Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
SENATE
ADMINISTRATIVE REVIEW TRIBUNAL
(CONSEQUENTIAL AND
TRANSITIONAL PROVISIONS)
BILL 2000
REVISED EXPLANATORY MEMORANDUM
This explanatory memorandum takes account of amendments
made
by the House of Representatives to the Bill as introduced
(Circulated by the authority of the Attorney-General,
the
Honourable Daryl Williams AM QC MP)
ISBN: 0642 465614
1. TABLE OF CONTENTS
2. ADMINISTRATIVE REVIEW TRIBUNAL
(CONSEQUENTIAL
AND TRANSITIONAL PROVISIONS)
BILL 2000
The Administrative Review Tribunal Bill (ART Bill) establishes the Administrative Review Tribunal (ART). Its function will be to review administrative decisions on the merits. The Tribunal will be readily accessible and provide review that is fair, just, economical, informal and quick.
The Tribunal will replace the Administrative Appeals Tribunal (AAT), the Social Security Appeals Tribunal (SSAT), the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT). Jurisdiction to review decisions is currently conferred on these tribunals by various enactments.
The Administrative Review Tribunal (Consequential and Transitional Provisions) Bill (ART (CTP) Bill) amends Acts that confer jurisdiction on those tribunals so that they confer that jurisdiction on the new Tribunal.
Where appropriate, the ART (CTP) Bill makes specific provision for procedures to be followed by the Tribunal in its review of certain decisions.
The ART (CTP) Bill also makes provision in relation to the review, after the time that the ART commences operations, of decisions made before that time, for appeals etc. from decisions made by the existing tribunals where those appeals etc. have not been completed by that time, and for the transfer to the new Tribunal of matters that, just before that time, are before any of the existing tribunals.
There are 18 schedules to the ART (CTP) Bill:
• Schedule 1 amends Acts to replace references to the AAT with references to the ART;
• Schedule 2 amends Acts to replace references to the Administrative Appeals Tribunal Act 1975 (AAT Act) with references to the ART Bill;
• Schedule 3 makes consequential amendments of various Acts to take account of differences between the legislation providing for review by the existing tribunals and the ART Bill;
• Schedule 4 makes consequential amendments of the Australian Security Intelligence Organisation Act 1979;
• Schedule 5 adds a new Schedule to the Australian Security Intelligence Organisation Act, setting out modifications of the ART Bill applicable for the purpose of review of security assessments made under that Act;
• Schedule 6 makes consequential amendments of the Taxation Administration Act 1953;
• Schedule 7 adds a new Schedule to the Taxation Administration Act, setting out modifications of the ART Bill applicable for the purpose of review of certain decisions made under that Act;
• Schedule 8 makes consequential amendments of the Veterans’ Entitlements Act 1986;
• Schedule 9 adds a new Schedule to the Veterans’ Entitlements Act, setting out modifications of the ART Bill applicable for the purpose of review of certain decisions made under that Act;
• Schedule 10 makes consequential amendments of the Social Security Act 1991 and the Social Security (Administration) Act 1999;
• Schedule 11 replaces Schedule 3 to the Social Security (Administration) Act with a new Schedule, setting out modifications of the ART Bill applicable for the purpose of review of certain decisions made under that Act;
• Schedule 12 makes consequential amendments of the A New Tax System (Family Assistance) (Administration) Act 1999;
• Schedule 13 adds a new Schedule to the A New Tax System (Family Assistance) (Administration) Act, setting out modifications of the ART Bill applicable for the purpose of review of certain decisions made under that Act;
• Schedule 14 makes consequential amendments of the Migration Act 1958, the Australian Citizenship Act 1948 and the Immigration (Guardianship of Children) Act 1946;
• Schedule 15 makes provision for the transition from the AAT to the ART;
• Schedule 16 makes provision for the transition from the MRT and RRT to the ART;
• Schedule 17 makes provision for the transition from the SSAT to the ART; and
• Schedule 18 amends the Federal Court of Australia Act 1976 in its application to certain specified matters coming before the Federal Court from a tribunal or authority (other than a court) constituted by, or including amongst its members, a judge.
The explanatory memorandum to the ART Bill includes a financial impact statement for the establishment of the ART.
1. This clause is a formal provision specifying the short title of the ART (CTP) Bill.
1. This clause specifies when different clauses of the ART (CTP) Bill, and items of the Schedules to the Bill, will commence. Most provisions of the ART (CTP) Bill commence by reference to the commencement of various provisions of the ART Bill.
2. Clause 2 of the ART Bill provides that, on the day that that Bill receives Royal Assent, the following provisions of that Bill commence:
• Part 1 (preliminary);
• Part 2 (establishment, structure and membership of the Tribunal);
• Part 3 (administration of the Tribunal);
• Part 11 (Administrative Review Council); and
• Part 12 (regulations).
3. Clause 2 of the ART Bill also provides that Parts 4 to 10 of that Bill commence on a day to be fixed by Proclamation (subject to a default provision). Those Parts provide for the ART to review decisions, and for appeals and references of questions of law from the Tribunal to the Federal Court (and the transfer of appeals from the Federal Court to the Federal Magistrates Court), and for various related matters.
4. Clause 2 of the ART (CTP) Bill provides that the following provisions of the Bill commence on the day on which the ART Bill receives the Royal Assent:
• clause 2 (commencement);
• clause 3 (which repeals Part V of the AAT Act, dealing with the Administrative Review Council);
• Part 1 of Schedule 15 (definitions etc.); and
• Part 11 of Schedule 15 (Administrative Review Council appointments, performance of functions etc. unaffected by repeal of Part V of AAT Act).
5. Subclause 2(2) of the ART (CTP) Bill provides that the remaining provisions of the Bill, with the exceptions set out in subclauses 2(3) to (9), commence on the day on which Parts 4 to 10 of the ART Bill commence: jurisdiction commencement day.
6. While the ART will be established as soon as the ART Bill receives the Royal Assent, the Tribunal will have no power to review decisions until the jurisdiction commencement day, at which time provisions of the ART (CTP) Bill will effect the abolition of the existing tribunals and the conferral of jurisdiction on the new Tribunal.
7. During the period between the ART Bill receiving Royal Assent and the jurisdiction commencement day, it is intended that the President, executive members and the Chief Executive Officer of the ART will be appointed to make preparations for commencement of the Tribunal’s review jurisdiction. Because Part 12 of the ART Bill will commence on Royal Assent, appropriate regulations can be made under that Bill before the jurisdiction commencement day.
8. Some of the provisions amended by Schedules 1 to 3 of the ART (CTP) Bill may not have commenced by the jurisdiction commencement day. Where this occurs, subclauses 2(3) to (9) of the Bill make express provision in relation to each of those provisions so that each amending item commences immediately after the commencement of the relevant provision.
1. This clause repeals Part V of the AAT Act, which establishes and makes provision for the Administrative Review Council. Part 11 of the ART Bill re-establishes the Council and makes provision for its continuing operation. Part V is repealed before the rest of the AAT Act so that its repeal can be effected at the same time as the commencement of Part 11 of the ART Bill.
1. This clause repeals the AAT Act, which established and makes provision for the operations of the AAT. (Note that clause 3 will separately repeal Part V of that Act before this clause commences: see clause 2.)
1. This clause provides that the legislation (Acts and the Corporations Law) specified in a Schedule to the ART (CTP) Bill is amended or repealed as set out in the applicable items in the various Schedules.
1. This clause allows regulations to be made that are consequential on the enactment of the ART Bill and the repeals and amendments made by the Schedules to the ART (CTP) Bill.
2. It also allows the making of regulations of a transitional or saving nature arising from the transition from the AAT Act to the ART Bill or from the repeals and amendments made by the Schedules to the ART (CTP) Bill, or by consequential regulations.
3. The consequential regulations are expressly able to amend Acts and those amendments are, for the purposes of the Amendments Incorporation Act 1905, to be treated as if they had been made by an Act. This provision will ensure that any necessary consequential amendments that are inadvertently not provided for in this Bill can be made without the need for the enactment of another Act. Similar provision was made by subsection 14(5) of the Public Employment (Consequential and Transitional) Amendment Act 1999 (the cognate Act to the Public Service Act 1999) which, like this Bill, made straightforward amendments of a very large number of Acts.
4. For a year after the commencement of this clause (on the jurisdiction commencement day: see clause 2), regulations made under it may commence on a day earlier than the day on which they are made, though not earlier than the day that this clause commences. This provides a limited period during which consequential, transitional or savings regulations can be made with retrospective effect.
1. This item provides that the specified provisions of the Acts listed in this Schedule are amended by replacing references to the AAT with references to the ART.
1. These items specify the provisions that are amended as provided in item 1.
1. This item provides that the specified provisions of the Acts listed in this Schedule are amended by replacing references to the AAT Act with references to the ART Bill.
