Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)SCHEDULE 16 - ADMINISTRATIVE REVIEW TRIBUNAL ACT 2024
OUTLINE
869. This Schedule contains consequential amendments to the Administrative Review Tribunal Act 2024. In particular, the schedule repeals references to preventative detention orders in the ART Bill, consequential to the amendments in items 6-9 of Schedule 15, thus leaving decisions with respect to the validity of PDO decisions entirely within the purview of the courts.
AMENDMENTS
Item 1: Section 4 (paragraph (e) of the definition of agency head)
870. This item repeals paragraph (e) of the definition of agency head. Paragraph (e) provides that in relation to a preventative detention decision, 'agency head' means the AFP Commissioner. This amendment is consequential to the amendments in item 9 of Schedule 15 which repeal subsections 105.51(5) to (9) of the Criminal Code.
Item 2: Section 4 (paragraph (d) of the definition of intelligence and security decision)
871. This item repeals paragraph (d) of the definition of intelligence and security decision, with the effect of removing preventative detention decisions from that definition. This is consequential to the amendments in item 9 of Schedule 15 which repeal subsections 105.51(5) to (9) of the Criminal Code.
Item 3: Section 4 (definition of preventative detention decision)
872. This item repeals the definition of preventative detention decision. This is consequential to the amendments outlined in item 9 of Schedule 15 which repeal subsections 105.51(5) to (9) of the Criminal Code.
Item 4: Subsection 135(2) (table item 3)
873. This item repeals table item 3 of subsection 135(2), which sets out the person taken to be decision-maker for preventative detention decisions. This is consequential to the amendments in item 9 of Schedule 15 which repeal subsections 105.51(5) to (9) of the Criminal Code.
Item 5: Subsection 137(2) (table item 3)
874. This item repeals table item 3 of subsection 137(2), which sets out relevant bodies for preventative detention decisions. This is consequential to the amendments in item 9 of Schedule 15 which repeal subsections 105.51(5) to (9) of the Criminal Code.
Item 6: Subsection 138(1)
875. This item repeals subsection 138(1) and substitutes the text to clarify that section 138 applies in relation to an intelligence and security decision, other than an exempt security record decision. The effect of this amendment is to remove the reference to preventative detention order decisions from the list of intelligence and security decisions in relation to which section 138 does not apply. This is consequential to the amendment in item 2, which removes preventative detention decisions from the definition of intelligence and security decision, and the amendments in item 9 of Schedule 15 which repeal subsections 105.51(5) to (9) of the Criminal Code.
Item 7: Subsection 140(1)
876. This item repeals subsection 140(1) and substitutes the text to clarify that section 140 applies in relation to an intelligence and security decision, other than an exempt security record decision. The effect of this amendment is to remove the reference to preventative detention order decisions from the list of intelligence and security decisions in relation to which section 140 does not apply. This is consequential to the amendment in item 2, which removes preventative detention decisions from the definition of intelligence and security decision, and the amendments in item 9 of Schedule 15 which repeal subsections 105.51(5) to (9) of the Criminal Code.
Item 8: Paragraph 145(1)(a)
877. This item omits the words "other than a proceeding for review of a preventative detention decision" from paragraph 145(1)(a). This is consequential to the amendment in item 2, which removes preventative detention decisions from the definition of intelligence and security decision, and the amendments in item 9 of Schedule 15 which repeal subsections 105.51(5) to (9) of the Criminal Code.
Item 9: Section 146
878. This item repeals section 146, which relates to the constitution of the Tribunal for preventative detention decisions. This is consequential to the amendments in item 9 of Schedule 15 which repeal subsections 105.51(5) to (9) of the Criminal Code.
Item 10: Subsection 147(2) (table item 3)
879. This item repeals table item 3 of subsection 147(2) which sets out the parties to proceedings in relation to preventative detention decisions. This is consequential to the amendments in item 9 of Schedule 15 which repeal subsections 105.51(5) to (9) of the Criminal Code.
Item 11: Section 164
880. This item repeals section 164, which relates to preventative detention decisions. This is consequential to the amendments in item 9 of Schedule 15 which repeal subsections 105.51(5) to (9) of the Criminal Code.
Item 12: Paragraph 165(a)
881. This item repeals paragraph 165(a), and substitutes the text to clarify that Subdivision B of Division 5 of Part 6 applies in relation to the review of an intelligence and security decision other than an exempt security record decision. The effect of this amendment is to remove the reference to preventative detention decisions from the list of intelligence and security decisions in relation to which this subdivision does not apply. This is consequential to the amendment in item 2, which removes preventative detention decisions from the definition of intelligence and security decision, and the amendments in item 9 of Schedule 15 which repeal subsections 105.51(5) to (9) of the Criminal Code.
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