House of Representatives

Explanatory Memorandum

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

GENERAL OUTLINE

1. The Administrative Review Tribunal (Miscellaneous Measures) Bill 2024 (the Bill) forms part of a package of legislation that abolishes the Administrative Appeals Tribunal (AAT) and establishes the Administrative Review Tribunal (the Tribunal), a new federal administrative review body that is user-focused, efficient, accessible, independent and fair.

2. The Administrative Review Tribunal Act 2024 (ART Act) establishes the Tribunal and sets out its operating framework. The Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Consequential Act 1) repeals the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), makes consequential amendments to 138 Commonwealth Acts and facilitates the smooth transition from the AAT to the Tribunal. The Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Act 2024 (Consequential Act 2) makes consequential amendments to 110 Commonwealth Acts that interact with the AAT Act, including Acts that have required consultation with States and Territories under cooperative schemes or intergovernmental agreements.

3. The Bill would make further amendments to 52 Commonwealth Acts (including the ART Act), to update references to the AAT in legislation that has passed or been introduced to Parliament since the introduction of the ART Act and to make technical amendments to support the efficient conduct of Tribunal review and ensure the legislation operates as intended.

Amendments to the ART Act

4. The Bill would amend the ART Act to improve the operation of provisions and the experience of applicants.

5. For example, the Bill would make amendments to exclude the period between 24 December and 14 January from the calculation of the 28-day period from which a party can appeal a decision of the Tribunal to the Federal Court of Australia. This would align the ART Act with the Federal Court Rules 2011 and address practical difficulties and disadvantages to parties seeking to make an appeal over the holiday period.

6. Additionally, the Bill would amend the provisions of the ART Act that enable the President to authorise members and registrars to perform certain powers and functions of the Tribunal. The amendments would exclude the powers and functions under Part 6 of the ART Act, which relates to the Intelligence and Security jurisdictional area. The functions and powers exercised under Part 6 involve high levels of sensitivity, including making and recording findings and communicating decisions. These functions and powers should be reserved for the Tribunal as constituted.

7. To ensure the efficient and effective operation of the legal or financial assistance framework under the ART Act, the Bill would make amendments to ensure that the Attorney-General can delegate the power to authorise the payment of costs or grant legal or financial assistance to officers in the department.

8. The Bill would also make amendments to clarify who can continue an application for review of a decision where the original applicant in relation to the decision has died, become bankrupt, is wound up, ceases to exist, or becomes subject to any form of liquidation or administration. The amendments would provide that a person may only apply to continue the substantive application if they would have been able to apply for review of the decision at the time the application was originally made. This would ensure that section 84 does not conflict with other legislative provisions relating to standing to apply.

Amendments to other Acts

Terminology changes and updating cross-references

9. The Bill would update terminology in recent Commonwealth Acts and Bills before Parliament to replace references to the AAT and AAT Act with references to the Tribunal and the ART Act. These amendments would ensure that the Tribunal has the same jurisdiction as the AAT, and that various provisions continue to operate in substantively the same way as the existing law in the AAT.

10. The Bill would also replace references to provisions of the AAT Act with references to the equivalent, or broadly equivalent, provisions under the ART Act. These amendments would ensure that other legal frameworks reflect the terminology, concepts, structure and other policy settings in the ART Act or are otherwise consistent with the ART Act. This would ensure that laws apply as intended.

Consistency of timeframes to apply for review of a deemed decision

11. Under section 16 of the ART Act, if the decision of a person not to do a thing is a reviewable decision and the person does not do the thing within a quantified period as provided for under an Act, the person is deemed to have made a decision not to do the thing at the end of the period (a deemed decision).

12. Subsection 18(1) of the ART Act provides that the timeframe for applying to the Tribunal will be set out in the rules. Subsection 18(3) provides that the rules cannot prescribe a timeframe ending before a day less than 28 days after the day a decision is made. The rules will include timeframes for applying for review of a deemed decision.

13. Consequential Acts 1 and 2 amend Acts specifying timeframes for review of decisions to ensure that the standard timeframe for review in section 18 of the ART Act applies, unless the timeframe in the other Act is longer. However, provisions specifying timeframes for review of deemed decisions (decisions taken to be made due to the passage of time) were left. This Bill will remove those provisions to ensure consistent arrangements in relation to calculation of timeframes to apply for a review of deemed decisions.