1. These items specify the provisions that are amended as provided in item 1.
1. This Schedule makes consequential amendments of various Acts to take account of differences between the legislation providing for review by the existing tribunals and the ART Bill. In some cases these amendments bring the language of various provisions into line with the language of the ART Bill. In other cases, the amendments take account of structural differences between the existing tribunals and the ART.
15. Item 1:
Paragraph 113(1)(a)
16. Item 2:
Paragraph 113(1)(b)
17. Item 3:
Subsection 113(1)
1. These items change references (including a reference in a heading) to the AAT to references to the ART.
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
19. Item 5:
Subsection 113(3)
20. Item 6:
Subsection 113(4)
21. Item 7:
Paragraph 113(4)(a)
1. These items change references to the AAT to references to the ART.
23. Item 8:
Subsection 9(7)
(note)
24. Item 9:
Subsection 11(7) (note)
1. These notes are replaced with notes, of the same effect, with references to provisions of the AAT Act changed to references to the corresponding provisions of the ART Bill.
26. Item 10: Paragraph 13(11)(a)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
28. Item 11:
Subsection 85-4(6)
(note)
29. Item 12:
Subsection 85-5(7) (note)
1. These items change references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
31. Item 13: Paragraph 10(H)(6)(c)
1. This provision is replaced with a provision, of the same effect, with references to provisions of the AAT Act changed to references to the corresponding provisions of the ART Bill.
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
34. Item 15: Subsection 15(10)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
37. Item 17: Subsection 18(10)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
39. Item 18: Paragraph 69D(1C)(b)
1. This item changes references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
41. Item 19: Paragraph 168(1)(b)
1. This item changes references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
43. Item 20: Paragraph 23A(2)(b)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
45. Item 21:
Subsection 13(1)
(note)
46. Item 22:
Subsection 18(2) (note 1)
1. These items change references to the AAT to references to the ART.
47. Item 23: After subsection 21(1)
1. This item provides that the Taxation Division of the ART must review an application for review of any decision of the Registrar of the Australian Business Register covered by subsection 21(1) of the A New Tax System (Australian Business Number) Act 1999.
1. This item maintains provisions under the AAT legislation that the Registrar of the Australian Business Register must register, on an interim basis, an applicant for an Australian Business Number pending the Tribunal’s review of the Registrar’s refusal to register the applicant for an Australian Business Number. This provision is also amended so that it uses the same language as the ART Bill.
1. This provision is amended so that it uses the same language as the ART Bill.
50. Item 26: Paragraph 22(1)(d)
1. This provision is replaced with a provision, of the same effect, with references to provisions of the AAT Act changed to references to the corresponding provisions of the ART Bill. This item maintains provisions under the AAT legislation that the Registrar of the Australian Business Register must notify a person, whose interests are affected by a decision under section 21 of the A New Tax System (Australian Business Number) Act 1999, of their right to request a statement of reasons under clause 57 of the ART Bill.
51. Item 27: Subsection 27A(2)
1. This item maintains provisions under the AAT legislation that the Registrar of the Australian Business Register must not disclose the details that are the subject of the application pending the determination of the application for review made under subsection 27A(1) of the A New Tax System (Australian Business Number) Act 1999. This provision is also amended so that it uses the same language as the ART Bill.
52. Item 28: Paragraph 27B(1)(d)
1. This provision is replaced with a provision, of the same effect, with references to provisions of the AAT Act changed to references to the corresponding provisions of the ART Bill. This item maintains provisions under the AAT legislation that the Registrar of the Australian Business Register must notify a person, whose interests are affected by a decision under section 27A of the A New Tax System (Australian Business Number) Act 1999, of their right to request a statement of reasons under clause 57 of the ART Bill.
54. Item 29: Subsection 53(4) (note)
1. This note is replaced with a note, of the same effect, with references to provisions of the AAT Act changed to references to the corresponding provisions of the ART Bill.
55. Item 30: After subsection 53(4)
1. This item provides that the Taxation Division of the ART must review an application for review of a decision of the Commissioner of Taxation not to make a determination under section 53 of the A New Tax System (Bonuses for Older Australians) Act 1999.
57. Item 31: Subsection 40(11)
1. This provision is amended so that it uses the same language as the ART Bill.
1. This provision is amended as current references to section 43(4) are no longer valid.
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
1. This provision is amended so that it uses the same language as the ART Bill.
1. Subsection 40(5) of the Archives Act 1983 makes provision for notification of a decision to refuse to grant access to a record. Accordingly, clause 57 of the ART Bill is disapplied in relation to applications to the ART under section 43.
1. This provision is made to ensure that reviews of decisions involving ASIO records are conducted in a secure manner within the Security Appeals Division of the ART.
1. Subsection 40(5) of the Archives Act 1983 makes provision for notification of a decision to refuse to grant access to a record. Accordingly, clause 57 of the ART Bill is disapplied in relation to applications to the ART under section 43.
2. This provision requires that the ART be constituted in a particular way when reviewing decisions about access to a record of the Australian Security Intelligence Organisation. This requirement reflects the significance of appeals involving Australian Security Intelligence Organisation matters. (There was an analogous constitution requirement for review of such decisions by the AAT, but this has had to be amended because the prescribed AAT membership has no direct equivalent in the ART.)
1. This item omits a reference which is obsolete.
1. This provision is amended so that it uses the same language as the ART Bill.
1. This provision requires that the ART is constituted at a senior level when reviewing decisions made under subsections 44(5) and (6). This ensures that decisions involving extremely sensitive national security, defence or international relations records created by defence, security and intelligence agencies are reviewed by appropriately experienced members. (There was an analogous constitution requirement for review of such decisions by the AAT, but this has had to be amended because the prescribed AAT membership has no direct equivalent in the ART.)
1. This provision (including the heading) is amended to remove language that is inconsistent with the language of the ART Bill.
70. Item 41:
Paragraph 47(2)(a)
71. Item 42:
Paragraph 47(2)(b)
72. Item 43:
Subsection 47(3)
73. Item 44:
Paragraphs 47(3)(a) and (b)
1. These provisions are amended so that they use the same language as the ART Bill.
1. This provision is amended to remove language that is inconsistent with the language of the ART Bill.
75. Item 46:
Paragraph 47(4)(a)
76. Item 47:
Paragraph 47(4)(a)
1. These provisions are amended so that they use the same language as the ART Bill.
77. Item 48: Subparagraphs 47(4)(b)(i) and (ii)
1. This provision is amended to remove language that is inconsistent with the language of the ART Bill.
78. Item 49:
Subparagraph 47(4)(b)(ii)
79. Item 50:
Paragraph 47(4)(c)
1. These provisions are amended so that they use the same language as the ART Bill.
80. Item 51: Paragraph 47(4)(c)
1. This provision is amended to remove language that is inconsistent with the language of the ART Bill.
81. Item 52: Section 48
1. This section is obsolete because it refers to the Tribunal constituted by one or more judges, and provides for the resolution of disagreements between members of the Tribunal. The ART will not be required, or expressly permitted, by the ART Bill to be constituted by, or to include among its members, a person who is a judge. (Note that clause 89 of the ART Bill provides for the resolution of disagreements between members constituting the Tribunal.)
1. This provision is amended so that it uses the same language as the ART Bill.
83. Item 54: Subsections 49(2) and (3)
1. This provision is amended to remove language that is inconsistent with the language of the ART Bill.
84. Item 55: Section 50
1. This item changes the reference to the AAT Act to a reference to the ART Bill. This provision is also amended so that it uses the same language as the ART Bill.
85. Item 56:
Paragraph 50(b)
86. Item 57:
Paragraph 50(b)
87. Item 58:
Section 51
1. These provisions are amended so that they use the same language as the ART Bill.
1. This provision is replaced with a provision, of the same effect, that uses the same language as the ART Bill.
1. This item changes the reference to a provision of the AAT Act to references to the corresponding provisions of the ART Bill.
91. Item 61:
Subsection 53(1)
92. Item 62:
Subsection 53(1)
93. Item 63:
Subsection 53(2)
94. Item 64:
Subsection 53(3)
95. Item 65:
Subsection 53(4)
1. These provisions are amended so that they use the same language as the ART Bill.
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
97. Item 67: Subsections 53(6) and (7)
1. This item changes references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
1. This provision is amended so that it uses the same language as the ART Bill.
100. Item 69: Paragraph 13A(4)(b)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
101. Item 70: Paragraph 15A(2)(b)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
102. Item 71: Paragraph 64(1)(d)
1. This item changes references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
104. Item 72: Section 12B (definition of nominated AAT member)
1. This item repeals the definition of ‘nominated AAT member’. Item 73 inserts a new definition of ‘nominated ART member’.
1. This item defines a nominated ART member for the purposes of the listening devices provisions in the Australian Federal Police Act 1979.
