference, replacing the reference to section 27A of the AAT Act in the note to subsection 19ABD(5) of the Health Insurance Act 1973 to instead refer to the equivalent provision in the ART Bill, clause 266.

488. Consistent with section 27A of the AAT Act, clause 266 of the ART Bill requires a decision-maker to notify persons who are affected by the decision of the making of the decision, and their right to have the decision reviewed. This amendment is technical in nature and ensures the note to subsection 19ABD(5) of the Health Insurance Act 1973 remains accurate.

Items 49 and 50: Subsection 19ABD(6) (heading), subsections 19ABD(6) and 19AC(6)

Terminology changes

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

Item 51: Subsection 19CA(1) (definition of decision )

Updating definition

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

Items 52 and 53: Paragraph 19CA(5)(b) and subsection 19CA(8)

Terminology changes

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

Items 54, 55 and 56: Subsection 20AB(4) (note), subsection 20AC(4) (note) and subsection 20AD(4) (note)

Updating legislative references

492. These items update legislative references, replacing the reference to section 27A of the AAT Act in the notes to subsections 20AB(4), 20AC(4) and 20AD(4) of the Health Insurance Act 1973 to instead refer to the equivalent provision in the ART Bill, clause 266.

493. Consistent with section 27A of the AAT Act, clause 266 of the ART Bill requires a decision-maker to notify persons who are affected by the decision of the making of the decision, and their right to have the decision reviewed. These amendments are technical in nature and ensure the notes to subsections 20AB(4), 20AC(4) and 20AD(4) of the Health Insurance Act 1973 remain accurate.

Item 57: Subsection 20AD(5)

Terminology changes

494. This item amends terminology. See explanation of general terminology changes above.

Item 58: Subsection 20AD(6) (definition of decision )

Updating definition

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

Items 59, 60, 61, 62, 63, 64, 65 and 66: Subsections 21C(2), 21C(4), 22B(2) and 22B(4), paragraphs 23DC(10)(d), 23DC(11)(b), 23DF(11)(d) and 23DF(12)(b), subsections 23DL(9), 23DN(7), 23DO(4) and 23DO(5)

Terminology changes

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

Item 67: Subsection 23DO(6) (definition of decision )

Updating definition

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

Item 68: Section 23DZD

Terminology changes

498. This item amends terminology. See explanation of general terminology changes above.

Item 69: Subsection 23DZE(1)

Terminology changes and updating legislative references

499. This item updates legislative references, replacing references to subsection 28(4) and section 28 of the AAT Act in subsection 23DZE(1) of the Health Insurance Act 1973 to instead refer to the equivalent provisions in the ART Bill, subclause 269(7) and clause 268 respectively.

500. Section 28 of the AAT Act provides that, subject to exceptions, people whose interests are affected by the reviewable decision may seek a statement of reasons for the decision. Subsection 23DZE(1) has been updated to refer to the equivalent provisions in the ART Bill, clause 268 and subclause 269(7).

501. These amendments are technical in nature and ensure that subsection 23DZE(1) continues to operate in substantively the same way in relation to the Tribunal, so that a decision-maker must notify relevant persons that they may request a statement of reasons under the ART Bill. In accordance with subsection 269(7) of the ART Bill, a decision-maker may refuse the request if the person has already been given a statement of reasons for the decision.

502. This item also amends terminology. See explanation of general terminology changes above.

Items 70, 71, 72, 73, 74, 75, 76, 77, 78, 79 and 80: Section 23DZZE (heading), subsection 23DZZE(1), section 23DZZZD (heading), subsections 23DZZZD(1) and 124Q(2), section 124R (heading), section 124R, subsections 124S(1), 124T(3), 124ZL(4) (note), paragraphs 124ZM(1)(c) and 124ZM(2)(b)

Terminology changes

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

Items 81 and 82: Subsection 124ZM(2)

Variation of original decision after application is made for ART review

504. Under section 124ZL of the Health Insurance Act 1973, an original decision can be varied or substituted for a new decision by the persons listed in subsection 124ZL(3), even if an application has been made to the Tribunal for review of that decision. If a decision that is the subject of an application to the Tribunal for review is varied or substituted, subsection 124ZM(2) stipulates that the Secretary of the Department must give written notice of this outcome to the Tribunal.