14. There is currently inconsistency across legislation in relation to the timeframes to apply for review to the Tribunal of deemed decisions made under those Acts, creating unnecessary administrative burden for the new Tribunal. Some Acts provide the 28 days to apply begins on the day the decision was deemed to be made whereas others provide it begins the day after the decision was deemed to be made. Under the ART Act, the timeframe begins on the day after the decision is made, and must not be less than 28 days from that day. The consequential amendments made by this Bill will achieve consistency with the approach to timeframes in the ART Act, without any reduction to existing timeframes.

Ability to change a decision once a matter is referred to the guidance and appeal panel

15. Section 31 of the ART Act provides that a decision cannot be altered outside of the Tribunal process. This means that while a reviewable decision is under review by the Tribunal, the decision may only be altered with the agreement of the Tribunal and the parties, or if it is remitted to the decision-maker under section 85 of the Act.

16. The application of this clause is subject to contrary intention contained in another Act. Legislation in the Social Services, Health, Veterans' Affairs, Education and Employment and Workplace Relations portfolios alter this arrangement, allowing for a decision to be altered by the decision maker while the decision is before the Tribunal. This ensures that a more favourable decision to the applicant can be made expeditiously, without awaiting the outcome of the review by the Tribunal.

17. This Bill would amend such provisions to ensure that section 31 of the ART Act applies in relation to guidance and appeals panel proceedings. These proceedings concern matters of systemic significance or possible errors by the Tribunal and the Tribunal must have visibility of how they are resolved. Similar amendments were made in Consequential Act 1 in relation to legislation in the Social Services portfolio. The amendments would not prevent a decision-maker from substituting a more favourable decision provided it is done in accordance with section 31 of the ART Act.

Immunity for nominated Tribunal members issuing post-entry and delayed notification search warrants

18. The Crimes Act 1914 (Crimes Act) provides for nominated Tribunal members to issue post-entry and delayed notification search warrants.

19. The legislative notes to sections 3UJC and 3ZZAD of the Crimes Act reference section 293 of the ART Act, which provides immunities to members in the performance of their functions as a member of the Tribunal. Other similar provisions of the Crimes Act contain a standalone immunity, providing nominated Tribunal members with the same protection and immunity as a Justice of the High Court in relation to exercising the function.

20. The Bill would amend sections 3UJC and 3ZZAD of the Crimes Act to contain a standalone immunity for nominated Tribunal members, to harmonise drafting with other similar functions (see, for example, the power to extend authorities for controlled operations in sections 15GG and 15GU of the Crimes Act). The amendments reflect the policy intent to ensure that nominated Tribunal members enjoy appropriate and consistent immunity and protection for exercising functions under the Crimes Act that are that are in addition to their usual duties.

Removing time limits to apply for review of certain Social Services decisions

21. The Bill would amend legislation in the Social Services portfolio to remove the three-month time limit to apply for both internal and Tribunal review of ABSTUDY or Assistance for Isolated Children (AIC) debt decisions. This time limit is anomalous, and does not apply in reviews of debt decisions in relation to other social security payments. By removing the time limit from the ABSTUDY and AIC debt decisions, the Bill removes a potential barrier for individuals seeking review of government decisions.

Procedural and technical amendments to clarify drafting and ensure provisions operate as intended

22. The Bill would also make technical and procedural clarifications to ensure the legislation operates as intended.

23. For example, the Bill would amend legislation toensure that provisions relating to when decisions become final account for the guidance and appeals panel. This is a new feature of the ART Act, and amendments are required to ensure that existing provisions operate as intended.

24. Amendments within the Home Affairs portfolio would remove ambiguity about the requirements to make a valid application for review of a migration or protection decision, and how the Tribunal may deal with applications that do not meet minimum requirements. Amendments also ensure that decision-makers under the Migration Act must participate in guidance and appeals panel proceedings so that that matters raising issues of significance to administrative law are properly ventilated.

FINANCIAL IMPACT

25. Nil