1. New section 12DA enables the Minister to nominate a member of the ART to issue warrants pursuant to section 12G of the Australian Federal Police Act 1979. The nomination of an ART member to issue listening device warrants is conditional upon the ART member being a legal practitioner of a court of Australia for a period of not less than 5 years. A nomination ceases to have effect when that person ceases to be a member of the ART or if the Minister withdraws the nomination. A nominated member of the ART, in performing the function to issue a listening device warrant under the Australian Federal Police Act, has the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.
108. Item 75:
Subsection 12G(1)
109. Item 76:
Subsection 12G(2)
110. Item 77:
Subsection 12G(4)
111. Item 78:
Subsections 12G(6), (7)
and (8)
112. Item 79:
Section 12H
1. These items change references to ‘nominated AAT member’ to references to ‘nominated ART member’.
114. Item 80: Subsection 122(6)
1. This item changes the reference to the AAT Act to a reference to the ART Bill. The provision also reflects that ‘orders’ (within the meaning of this legislation) are better characterised as subordinate legislation for the purposes of the ART Bill.
116. Item 81:
Subsection 40(3)
(note)
117. Item 82:
Subsection 42(3) (note)
1. These items change references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
119. Item 82A: Subsection 244A(5)
1. This item changes a reference in subsection 244A(5) of the Australian Securities and Investments Commission Act 1989 to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill. It also amends the subsection so that it uses the same language as the ART Bill.
120. Item 82B: At the end of section 244A
1. Subsection 244A(3) of the Australian Securities and Investments Commission Act 1989 provides that a decision-maker may determine that the giving of a notice of a decision as required by subsection 244A(2) is not warranted in certain circumstances. This item adds a new subsection that provides that a decision to which section 244A of the Act applies is not a ‘notifiable decision’ for the purpose of clause 56 of the ART Bill. This new subsection replicates the effect of paragraph 27A(2)(e) of the AAT Act.
122. Item 83: Paragraph 16(3)(b)
1. This item changes the reference to an order made under section 41 of the AAT Act to a reference to a direction given under clause 121 of the ART Bill.
123. Item 84: Paragraph 16(3)(b)
1. This provision is amended so that it uses the same language as the ART Bill.
125. Item 85: Paragraph 8(2C)(b)
1. This provision is replaced with a provision, of the same effect, with references to provisions of the AAT Act changed to references to the corresponding provisions of the ART Bill.
126. Item 86: Subsection 8(2F)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
127. Item 87: Paragraph 40X(2)(b)
1. This item changes references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
128. Item 88: Subsection 40Y(2)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
130. Item 89:
Subsection 282(2)
(note)
131. Item 90:
Subsection 283(2) (note)
1. These items change references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
133. Item 91: Subsection 33(2)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
135. Item 92: Subsection 32(2)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
137. Item 93: Subsection 5(1) (definition of AAT)
1. With the repeal of the AAT Act (see clause 4 of this Bill), this definition is obsolete.
138. Item 94: Subsection 5(1) (definition of AAT Act)
1. With the repeal of the AAT Act (see clause 4 of this Bill), this definition is obsolete.
1. This defines ‘ART’.
1. This defines ‘ART Act’.
141. Item 97:
Subsection 61(1)
142. Item 98:
Subsection 61(2)
1. These items change references to the AAT to references to the ART.
144. Item 99: Subsection 40(2)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
146. Item 100: Subsection 31(2)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
148. Item 101: Paragraph 57(5)(b) of Schedule 6
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provisions of the ART Bill.
149. Item 102: Part 14 (heading)
1. This item changes the reference to the AAT in the heading to a reference to the ART.
150. Item 103: Clause 2 of Schedule 4 (definition of AAT)
1. With the repeal of the AAT Act (see clause 4 of this Bill), this definition is obsolete.
151. Item 104: Clause 2 of Schedule 4
1. This defines ‘ART’.
152. Item 105: Subclause 62(1) of Schedule 4
1. This item changes references to the AAT (including the reference in the heading) to references to the ART.
153. Item 106:
Subclause 62(3) of
Schedule 4
154. Item 107:
Subclause 62(5) of
Schedule 4
155. Item 108:
Subclause 62(7) of
Schedule 4
156. Item 109:
Subclause 62(9) of
Schedule 4
157. Item 110:
Paragraph 63(b) of Schedule 4
1. These items change references to the AAT to references to the ART.
158. Item 111: Clause 3 of Schedule 5 (definition of AAT)
1. With the repeal of the AAT Act (see clause 4 of this Bill), this definition is obsolete.
159. Item 112: Clause 3 of Schedule 5
1. This defines ‘ART’.
160. Item 113: Subclause 92(1) of Schedule 5
1. This item changes references to the AAT (including the reference in the heading) to references to the ART.
161. Item 114:
Subclause 92(3) of
Schedule 5
162. Item 115:
Paragraph 93(b) of Schedule 5
1. These items change references to the AAT to references to the ART.
164. Item 116: Section 5 (definition of AAT)
1. With the repeal of the AAT Act (see clause 4 of this Bill), this definition is obsolete.
1. This defines ‘ART’.
166. Item 118: Paragraph 64A(6)(b)
1. This item changes the reference to the AAT Act to a reference to the ART Bill, and the reference to the AAT to a reference to the ART.
167. Item 119: Paragraph 64A(6)(c)
1. This item changes references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
168. Item 120: Part 6B (heading)
1. This item amends the heading of Part 6B so that it refers to the ‘ART’ rather than the ‘AAT’.
169. Item 121:
Paragraph 98W(1)(b)
170. Item 122:
Subsection 98W(2)
1. These items change references to the AAT to references to the ART.
171. Item 123: Subsection 98ZE(4)
1. This provision is replaced with a provision, of the same effect, with references to provisions of the AAT Act changed to references to the corresponding provisions of the ART Bill.
172. Item 124: Subsection 98ZE(7)
1. This item changes the reference to the AAT to a reference to the ART.
173. Item 125: Subsection 98ZF(1)
1. This item changes references to the AAT (including the reference in the heading) to references to the ART.
174. Item 126: Subsections 98ZG(1) and (2)
1. This item changes references to the AAT to references to the ART.
176. Item 127:
Subsection 96(1)
177. Item 128:
Subsection 96(2)
178. Item 129:
Subsection 98(4)
1. These items change references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
180. Item 130: At the end of section 27A
1. This item provides that the Taxation Division of the ART must review an application for review of decisions of the Chief Executive Officer of Customs or a Collector, covered by section 27A of the Coal Excise Act 1949.
182. Item 131: Paragraph 8(5)(b)
1. This item changes references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
184. Item 132: Subsection 15(2) (note)
1. This note is replaced with a note explaining that the ART Bill extends the ordinary meaning of ‘decision’.
186. Item 133: Subsection 141(6)
1. This provision is replaced with provisions that require that the ART be constituted in a particular way when reviewing decisions made by the Electoral Commission, referred to in subsection 141(5) of the Commonwealth Electoral Act 1918. As the chairperson of the Electoral Commission is either a Federal Court judge or retired Federal Court judge, subsection 141(6) currently requires that the AAT, when reviewing these decisions, be constituted by three presidential members who are Federal Court judges. The ART will not be required, or expressly permitted, by the ART Bill to be constituted by, or to include among its members, a person who is a judge. Accordingly, the most appropriate composition of the ART when reviewing decisions of the Electoral Commission is as set out in the amended subsection 141(6).
188. Item 134:
Paragraph 195B(2)(c)
189. Item 135:
Paragraph 195B(3)(b)
1. These provisions are replaced with provisions, of the same effect, with references to provisions of the AAT Act changed to references to the corresponding provisions of the ART Bill.
191. Item 135A: Part 9.4A of Chapter 9 (heading)
1. This item substitutes a new heading that refers to the new Tribunal.
192. Item 135B: Subsection 1297(1)
1. This item changes references in subsection 1297(1) of the Corporations Law to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
193. Item 135C: Subsection 1317D(5)
1. This item changes references in subsection 1317D(5) of the Corporations Law to provisions of the AAT Act to references to the corresponding provisions of the ART Bill. It also amends the subsection so that it uses the same language as the ART Bill.
194. Item 135D: At the end of section 1317D
1. Subsection 1317D(3) of the Corporations Law provides that a decision-maker may determine that the giving of a notice of a decision as required by subsection 1317D(2) is not warranted in certain circumstances. This item adds a new subsection that provides that a decision to which section 1317D of the Corporations Law applies is not a ‘notifiable decision’ for the purpose of clause 56 of the ART Bill. This new subsection replicates the effect of paragraph 27A(2)(d) of the AAT Act.
196. Item 136: Paragraph 164AF(3)(a)
1. This provision is amended so that it uses the same language as the ART Bill.
197. Item 137: Subsection 219A(1) (definition of nominated AAT member)
1. This item repeals the definition of ‘nominated AAT member’. Item 138 inserts a new definition of ‘nominated ART member’.