505. Item 81 makes a minor amendment to require the Secretary to provide this written notice to the Tribunal, rather than the Registrar of the Tribunal. Item 80 amends subsection 124ZM(2) to clarify that if an original decision that is before the Tribunal for review is varied or substituted, the application to the Tribunal is taken to be an application for review of the decision as so varied or substituted.

506. These items also amend terminology. See explanation of general terminology changes above.

Items 83, 84 and 85: Section 124ZN (heading), section 124ZN and subsection 129AAJ(7)

Terminology changes

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

Item 86: Subsection 129AAJ(9)

Updating legislative references

508. This item updates a legislative reference, replacing the reference to paragraph 29(1)(d) of the AAT Act in subsection 129AAJ(9) of the Health Insurance Act 1973 to instead refer to the equivalent provision in the ART Bill, subclause 18(1).

509. Subsection 129AAJ(9) provides that, despite paragraph 29(1)(d) of the AAT Act, an application to the AAT must be made within 28 days after the garnishee notice is given. This provision is intended to make it clear that where a garnishee notice is given in relation to a decision to claim an amount as a debt, the time period for seeking review of a reconsidered decision in the AAT commences from the date the garnishee notice was given, not the date the person received notice of a decision to claim an amount as a debt under subsection 129ACA(1).

510. Paragraph 29(1)(d) of the AAT Act deals with the prescribed time for making applications to the Tribunal. These matters are dealt with in clause 18 of the ART Bill.

511. This amendment is technical in nature and ensures that subsection 129AAJ of the Health Insurance Act 1973 continue to operate in substantively the same way in relation to the Tribunal.

Item 87: Subsection 129ACB(7)

Terminology changes

512. This item amends terminology. See explanation of general terminology changes above.

Item 88: Subsection 129ACB(9)

Updating legislative references

513. This item updates a legislative reference, replacing reference to paragraph 29(1)(d) of the AAT Act in subsection 129ACB(9) of the Health Insurance Act 1973 to instead refer to the equivalent provisions in the ART Bill, subclause 18(1).

514. Subsection 129ACB(9) provides that, despite paragraph 29(1)(d) of the AAT Act, that an application to the AAT must be made within 28 days after the garnishee notice is given. This provision is intended to make it clear that where a garnishee notice is given in relation to a decision to claim an amount as a debt, the time period for seeking review of a reconsidered decision in the AAT commences from the date the garnishee notice was given, not the date the person received notice of a decision to claim an amount as a debt under subsection 129ACA(1).

515. Paragraph 29(1)(d) of the AAT Act deals with the prescribed time for making applications to the Tribunal. These matters are dealt with in clause 18 of the ART Bill.

516. This amendment is technical in nature and ensures subsection 129ACB(9) of the Health Insurance Act 1973 continues to operate in substantively the same way in relation to the Tribunal.

Item 89: Subsection 129AEC(2)

Terminology changes

517. This item amends terminology. See explanation of general terminology changes above.

Item 90: Subsection 129AEC(4)

Updating legislative references

518. This item updates a legislative reference, replacing the reference to paragraph 29(1)(d) of the AAT Act in subsection 129AEC(4) of the Health Insurance Act 1973 to instead refer to the equivalent provision in the ART Bill, subclause 18(1).

519. Subsection 129AEC(4) provides that, despite paragraph 29(1)(d) of the AAT Act, an application to the AAT must be made within 28 days after the garnishee notice is given. This provision is intended to make it clear that where a garnishee notice is given in relation to the debt to which the administrative penalty relates, the time period for seeking review of a reconsidered decision in the AAT commences from the date the garnishee notice was given, not the date the person received notice of the assessment of the person's liability to pay an administrative penalty under 129AEC(1).

520. Paragraph 29(1)(d) of the AAT Act deals with the prescribed time for making applications to the Tribunal. These matters are dealt with in clause 18 of the ART Bill.

521. This amendment is technical in nature and ensures subsection 129AEC(4) of the Health Insurance Act 1973 continues to operate in substantively the same way in relation to the Tribunal.

Item 91: Subsection 129AEG(13)

Terminology changes

522. This item amends terminology. See explanation of general terminology changes above.

Industrial Chemicals Act 2019

Items 92, 93 and 94: Section 9 (definition of AAT ), section 9 and section 165

Terminology changes

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

Item 95: Subsection 166(8) (note)

Updating legislative references

524. This item updates a legislative reference, replacing the reference to section 27A of the AAT Act in the note to subsection 166(8) of the Industrial Chemicals Act 2019 to instead refer to the equivalent provision in the ART Bill, clause 266.

525. Consistent with section 27A of the AAT Act, clause 266 of the ART Bill requires a decision-maker to notify persons who are affected by the decision of the making of the decision, and their right to have the decision reviewed. This amendment is technical in nature and ensures the note to subsection 166(8) of the Industrial Chemicals Act 2019 remains accurate.

Item 96: Section 166(9)

Terminology changes

526. This item amends terminology. See explanation of general terminology changes above.

Narcotic Drugs Act 1967

Items 97, 98, 99 and 100: Subsection 4(1) (paragraph (b) of the definition of issuing officer ), subsection 4(1) (paragraph (c) of the definition of issuing officer ), subsection 13J(4) (heading) and subsection 13J(4)

Updating definitions and terminology changes

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

528. Item 97 amends the definition of issuing officer in subsection 4(1) of the Narcotic Drugs Act 1967 to reflect the new definition of member set out in clause 4 of the ART Bill. Paragraph (c) of the definition of issuing officer refers to a 'non-presidential member' of the AAT. Under the AAT Act, a 'non-presidential member' means a member other than a presidential member and includes senior members and members. The ART Bill does not include definitions of 'presidential members' or 'non-presidential members' however, the equivalent offices to 'non-presidential members' are 'senior members' and 'general members'. This amendment is technical in nature and ensures the definition of issuing officer in subsection 4(1) remains accurate.

Items 101, 102, 103 and 104: Paragraph 15J(1)(c), subsection 15J(2), section 15L (heading) and subsection 15L(1)

Terminology changes

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

Item 105: Subsection 15L(2)

Removing pinpoint references

530. This item removes the references to subsection 27(2) and subsection 30(1A) of the AAT Act to reflect modern drafting practices. This amendment is technical in nature and ensures subsection 15L(2) of the Narcotic Drugs Act 1967 continues to operate in substantively the same way in relation to the Tribunal.

Items 106 and 107: Section 15M (heading) and subsection 15M(1)

Terminology changes

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

Item 108: Subsection 15M(2)

Terminology changes and updating legislative references

532. This item updates legislative references, replacing references to subsections 35(2), (3) and (4) of the AAT Act in subsection 15M of the Narcotic Drugs Act 1967 to instead refer to the equivalent provisions in the ART Bill, subclauses 69(3), 70(1) and (2).

533. Consistent with subsection 35(2) of the AAT Act, subclause 69(3) of the ART Bill empowers the Tribunal to order a private hearing and give directions in relation to persons who may be present at the hearing. Subsections 35(3) and (4) of the AAT Act allow the Tribunal to restrict publication or disclosure of information. This is prescribed in subclauses 70(1) and (2) of the ART Bill.

534. These amendments are technical in nature and ensure subsection 15M(2) of the Narcotic Drugs Act 1967 continues to operate in substantively the same way in relation to the Tribunal.

535. This item also amends terminology. See explanation of general terminology changes above.

Items 109 and 110: Subsections 15M(3) and 15N(1)

Terminology changes

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

Item 111: Subsection 15N(2)

Updating legislative references

537. This item updates legislative references, replacing references to subsections 28(1) and 28(4) of the AAT Act in subsection 15N(2) of the Narcotic Drugs Act 1967 with a reference to the equivalent provision of the ART Bill, clause 268.

538. Section 28 of the AAT Act provides that, subject to exceptions, people whose interests are affected by the reviewable decision may seek a statement of reasons for the decision. Subsection 15N(2) of the Narcotic Drugs Act 1967 has been updated to refer to the equivalent provision in the ART Bill, clause 268. Consistent with section 28 of the AAT Act, under clause 268 ART Bill, a person whose interests are affected by a decision may make a written request to the decision-maker to give the person a statement of reasons for the decision.