198. Item 138: Subsection 219A(1)
1. This item defines a nominated ART member for the purposes of the listening devices provisions in the Customs Act 1901.
1. New section 219AB enables the Minister to nominate a member of the ART to issue warrants pursuant to section 219B of the Customs Act 1901. The nomination of an ART member to issue listening device warrants is conditional upon the ART member being a legal practitioner of a court of Australia for a period of not less than 5 years. A nomination ceases to have effect when that person ceases to be a member of the ART or if the Minister withdraws the nomination. A nominated member of the ART, in performing the function to issue a listening device warrant under the Customs Act, has the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.
201. Item 140:
Subsections 219B(5) to
(9)
202. Item 141:
Section 219C
203. Item 142:
Section 219H
204. Item 143:
Subsection 219K(1)
205. Item 144:
Subsection 219ZL(4)
1. These items change references to ‘nominated AAT member’ to references to ‘nominated ART member’.
206. Item 145: Subsection 219ZL(5)
1. This item repeals subsection 219ZL(5) which defined ‘nominated AAT member’, and substitutes a new subsection 219ZL(5). The new subsection 219ZL(5) defines ‘nominated ART member’ to mean a member of the ART in respect of whom a nomination is in force under section 219AB to issue warrants under section 219B for the use of listening devices.
207. Item 146: Paragraph 269SHA(2)(c)
1. This provision is amended so that it uses the same language as the ART Bill.
208. Item 147: Subsection 269SHA(3)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
209. Item 148:
Subsection 269SHA(4)
210. Item 149:
Subsection 269SHA(5)
211. Item 150:
Paragraph 269SHA(5)(b)
212. Item 151:
Subsection 269SHA(5)
213. Item 152:
Subsection 269SHA(5)
214. Item 153:
Subsection 269SHA(6)
1. These provisions are amended so that they use the same language as the ART Bill.
216. Item 154: Subclause 25(4) of Schedule 2
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
217. Item 155: Subclause 25(7) of Schedule 2
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
219. Item 156: After subsection 25(3)
1. This item provides that the Taxation Division of the ART must review an application for review of a decision of the Commissioner of Taxation under subsection 25(1) of the Debits Tax Administration Act 1982 to refuse or grant an application made under subsection 24(1) of the Debits Tax Administration Act 1982.
220. Item 157: After subsection 25B(2)
1. This item provides that the Taxation Division of the ART must review a decision of the Commissioner of Taxation on an objection pursuant to a request under section 23 of the Debits Tax Administration Act 1982.
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
223. Item 159:
Subsection 4(1) (definition of
AAT)
224. Item 160:
Subsection 4(1) (definition of AAT Act)
1. With the repeal of the AAT Act (see clause 4 of this Bill), these definitions are obsolete.
225. Item 161: Subsection 4(1)
1. This defines ‘ART’.
226. Item 162: Subsection 4(1)
1. This defines ‘ART Act’.
1. This item changes the reference to the AAT to a reference to the ART.
1. The Defence Act 1903 provides for the establishment of a Conscientious Objection Tribunal to determine whether an applicant is exempt from service because of conscientious beliefs. This item provides that the ART Bill applies in relation to the review of a determination of the Conscientious Objection Tribunal, subject to certain modifications set out in this item.
230. Item 165:
Section 61CZD
231. Item 166:
Section 61CZE
1. Part 10 of the ART Bill provides for appeals from the ART to the Federal Court. Accordingly, these provisions are unnecessary.
233. Item 167: Part VIC (heading)
1. This item changes the heading of Part VIC to reflect the fact that review will now be conducted by the ART rather than the AAT.
234. Item 168: Paragraph 40K(2)(b)
1. This item changes the reference to the AAT to a reference to the ART and changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
235. Item 169: Subsection 40K(3)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
237. Item 170: Section 93AA (definition of AAT)
1. With the repeal of the AAT Act (see clause 4 of this Bill), this definition is obsolete.
1. This defines ‘ART’.
239. Item 172: Paragraph 112(3)(b)
1. This item changes the reference to the AAT to a reference to the ART. This item also changes the reference in the heading to subsection 112(4) to the AAT to a reference to the ART
240. Item 173: Subsection 113(3)
1. This item changes the reference to the AAT to a reference to the ART. This item also changes the reference in the heading to subsection 113(4) to the AAT to a reference to the ART
241. Item 174: Subsection 120(1)
1. This item changes the reference to the AAT to a reference to the ART. This item also changes the reference in the heading to this section to the AAT to a reference to the ART.
242. Item 175: Subsection 120(2)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
243. Item 176: Subsection 120(3)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
244. Item 177:
Subsection 120(3)
245. Item 178:
Paragraph 121(1)(b)
246. Item 179:
Subsection 121(2)
1. These items change references to the AAT to references to the ART.
248. Item 180: Subsection 8(1) (note)
1. This note is replaced with a note which refers to the requirement under clause 56 of the ART Bill that a statement must be sent to the applicant notifying them of their right to have the decision of the Commissioner of Taxation made under subsection 8(1) of the Diesel and Alternative Fuels Grants Scheme Act 1999 to be reviewed in the ART.
250. Item 181: Subsection 26(5) (note)
1. This item changes the reference in the note to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
251. Item 182: Subsection 26(5) (note)
1. With the repeal of the AAT Act (see clause 4 of this Bill), this reference to the Code of Practice under section 27B of that Act is obsolete.
253. Item 183: After
subsection 82B(1)
254. Item 184:
Subsection 82B(2)
1. These items provide that the Taxation Division of the ART must review an application for review of decisions of the Chief Executive Officer of Customs or a Collector, covered by section 82B of the Distillation Act 1901.
256. Item 185:
Paragraph 14(2)(b)
257. Item 186:
Subsection 14(3)
1. These items change references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
259. Item 187: Subsection 13(4)
1. Subsection 13(4) of the Electronic Transactions Act 1999 exempts the practice and procedure of courts and tribunals from the provisions of the Electronic Transactions Act 1999. This item amends subsection 13(4) to ensure that the provisions of the Electronic Transactions Act 1999 will apply to the practice and procedure of the ART. The purpose of this amendment is to ensure that electronic communications can be used when dealing with the ART.
261. Item 188: Subitem 9(1) of Schedule 2
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill. This item also amends the heading to item 9 to change the reference to the AAT to a reference to the ART.
262. Item 189: Subitem 9(1) of Schedule 2 (note)
1. This note is replaced with a note, of the same effect, with references to provisions of the AAT Act changed to references to the corresponding provisions of the ART Bill.
263. Item 190: Subitem 9(2) of Schedule 2
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
265. Item 191:
Paragraph 472(2)(b)
266. Item 192:
Subsection 473(2)
1. These items change references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
268. Item 193: After subsection 162C(1)
1. This item provides that the Taxation Division of the ART must review an application for review of decisions of the Chief Executive Officer of Customs or a Collector, covered by section 162C of the Excise Act 1901.
270. Item 194: Subsection 25(8)
1. This item changes the reference to the AAT Act to a reference to the ART Bill. The provision also reflects that ‘orders’ (within the meaning of this legislation) are better characterised as subordinate legislation for the purposes of the ART Bill.
272. Item 195: Subsection 83(3)
1. This item changes the inclusion of ‘AAT’ in the definition of a court to inclusion of ‘ART’.
273. Item 196: Subsection 98(4) (note)
1. This item emphasises that applicants must be notified of their review rights.
1. This item changes the reference to the AAT to a reference to the ART.
1. The ART Bill contains mechanisms for the reconstitution of the Tribunal in circumstances where a member becomes unavailable (see clause 70) and for the resolution of disagreements between members of the Tribunal (see clause 89) without requiring the review of the decision to be reheard. Therefore, the circumstances referred to in section 10A of this Act under which a costs certificate in respect of the application for review may be granted are no longer applicable and the provision is redundant.
278. Item 199: Subsection 27(7)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
279. Item 200: Subsection 27(8)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
280. Item 201: Paragraph 27(9)(b)
1. This provision is replaced with a provision, of the same effect, with references to provisions of the AAT Act changed to references to the corresponding provisions of the ART Bill.
282. Item 202: Subsection 165(8)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
283. Item 203: Subsection 165(9)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
284. Item 204: Subsection 165(10)
1. This provision is replaced with a provision, of the same effect, with references to provisions of the AAT Act changed to references to the corresponding provisions of the ART Bill.
286. Item 205:
Subparagraph 26A(2)(b)(ia)
287. Item 206:
Subparagraph 27(2)(b)(ia)
288. Item 207:
Subparagraph 27A(2)(b)(ia)
1. These items change references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill. These items also amend the subparagraphs so that they use the same language as the ART Bill.