539. Subsection 28(4) of the AAT Act provides that a person is not entitled to request a statement of reasons if such a statement has already been given. Under the equivalent provision in the ART Bill, the decision-maker may refuse the request if a statement of reasons has already been provided for the decision. Although the provision amended by this item does not specifically refer to this equivalent provision as this is unnecessary, a person's right to request reasons is still subject to this qualification.

540. This amendment is technical in nature and ensures that subsection 15N(2) of the Narcotic Drugs Act 1967 continues to operate in substantively the same way in relation to the Tribunal.

Item 112: Subsection 15N(3)

Updating legislative references

541. This item updates legislative references, replacing the reference to subsection 28(1) of the AAT Act with a reference to the equivalent provisions of the ART Bill, clause 268. This amendment is technical in nature and ensures that subsection 15N(3) of the Narcotic Drugs Act 1967 continues to operate in substantively the same way in relation to the Tribunal.

542. This item also amends terminology. See explanation of general terminology changes above.

National Health Act 1953

Item 113: Subsection 12(4)

Terminology changes

543. This item amends terminology. See explanation of general terminology changes above.

Item 114: Subparagraph 14(4)(c)(ii)

Period for making applications once received notice and terminology changes

544. This item amends subparagraph 14(4)(c)(ii) of the National Health Act 1953 by removing the reference to a 28 day time period to apply to the AAT for review of a decision.

545. Subparagraph 14(4)(c)(ii) of the National Health Act 1953 provides for the Chief Executive Medicare to notify persons of their right to apply to the AAT for review. It also states the notice must specify that the application to the AAT must be made within 28 days after receiving the notice.

546. There is no provision in the National Health Act 1953 that specifies a 28 day timeframe for an application to be made to the AAT, so the requirement to include this in the notice has been removed. Instead, clause 18 of the ART Bill, which provides that the general timeframe for making an application for review to the ART will be prescribed by the rules but must not be shorter than 28 days from the date of decision, will apply.

547. This item also amends terminology. See explanation of general terminology changes above.

Item 115: Subsection 14(5)

Terminology changes

548. This item amends terminology. See explanation of general terminology changes above.

Item 116: Subparagraph 15(4)(c)(ii)

Period for making applications once received notice and terminology changes

549. This item amends subparagraph 15(4)(c)(ii) of the National Health Act 1953 by removing the reference to a 28 day time period to apply to the AAT for review of a decision.

550. Subparagraph 15(4)(c)(ii) of the National Health Act 1953 provides for the Chief Executive Medicare to notify persons of their right to apply to the AAT for review. It also states the notice must specify that the application to the AAT must be made within 28 days after receiving the notice.

551. There is no provision in the National Health Act 1953 that specifies a 28 day timeframe for an application to be made to the AAT, so the requirement to include this in the notice has been removed. Instead, clause 18 of the ART Bill, which provides that the general timeframe for making an application for review to the ART will be prescribed by the rules but must not be shorter than 28 days from the date of decision, will apply.

552. This item also amends terminology. See explanation of general terminology changes above.

Item 117: Subsection 15(5)

Terminology changes

553. This item amends terminology. See explanation of general terminology changes above.

Items 118, 119 and 120: Subsection 84AAB(4) (note), subsection 84AAC(4) (note) and subsection 84AAD(4) (note)

Updating legislative references

554. These items update legislative references, replacing references to section 27A of the AAT Act in the notes to subsections 84AAB(4), 84AAC(4) and 84AAD(4) of the National Health Act 1953 to instead refer to the equivalent provision in the ART Bill, clause 266.

555. Consistent with section 27A of the AAT Act, clause 266 of the ART Bill requires a decision-maker to notify persons who are affected by the decision of the making of the decision, and their right to have the decision reviewed. These amendments are technical in nature, and ensure the notes to subsections 84AAB(4), 84AAC(4), and 84AAD(4) of the National Health Act 1953 remain accurate.