289. Item 208: Subsection 55(4)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
290. Item 209:
Subsection 56(5)
291. Item 210:
Subsection 58(1)
292. Item 211:
Subsection 58(2)
1. These provisions are amended so that they use the same language as the ART Bill.
293. Item 212: Paragraph 58(7)(a)
1. This item changes the reference to the AAT to a reference to the ‘Tribunal’—that is, the ART: see subsection 4(1) of the Freedom of Information Act 1982 (FOI Act).
1. This provision is replaced with a provision that requires that the ART is constituted at a senior level when dealing with a request made in accordance with subsection 58(4), (5) or (5A): that is, in certificate cases. This requirement reflects the exceptional circumstances of certificate cases. (There was an analogous constitution requirement in relation to certificate cases in the AAT, but this has had to be amended because the prescribed AAT membership has no direct equivalent in the ART.)
296. Item 214: Subsection 58C(2)
1. This provision (including the heading) is amended to remove language that is inconsistent with the language of the ART Bill.
297. Item 215:
Paragraph 58C(2)(a)
298. Item 216:
Paragraph 58C(2)(b)
299. Item 217:
Subsection 58C(3)
300. Item 218:
Paragraphs 58C(3)(a) and (b)
1. These provisions are amended so that they use the same language as the ART Bill.
301. Item 219: Subsection 58C(4)
1. This provision is amended to remove language that is inconsistent with the language of the ART Bill.
302. Item 220:
Paragraph 58C(4)(a)
303. Item 221:
Paragraph 58C(4)(a)
1. These provisions are amended so that they use the same language as the ART Bill.
304. Item 222: Subparagraphs 58C(4)(b)(i) and (ii)
1. This provision is amended to remove language that is inconsistent with the language of the ART Bill.
305. Item 223:
Subparagraph 58C(4)(b)(ii)
306. Item 224:
Paragraph 58C(4)(c)
1. These provisions are amended so that they use the same language as the ART Bill.
307. Item 225: Paragraph 58C(4)(c)
1. This provision is amended to remove language that is inconsistent with the language of the ART Bill.
308. Item 226: Section 58D
1. This section is obsolete because it refers to the Tribunal constituted by one or more judges, and provides for the resolution of disagreements between members of the Tribunal. The ART will not be required, or expressly permitted, by the ART Bill to be constituted by, or to include among its members, a person who is a judge. (Note that clause 89 of the ART Bill provides for the resolution of disagreements between members constituting the Tribunal.)
309. Item 227: Subsection 58E(1)
1. This provision is amended so that it uses the same language as the ART Bill.
310. Item 228: Subsections 58E(2) and (3)
1. This provision is amended to remove language that is inconsistent with the language of the ART Bill.
311. Item 229:
Subsection 58F(2A)
312. Item 230:
Subsection 59(2A)
313. Item 231:
Subsection 59A(2A)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
1. This provision is replaced with a provision, of the same effect, that uses the same language as the ART Bill.
316. Item 233:
Subsection 61(1)
317. Item 234:
Subsection 61(2)
318. Item 235:
Subsection 61(2)
1. These provisions are amended so that they use the same language as the ART Bill.
319. Item 236: Subsection 62(1)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provisions of the ART Bill. The heading is also amended to reflect this change.
1. This provision is replaced with a provision, of the same effect, that uses the same language as the ART Bill.
322. Item 238: Subsection 64(1)
1. This provision is amended so that it uses the same language as the ART Bill. The inclusion of the words ‘or preparing to conduct’ is consequential to item 243.
323. Item 239: Subsection 64(1)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provisions of the ART Bill.
324. Item 240: Subsection 64(1)
1. This provision is amended so that it uses the same language as the ART Bill.
325. Item 241: After subsection 64(1)
1. This provision implements, in relation to the ART, Recommendation 86 of the 1995 joint report of the Australian Law Reform Commission and the Administrative Review Council entitled ‘Open government: a review of the federal Freedom of Information Act 1982’. Recommendation 86 is that the FOI Act should be amended to prohibit the AAT from disclosing to any person, including the applicant’s legal representative, documents that are claimed to be exempt, whether they were provided to the AAT under section 64 of the FOI Act or not. Documents may be provided voluntarily to the AAT, rather than under section 64. This provision does not prevent members of the ART constituted for the purposes of the review or staff members of the ART from inspecting or having access to the documents for the purposes of the review.
326. Item 242: Subsection 64(2)
1. This provision is amended so that it uses the same language as the ART Bill.
327. Item 243: After subsection 64(2)
1. This provision implements, in relation to the ART, Recommendation 85 of the 1995 joint report of the Australian Law Reform Commission and the Administrative Review Council entitled ‘Open government: a review of the federal Freedom of Information Act 1982’. Recommendation 85 is that section 64 of the FOI Act should be amended to make it clear that the AAT can, at any time after the date by which an agency must have complied with section 37 of the AAT Act, require production to the AAT of documents claimed by the agency to be exempt. This provision enables the ART, in making an order for the purposes of subsection 64(1), (2) or (4), to require the production of a relevant document at any time later than 28 days after the decision-maker was given notice of the application, even if the ART has not begun to hear argument or otherwise deal with the matter.
328. Item 244:
Subsection 64(3)
329. Item 245:
Subsection 64(4)
1. These provisions are amended so that they use the same language as the ART Bill.
330. Item 246:
Subsection 64(5)
331. Item 247:
Subsection 64(6)
1. These provisions are amended as a consequence of item 241.
332. Item 248:
Subsection 64(6)
333. Item 249:
Subsection 64(7)
1. These items change references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
334. Item 250: Subsection 64(8)
1. This item changes a reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill. This item is also consequential to item 241.
335. Item 251:
Section 65
336. Item 252:
Subsection 66(1)
1. These provisions are amended so that they use the same language as the ART Bill.
338. Item 253: Subsection 133(4)
1. This provision is amended so that it replaces references to the officers of the AAT with references to the relevant officers of the ART.
340. Item 254: Subsection 3(1) (definition of AAT)
1. With the repeal of the AAT Act (see clause 4 of this Bill), this definition is obsolete.
341. Item 255: Subsection 3(1)
1. This defines ‘ART’.
342. Item 256: Subsection 39M(1)
1. This item changes references to the AAT (including the reference in the heading) to references to the ART.
343. Item 257: Subsection 39M(2)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
344. Item 258: Subsection 39M(3)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
345. Item 259:
Subsection 39M(3)
346. Item 260:
Paragraph 39N(1)(b)
347. Item 261:
Subsection 39N(2)
1. These items change references to the AAT to references to the ART.
349. Item 262: Paragraph 58(1)(b)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
350. Item 263: Subsection 58(2)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill. The effect of the amendment is to provide that a decision-maker does not have to give a statement of reasons to a person who requests one, if subclause 57(3) of the ART Bill applies. Subclause 57(3) applies where:
• the person has already been given a statement of reasons;
• the decision itself sets out the things required to be in a statement of reasons;
• the person was given a document setting out the terms of the decision and did not request a statement of reasons within 28 days of receiving that document; or
• the person was not given written notice of the terms of the decision and did not request a statement of reasons within a reasonable time after the decision was made.
352. Item 264: Subsection 33G(1) (note)
1. This provision is replaced with a provision, of the same effect, with the reference to a provision of the AAT Act changed to a reference to the corresponding provision of the ART Bill.
353. Item 265: Subsection 33G(2)
1. This item changes the reference to a provision of the AAT Act to references to the corresponding provisions of the ART Bill.
355. Item 266:
Subsection 20AB(4)
(note)
356. Item 267:
Subsection 20AC(4)
(note)
357. Item 268:
Subsection 20AD(4) (note)
1. These items change references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
358. Item 269:
Paragraph 23DC(10)(d)
359. Item 270:
Paragraph 23DF(11)(d)
360. Item 271:
Subsection 23DL(9)
361. Item 272:
Subsection 23DN(7)
362. Item 273:
Subsection 23DO(4)
1. The ART Bill does not preclude the making of an application to the ART on behalf of a person whose interests are affected by a decision. Accordingly, these words are not required.
363. Item 274: Subsection 23DZE(1)
1. This item changes references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
365. Item 275:
Subparagraph 30(1)(b)(ii)
366. Item 276:
Paragraph 34(1)(b)
1. These items change references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
368. Item 277: Subsection 50(2)
1. This item changes the reference to a provision of the AAT Act to a reference to corresponding provisions of the ART Bill. This provision is also amended so that it uses the same language as the ART Bill.
369. Item 278: Subsection 51(1)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill. The relevant provisions concern the issue of a statement advising an affected person of appeal rights which is to accompany the notification of decisions.
370. Item 279: Subsection 106MA(2)
1. This provision is amended so that notification of a decision by the Secretary on his or her review of a reconsideration decision must be made to the Chief Executive Officer of the ART. (The provision previously required that notification be made to the Registrar of the AAT.)
371. Item 280: Subsection 106MA(5)
1. This provision is repealed as clause 126 of the ART Bill specifies the effect of the decision-maker varying an original decision or the decision-maker setting an original decision aside and making a new decision in substitution for the decision set aside.
372. Item 281: Paragraph 106X(2)(b)
1. This item changes references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
374. Item 282: Subsection 81(6)
1. This item changes the reference to the AAT Act to a reference to the ART Bill. The provision also reflects that ‘orders’ (within the meaning of this legislation) are better characterised as subordinate legislation for the purposes of the ART Bill.
376. Item 283: Subparagraph 42(9)(b)(i)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
378. Item 284: Subsection 124K(1D)
1. This provision is replaced with a provision, of the same effect, with references to provisions of the AAT Act changed to references to the corresponding provisions of the ART Bill.
379. Item 285: Subsection 124ZADAB(2)
1. This provision is replaced with a provision, of the same effect, with references to provisions of the AAT Act changed to references to the corresponding provisions of the ART Bill.
380. Item 286: Subsection 159UV(2)
1. This provision is replaced with a provision, of the same effect, with references to provisions of the AAT Act changed to references to the corresponding provisions of the ART Bill.
381. Item 287: Subsection 202F(2)
1. This item provides that the Taxation Division of the ART must review an application for review of any decision of the Commissioner of Taxation covered by subsection 202FA(1) of the Income Tax Assessment Act 1936. This provision is amended so that it uses the same language as the ART Bill, and the reference to a provision of the AAT Act is changed to a reference to the corresponding provision of the ART Bill.
382. Item 288: Subsection 202FA(1)
1. This item maintains provisions under the AAT legislation that the Registrar of the Australian Business Register notify a person, whose interests are affected by a decision under section 202F of the Income Tax Assessment Act 1936, of their right to request a statement of reasons under clause 57 of the ART Bill. This item changes references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
383. Item 289: At the end of section 251QA
1. This item provides that the Taxation Division of the ART must review an application for review of any decision by a Tax Agents’ Board covered by section 251QA of the Income Tax Assessment Act 1936.
384. Item 290: Subsection 251QB(1)
1. This provision is redrafted to enhance ease of understanding, and is amended to replace the reference to the AAT Act with a reference to the ART Bill
385. Item 291: Subsection 265(4)
1. This provision is amended so that it replaces references to the officers of the AAT with references to the relevant officers of the ART.
387. Item 292: Subsection 34-33(4)
1. This item changes the reference to the AAT to a reference to the ART.
388. Item 293: Subsection 34-33(5)
1. This provision is replaced with a provision, of the same effect, with references to provisions of the AAT Act changed to references to the corresponding provisions of the ART Bill. This item maintains provisions under the AAT legislation that the Registrar of the Australian Business Register notify a person, whose interests are affected by a decision under section 34-30(1) of the Income Tax Assessment Act 1997, of their right to request a statement of reasons under clause 57 of the ART Bill.
1. This item changes the reference to the AAT to a reference to the ART and changes the reference in the heading to the AAT to a reference to the ART.
1. This item changes the reference to the AAT to a reference to the ART.
391. Item 296: Section 396-110
1. This item changes the reference to the AAT to a reference to the ART. This item also changes the reference in the heading to the AAT to a reference to the ART.
392. Item 297: Section 995-1 (definition of AAT)
1. With the repeal of the AAT Act (see clause 4 of this Bill), this definition is obsolete.
1. This defines ‘ART’.
395. Item 299: Subsection 80QC(8)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
396. Item 300:
Subsection 80QC(9)
397. Item 301:
Paragraph 103(1)(b)
1. These items change references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
399. Item 302: Subsection 39T(2)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
400. Item 303:
Subsection 39T(3)
401. Item 304:
Paragraph 39T(4)(b)
402. Item 305:
Paragraph 39U(3)(b)
403. Item 306:
Subsection 39V(1)
404. Item 307:
Subsection 39V(2)
1. These items change references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
406. Item 308: Subsection 67(2)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
407. Item 309: Subsection 67(3)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
408. Item 310: Subsections 67(4), (5) and (6)
1. This item inserts a new subsection 67(4) which requires that in reviewing decisions made under the Act, members of the ART (other than the President, an executive member or senior member) must have special knowledge or skill in relation to life insurance business or insurance business. This is necessary, given the technical nature of issues that may arise in the course of such reviews.
2. Subsection 67(5) presently requires that non-presidential members must not sit on an AAT panel if they are a director or employee of a life insurance or insurance business. As presidential members under the AAT Act are either judges or legal practitioners of some standing they either: (i) could not hold such positions, or (ii) would be expected to disqualify themselves from sitting. The practical effect was that no member would sit on a panel if they were a director or employee of a life insurance or insurance business. This arrangement is to be continued in relation to the ART so this item changes the subsection to state that no member (including the President) should be able to sit if they are a director or employee of a life insurance or insurance business. Members will be required to disqualify themselves in such circumstances. This item also changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
3. Subsection 67(6) currently provides that a stay order under section 41(2) of the AAT Act can only be given by the Tribunal. Without that restriction, such an order could also be given by a presidential member. Clause 121(2) of the ART Bill, the corresponding provision to section 41(2), provides that only the Tribunal can give such directions. Accordingly, subsection 67(6) is no longer required.
409. Item 311: Paragraph 67(7)(b)
1. This item changes the reference to provisions of the AAT Act to a reference to the corresponding provision of the ART Bill.
411. Item 312: Subsection 63(8)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
412. Item 313: Subsection 63(9)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
413. Item 314: Subsections 63(10), (11), (12) and (13)
1. These provisions are amended to require that the ART be constituted in a particular way when reviewing decisions made under the Act. Given the technical nature of issues that may arise in the course of such reviews, it is necessary that the Tribunal be constituted by three members, one of whom is the President, an executive member or a senior member. It is also important that the two other members of the Tribunal have special knowledge or skill in relation to insurance business.
2. Subsection 63(12) presently requires that non-presidential members must not sit on an AAT panel if they are a director or employee of a life insurance or insurance business. As presidential members under the AAT Act are either judges or legal practitioners of some standing they either: (i) could not hold such positions, or (ii) would be expected to disqualify themselves from sitting. The practical effect was that no member would sit on a panel if they were director or employee of a life insurance or insurance business. This arrangement is to be continued in relation to the ART so this item changes the subsection to state that no member (including the President) should be able to sit if they are a director or employee of a life insurance or insurance business. Members will be required to disqualify themselves in such circumstances. This item also changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
3. Subsection 63(13) provides that a stay order under section 41(2) of the AAT Act can only be given by the Tribunal. Without that restriction, such an order could also be given by a presidential member. Clause 121(2) of the ART Bill, the corresponding provision to section 41(2), provides that only the Tribunal can give such directions. Accordingly, subsection 63(13) is no longer required.
414. Item 315:
Paragraph 63(14)(b)
415. Item 316:
Subparagraph 93(6)(c)(ii)
1. These items change references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
417. Item 317: Paragraph 3(2A)(b)
1. This item repeals this provision and does not substitute a reference to the President of the ART. Unlike the AAT Act, there is no requirement in the ART Bill that the President of the new tribunal—or any other member—be a judge. This is in keeping with the government’s goal of creating an informal, non-legalistic environment in the new tribunal. Following passage of the ART Bill the remuneration of the President of the Tribunal will be determined by the Remuneration Tribunal.
419. Item 318: Paragraphs 28(3)(a) and (b)
1. Subclause 141(1) of the ART Bill provides for the form and manner for making applications to the Tribunal.
420. Item 319: Subsection 29(2)
1. Subsection 29(2) of the Act exempts the application of certain provisions of the AAT Act to Ministerial consideration of a pre-acquisition declaration (that is, a declaration that an acquiring authority is considering acquisition of an interest in land, other than a mortgage interest, for a public purpose). These provisions relate to who may apply for a review of a decision, the manner of applications to the Tribunal, the operation and implementation of a decision that is subject to review and the review powers of the Tribunal. This item changes references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
421. Item 320: Paragraph 31(1)(g)
1. Subsection 31(1) of the Act specifies the matters that are relevant to a review by the AAT of a pre-acquisition declaration. (A ‘pre-acquisition declaration’ is explained in paragraph 1 of this memorandum.) Paragraph 31(1)(g) covers the applicant obtaining a statement of reasons for a decision under provisions of the AAT Act, the lodgement with the Tribunal of reasons by the decision maker for the purpose of review and the power of the Tribunal to obtain additional information for the purpose of review. This item changes references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
422. Item 321: Subsection 32(1)
1. For the purposes of hearing an application for review of a pre-acquisition declaration, if it appears that the application is frivolous or vexatious, an executive member may dismiss the application, or a non-executive member may adjourn the hearing so that it may be presided over by an executive member. The intention of this sub-section is that only a most senior member of the Tribunal should dismiss an application for review assessed to be frivolous or vexatious. This reflects the special nature of property rights in our society, and a concern that access to review not be restricted except by a suitably senior member of the Tribunal.