Item 121: Subsection 84AAD(5) (definition of decision )

Updating definition

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

Items 122, 123 and 124: Subsection 84AAF(4) (note), subsection 84AAG(4) (note) and subsection 84AAH(4) (note)

Updating legislative references

557. These items update legislative references, replacing references to section 27A of the AAT Act in the notes to subsections 84AAF(4), 84AAG(4) and 84AAH(4) of the National Health Act 1953 to instead refer to the equivalent provision in the ART Bill, clause 266.

558. Consistent with section 27A of the AAT Act, clause 266 of the ART Bill requires a decision-maker to notify persons who are affected by the decision of the making of the decision, and their right to have the decision reviewed. These amendments are technical in nature, and ensure the notes to subsections 84AAF(4), 84AAG(4) and 84AAH(4) of the National Health Act 1953 remain accurate.

Item 125: Subsection 84AAH(5) (definition of decision )

Updating definition

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

Items 126, 127 and 128: Subsection 84AAJ(4) (note), subsection 84AAK(4) (note) and subsection 84AAL(4) (note)

Updating legislative references

560. These items update legislative references, replacing references to section 27A of the AAT Act in the notes to subsections 84AAJ(4), 84AAK(4) and 84AAL(4) of the National Health Act 1953 to instead refer to the equivalent provision in the ART Bill, clause 266.

561. Consistent with section 27A of the AAT Act, clause 266 of the ART Bill requires a decision-maker to notify persons who are affected by the decision of the making of the decision, and their right to have the decision reviewed. These amendments are technical in nature, and ensure the notes to subsections 84AAJ(4), 84AAK(4) and 84AAL(4) of the National Health Act 1953 remain accurate.

Item 129: Subsection 84AAL(5) (definition of decision )

Updating definition

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

Items 130, 131, 132, 133, 134, 135: Subsection 84H(4) and subsection 90A(7), subsection 90A(8), paragraph 90B(3)(b), subparagraph 90B(3)(b)(i), paragraph 90B(3)(c) and subparagraph 90B(3)(c)(i)

Terminology changes

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

Item 136: After subsection 90B(3)

Interaction with the guidance and appeals panel

564. This item inserts new subsection 90B(3A) which provides the time period for a request to be made to the Minister under subsection 90B(1), in circumstances where the pharmacist makes an application under clause 123 of the ART Bill for the President of the Tribunal to refer a decision on review of the Secretary's decision to the guidance and appeals panel for review.

565. Subsection 90B(3A) provides that, if the President refuses the application for a referral of the decision, the pharmacist may make a request to the Minister within 30 days of the day on which the pharmacist is notified of the refusal under clause 129 of the ART Bill.

Items 137 and 138: Subsection 90C(1), subsection 90C(2) and subsection 99ABD(8)

Terminology changes

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

Item 139: Subsection 99ABD(10)

Updating legislative references

567. This item updates a legislative reference, replacing the reference to paragraph 29(1)(d) of the AAT Act in subsection 99ABD(10) of the National Health Act 1953 to instead refer to the equivalent provision in the ART Bill, subclause 18(1).

568. Subsection 99ABD(10) provides that despite paragraph 29(1)(d) of the AAT Act, if a garnishee notice is given under subsection 99ABJ(2) in relation to the debt to which the reconsidered decision relates, then an application to the AAT for review of the reconsidered decision must be made within the period of 28 days after the day the garnishee notice is given. This provision is intended to make it clear that where a garnishee notice is given in relation to a decision to claim an amount as a debt, the time period for seeking review of a reconsidered decision in the AAT commences from the date the garnishee notice was given, not the date the person received notice of a decision to claim an amount as a debt under subsection 99ABC(1).

569. Paragraph 29(1)(d) of the AAT Act stipulates the prescribed time for making applications to the Tribunal. These matters are prescribed in clause 18 of the ART Bill.

570. This amendment is technical in nature, and ensures subsection 99ABD(10) of the National Health Act 1953 continues to operate in substantively the same way in relation to the Tribunal.

Item 140: Subsection 99ABG(4)

Terminology changes

571. This item amends terminology. See explanation of general terminology changes above.

Item 141: Subsection 99ABG(6)

Updating legislative references

572. This item updates a legislative reference, replacing the reference to paragraph 29(1)(d) of the AAT Act in subsection 99ABG(6) of the National Health Act 1953 to instead refer to the equivalent provision in the ART Bill, subclause 18(1).