423. Item 322: Subsection 32(2)
1. An executive member presiding at the resumption of the adjourned hearing may dismiss the application if he or she considers that it is frivolous or vexatious.
424. Item 323: Subsection 32(3) (definition of presidential member)
1. With the repeal of the AAT Act (see clause 4 of this Bill), this definition is obsolete.
425. Item 324: Subsection 32(3)
1. In this section, executive member has the meaning given by clause 6 of the ART Bill.
426. Item 325: Subsection 71(2)
1. This provision is amended to refer to the appropriate subsection.
427. Item 326: Subsection 71(3)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
428. Item 327: Subsection 81(2)
1. This provision is amended to refer to the appropriate subsection.
429. Item 328: Subsection 81(3)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
430. Item 329: Subsection 99(2)
1. This provision is amended to refer to the appropriate subsection.
431. Item 330: Subsection 99(3)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
432. Item 331: Subsection 107(2)
1. This provision is amended to refer to the appropriate subsection.
433. Item 332: Subsection 107(3)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
434. Item 333: Subsection 131(1)
1. This provision is replaced with a provision, of the same effect, that uses the same language as the ART Bill and changes references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill. The heading of the section is also amended to reflect these changes.
435. Item 334: Subsection 131(3)
1. This provision is amended so that it uses the same language as the ART Bill.
437. Item 335: Subsection 236(9)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
438. Item 336: Subsection 236(10)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
1. This new section requires that the ART be constituted in a particular way when reviewing decisions made under the Act. Given the technical nature of issues that may arise in the course of such reviews, it is necessary that the Tribunal be constituted by three members, one of whom is the President, an executive member or a senior member. It is also important that the two other members of the Tribunal have special knowledge or skill in relation to life insurance business.
2. Subsection 237(3) currently requires that non-presidential members must not sit on an AAT panel if they are a director or employee of a life insurance or insurance business. As presidential members under the AAT Act are either judges or legal practitioners of some standing they either: (i) could not hold such positions, or (ii) would be expected to disqualify themselves from sitting. The practical effect was that no member would sit on a panel if they were a director or employee of a life insurance or insurance business. This arrangement is to be continued in relation to the ART so the substituted subsection states that no member (including the President) should be able to sit if they are a director or employee of a life insurance or insurance business. Members will be required to disqualify themselves in such circumstances.
3. Subsection 237(4) currently provides that a stay order under section 41(2) of the AAT Act can only be given by the Tribunal. Without that restriction, such an order could also be given by a presidential member. Clause 121(2) of the ART Bill, the corresponding provision to section 41(2), provides that only the Tribunal can give such directions. Accordingly, subsection 237(4) is no longer required and is not replicated in the new section 237.
4. The new section 237 is otherwise the same as the existing section, amended so that it uses the same language as the ART Bill, and by replacing references to provisions of the AAT Act with references to the corresponding provisions of the ART Bill.
442. Item 338: Subsection 37(7)
1. This item changes the reference to the AAT Act to a reference to the ART Bill. The provision also reflects that ‘orders’ (within the meaning of this legislation) are better characterised as subordinate legislation for the purposes of the ART Bill.
444. Item 339: Paragraph 40(1)(b)
1. This item changes references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
446. Item 340: Paragraph 34(3)(b)
1. This item changes references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
448. Item 341: Subsection 14A(2)
1. This provision is replaced with a provision that requires that the ART is constituted at a senior level when reviewing decisions made under subsection 14A(1) of the Narcotic Drugs Act 1967. Review of these decisions involves complex legal and technical matters, with implications that go beyond the consideration of the individual applicant to wider considerations of public health and safety and government policy. In addition, considerable commercial consequences are often at stake for applicants seeking review of these decisions. (There was an analogous constitution requirement for review of such decisions by the AAT, but this has had to be amended because the prescribed AAT membership has no direct equivalent in the ART.)
1. This item changes the reference to section 36 of the AAT Act to a reference to clause 101 of the ART Bill, but limits the application of clause 101 so that only the Attorney-General of the Commonwealth can issue a public interest certificate under clause 101 in response to a request for information by the National Crime Authority under section 20 of the National Crime Authority Act 1984.
2. In the absence of this limitation, clause 101 would expand the number of persons who can give a public interest certificate in these circumstances to include the Attorney-General of a State, the Australian Capital Territory or the Northern Territory, in addition to the Attorney-General of the Commonwealth. This limitation ensures that the classes of information or documents that would be precluded from disclosure to the National Crime Authority are not expanded.
452. Item 343: Part VIIA (heading)
1. This item changes the reference in the heading to the AAT to a reference to the ART.
453. Item 344: Paragraph 105AD(3)(e)
1. This item changes references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
455. Item 345: Paragraph 377M(2)(b)
1. This item changes references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
457. Item 346: Section 406 (definition of decision) (note)
1. This item repeals a note which is obsolete following the repeal of the AAT Act.
458. Item 347: Paragraph 407(6)(c)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
1. The Commonwealth Ombudsman can investigate the administrative actions of officers of Commonwealth Departments and prescribed authorities. The AAT is not a prescribed authority, because it can include judges among its members and it would be inappropriate for the Ombudsman to investigate the actions of judicial officers. However, the AAT Registrar is a prescribed authority. Accordingly, the Ombudsman can investigate only the administrative actions of the Registrar of the AAT and his or her staff.
2. It is the Government’s intention that the ART will be a less formal and court-like body. The ART will not be required, or expressly permitted, by the ART Bill to be constituted by, or to include among its members, a person who is a judge. Accordingly, the distinction between the AAT and other Commonwealth authorities that justifies the limitation of the Ombudsman’s jurisdiction to investigate the actions of members of the AAT will cease to exist. The Ombudsman will therefore have jurisdiction to investigate the administrative actions of the ART.
460. Item 348: Subsection 3(1) (paragraph (d) of the definition of chief executive officer of a court or tribunal)
1. Paragraph 3(1)(d) of the definition ‘chief executive officer of a court or tribunal’ defines that expression to mean the Registrar of the AAT. The effect of this provision is that the Ombudsman is allowed to investigate complaints about the administrative actions of the Registrar and staff of the AAT. Other provisions in the Ombudsman Act, such as paragraph (a) of the definition of ‘prescribed authority’ and subsection 3(15), however, make it clear that the Ombudsman is not able to investigate complaints about the President and members of the AAT.
2. It is intended that the President and members of the ART, as well as the Registrar and staff, will be subject to the Ombudsman’s jurisdiction. Unlike the AAT, the ART will be a ‘prescribed authority’ as defined in paragraph (a) of the definition of that term in subsection 3(1) of the Ombudsman Act, one effect of which will be to allow the Ombudsman to investigate complaints about members of, or persons employed in, the ART. Accordingly, it is unnecessary to amend paragraph 3(1)(d) of the definition of ‘chief executive officer of a court or tribunal’, and this item repeals the paragraph.
461. Item 349: After subsection 3(15)
1. This item inserts a new subsection 3(15A) which provides that subsections 3(14) and (15) do not apply in relation to the ART.
2. Subsections 3(14) and (15) clarify the way in which the Ombudsman Act operates in relation to certain persons employed in courts and tribunals. Subsection 3(14) provides that the officers and members of registry staff of a tribunal are taken to be members of the staff of the chief executive officer of the tribunal. Subsection 3(15) provides that a reference to an officer of a tribunal does not include a member of a tribunal.
3. To avoid confusion and ensure that the President, members, Chief Executive Officer and staff of the ART will be within the Ombudsman’s jurisdiction, new subsection 3(15A) provides that neither subsection 3(14) nor 3(15) apply in relation to the ART.
462. Item 350: Paragraph 3(18)(b)
1. Various provisions in the Ombudsman Act allow, or require, the Ombudsman to inform the ‘responsible Minister’ about investigations he or she is conducting into the actions of an agency. The responsible Minister in most cases is the Minister with portfolio responsibility for the particular agency. However, paragraph 3(18)(b), read with subsections 3(16) and (17), provides that the ‘responsible Minister’ in relation to matters concerning the Registrar of the AAT is the President of the AAT.
2. This item repeals paragraph 3(18)(b) because it will become redundant on the repeal of the AAT Act. The ‘responsible Minister’ for the ART for the purposes of the various provisions in the Ombudsman Act referred to above is the Attorney-General.