573. Paragraph 29(1)(d) of the AAT Act stipulates the prescribed time for making applications to the Tribunal. These matters are prescribed in clause 18 of the ART Bill.

574. This amendment is technical in nature and is needed to ensure these provisions continue to operate in substantively the same way in relation to the Tribunal.

Items 142 and 143: Subsection 99ABJ(14) and part VIIA (heading)

Terminology changes

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

Item 144: Section 105AA (definition of decision )

Updating definition

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

Items 145, 146, 147 and 148: Section 105AA (definition of Tribunal ), subsection 105AB(7) (note), subsection 105AC(1) and paragraph 105AD(3)(d)

Terminology changes and updating definition

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

578. Item 143 updates the definition of Tribunal so that it refers to the ART instead of the AAT.

Item 149: Paragraph 105AD(3)(e)

Updating legislative references

579. This item removes the legislative reference to subsection 28(4) of the AAT Act in paragraph 105AD(3)(e) of the National Health Act 1953 and replaces the reference to section 28 of the AAT Act to instead refer to the equivalent provision in the ART Bill, clause 268.

580. Section 28 of the AAT Act provides that, subject to exceptions, people whose interests are affected by the reviewable decision may seek a statement of reasons for the decision. Paragraph 105AD(3)(e) of the National Health Act 1953 has been updated to refer to the equivalent provision in the ART Bill, clause 268. Consistent with section 28 of the AAT Act, under clause 268 ART Bill, a person whose interests are affected by a decision may make a written request to the decision-maker to give the person a statement of reasons for the decision.

581. Subsection 28(4) of the AAT Act provides that a person is not entitled to request a statement of reasons if such a statement has already been given. Under the equivalent provision in the ART Bill, the decision-maker may refuse the request if a statement of reasons has already been provided for the decision. Although the provision amended by this item does not specifically refer to this equivalent provision as this is unnecessary, a person's right to request reasons is still subject to this qualification.

582. This amendment is technical in nature and is needed to ensure this provision continues to operate in substantively the same way in relation to the Tribunal.

Item 150: Subsection 105AE(2)

Terminology changes

583. This item amends terminology. See explanation of general terminology changes above.

Therapeutic Goods Act 1989

Items 151 and 152: Subsection 6B(1) and paragraph 6B(2)(a)

Terminology changes

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

Item 153: Subsection 6B(3)

Terminology changes

585. This item replaces the reference to 'enactment' in subsection 6B(3) of the Therapeutic Goods Act 1989 to instead refer to 'Act' to reflect modern drafting practices. This item also amends terminology. See explanation of general terminology changes above.

Item 154: Subsection 44A(5)

Terminology changes

586. This item amends terminology. See explanation of general terminology changes above.

Item 155: Subsection 60(1) (definition of decision )

Updating definition

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

Item 156: Subsection 60(5)

Updating legislative references

588. This item updates a legislative reference, replacing the reference to subsection 28(4) of the AAT Act in subsection 60(5) of the Therapeutic Goods Act 1989 to instead refer to the equivalent provision in the ART Bill, clause 268.

589. Section 28 of the AAT Act provides that, subject to exceptions, people whose interests are affected by the reviewable decision may seek a statement of reasons for the decision. Subsection 60(5) of the Therapeutic Goods Act 1989 has been updated to refer to the equivalent provision in the ART Bill, clause 268. Consistent with section 28 of the AAT Act, under clause 268 ART Bill, a person whose interests are affected by a decision may make a written request to the decision-maker to give the person a statement of reasons for the decision

590. Subsection 28(4) of the AAT Act provides that a person is not entitled to request a statement of reasons if such a statement has already been given. Under the equivalent provision in the ART Bill, the decision-maker may refuse the request if a statement of reasons has already been provided for the decision. Although the provision amended by this item does not specifically refer to this equivalent provision as this is unnecessary, a person's right to request reasons is still subject to this qualification.

591. This amendment is technical in nature and is needed to ensure this provision continues to operate in substantively the same way in relation to the Tribunal.

Items 157, 158 and 159: Paragraph 60(6)(b), subsection 60(8) and section 60A

Terminology changes

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