463. Item 351: Paragraph 16(5)(b)
1. Section 16 of the Ombudsman Act allows the Ombudsman in certain circumstances to furnish a copy of a report of an investigation to the Prime Minister. However, paragraph 16(5)(b) provides in effect that an Ombudsman report under section 16 relating to the Registrar of the AAT is to be provided to the President of the AAT, rather than to the Prime Minister. It is intended that, in future, reports of investigations into the ART would be furnished to the Prime Minister.
2. Paragraph 16(5)(b) will become redundant on the repeal of the AAT Act, and this item repeals that paragraph.
465. Item 352: Subsection 67(1)
1. This item provides that where a person whose interests are affected by a Ministerial decision of a kind listed in section 66 of the Ozone Protection Act 1989 has been given a written notice of that decision, the notice must:
• include a statement of the person’s right to appeal to the ART if they are dissatisfied with the decision; and
• include a statement to the effect that the person may request the decision maker to give him or her a statement of reasons for the decision.
2. This item provides that a decision-maker does not have to give a statement of reasons to a person who requests one, if subclause 57(3) of the ART Bill applies. Subclause 57(3) applies where:
• the person has already been given a statement of reasons;
• the decision itself sets out the things required to be in a statement of reasons;
• the person was given a document setting out the terms of the decision and did not request a statement of reasons within 28 days of receiving that document; or
• the person was not given written notice of the terms of the decision and did not request a statement of reasons within a reasonable time after the decision was made.
467. Item 353: Subsection 11A(7)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
469. Item 354: After subsection 40C(2)
1. This item provides that the Taxation Division of the ART must review an application for review of decisions of the Commissioner of Taxation covered by section 40C(1) of the Pay-roll Tax Assessment Act 1941.
470. Item 355: Subsection 70(4)
1. This provision is amended so that it replaces references to the officers of the AAT with references to the relevant officers of the ART.
472. Item 356: Subsection 69(4)
1. This provision is amended so that it replaces references to the officers of the AAT with references to the relevant officers of the ART.
474. Item 357: Subsection 12(7)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
476. Item 358:
Subsection 3(1) (definition of
AAT)
477. Item 359:
Subsection 3(1) (definition of AAT Act)
1. With the repeal of the AAT Act (see clause 4 of this Bill), these definitions are obsolete.
478. Item 360: Subsection 3(1)
1. This defines ‘ART’.
479. Item 361: Subsection 3(1)
1. This defines ‘ART Act’.
480. Item 362:
Subsection 19(7)
(note)
481. Item 363:
Subsection 19(10)
(note)
482. Item 364:
Subsection 19(11)
(note)
483. Item 365:
Subsection 21(5)
(note)
484. Item 366:
Subsection 30(5)
(note)
485. Item 367:
Subsection 31(6)
(note)
486. Item 368:
Subsection 34(1)
(note)
487. Item 369:
Subsection 37(1)
(note)
488. Item 370:
Subsection 38(5)
(note)
489. Item 371:
Subsection 39(2)
(note)
490. Item 372:
Subsection 39(3)
1. These items change references to the AAT to references to the ART.
491. Item 373: Subsection 39(5)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
492. Item 374:
Subsection 40(8)
(note)
493. Item 375:
Subsection 40(12)
(note)
494. Item 376:
Subsection 41(1)
(note)
495. Item 377:
Subsection 44(12)
(note)
496. Item 378:
Paragraph 48(2)(b)
497. Item 379:
Subsection 49(3)
(note)
498. Item 380:
Paragraph 50(6)(a)
1. These items change references to the AAT to references to the ART.
499. Item 381: Subsection 50(7)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
500. Item 382:
Subsection 50(10)
(note)
501. Item 383:
Subsection 77(1)
1. These items change references to the AAT to references to the ART.
502. Item 384: Subsection 77(2)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
503. Item 385: Subsection 77(3)
1. This item changes references to the AAT to references to the ART.
504. Item 386: Subsection 77(4) (definition of decision)
1. This item changes the reference to the AAT Act to a reference to the ART Act.
506. Item 387: Subsection 29(6)
1. This item changes the reference to the AAT Act to a reference to the ART Bill. The provision also reflects that ‘orders’ (within the meaning of this legislation) are better characterised as subordinate legislation for the purposes of the ART Bill.
508. Item 388: Subsection 31(6)
1. This item changes the reference to the AAT Act to a reference to the ART Bill. The provision also reflects that ‘orders’ (within the meaning of this legislation) are better characterised as subordinate legislation for the purposes of the ART Bill.
510. Item 389: Subsection 61(3)
1. This provision is replaced with a provision that requires that the ART is constituted at a senior level when reviewing declarations or decisions of the Privacy Commissioner under subsection 61(1). This requirement reflects the fact that decisions of a senior statutory officer should only be reviewed by members with appropriate seniority. (There was an analogous constitution requirement for review of such declarations or decisions by the AAT, but this has had to be amended because the prescribed AAT membership has no direct equivalent in the ART.)
512. Item 390: Section 19-10 (note)
1. This note is replaced with a note, of the same effect, with references to provisions of the AAT Act changed to references to the corresponding provisions of the ART Bill.
514. Item 391: Subsection 24A(4) (paragraph (b) of the definition of decision to which this section applies)
1. This item inserts a reference to the ART. The reference to the AAT is retained to ensure that this provision applies to past decisions of the AAT.
516. Item 392: Section 5 (definition of AAT)
1. With the repeal of the AAT Act (see clause 4 of this Bill), this definition is obsolete.
1. This defines ‘ART’.
518. Item 394: Paragraph 116(4)(b)
1. This item changes the reference to the AAT to a reference to the ART.
519. Item 395: Paragraph 128E(5)(b)
1. This item changes the reference to a provision of the AAT Act to references to the corresponding provisions of the ART Bill.
520. Item 396: Subsection 231(7)
1. This item changes the reference to the AAT to a reference to the ART.
521. Item 397:
Paragraph 287(1)(b)
522. Item 398:
Paragraph 291(1)(a)
1. These items change references to the AAT Act to references to the ART Bill, and references to the AAT to references to the ART.
523. Item 399: Paragraph 291(1)(b)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
524. Item 400:
Section 292
525. Item 401:
Section 292A
526. Item 402:
Paragraph 292B(b)
527. Item 403:
Paragraph 3(2)(b) of Part 1 of the
Schedule
528. Item 404:
Paragraph 3(2)(c) of Part 1 of the
Schedule
529. Item 405:
Paragraph 2(1)(c) of Part 2 of the
Schedule
530. Item 406:
Subclause 7(1) of Part 2 of the Schedule
1. These items change references to the AAT (including references in headings) to references to the ART.
531. Item 407: Subclause 7(3) of Part 2 of the Schedule
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
532. Item 408:
Subclause 7(4) of Part 2 of the
Schedule
533. Item 409:
Subclause 7(5) of Part 2 of the
Schedule
534. Item 410:
Subclause 8(3) of Part 2 of the
Schedule
535. Item 411:
Subclause 9(4) of Part 2 of the Schedule
1. These items change references to the AAT to references to the ART.
537. Item 412:
Part 3 of clause 2 of Schedule 1 (table row relating to the
President of the Administrative Appeals
Tribunal)
538. Item 413:
Clause 3 of
Schedule 1
539. Item 414:
Clause 5 of
Schedule 1
540. Item 415:
Part 3 of clause 3 of Schedule 2 (table row relating to the
Deputy President (non-judicial), Administrative Appeals Tribunal)
1. These items repeal provisions that have been made redundant by Remuneration Tribunal Determination number 13 of 1999.
542. Item 416: Subsection 189(8)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
543. Item 417: Subsection 189(9)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill and the heading to the subsection is amended to reflect this change.
545. Item 418:
Subsection 4(1) (definition of proceeding under Part
VI)
546. Item 419:
Subsection 4(12)
1. These items repeal the definition of ‘proceeding under Part VI’. This is because some matters under Part VI are reconsiderations and are not necessarily instances of review. All references to review by the AAT are amended for consistency with the ART Bill.
547. Item 420: Paragraph 26(4)(b)
1. This provision is replaced with a provision, of the same effect, that uses the same language as the ART Bill.
548. Item 421: Subsection 60(2)
1. This provision is amended so that it uses the same language as the ART Bill.
549. Item 422: Subsection 64(3)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
550. Item 423: Subsections 65(2), (3) and (4)
1. This item repeals provisions relating to modifications of the AAT Act and replaces them with a provision clarifying that, for the purposes of a review of a decision under section 64, the ART may sit either within or outside of Australia.
551. Item 424:
Paragraph 66(1)(a)
552. Item 425:
Paragraph 66(1)(a)
553. Item 426:
Paragraph 66(1)(b)
1. These provisions are amended so that they use the same language as the ART Bill.
554. Item 427: Subsection 66(1)
1. This provision is amended to remove language that is inconsistent with the language of the ART Bill.
555. Item 428: Subsection 66(2)
1. This provision is amended so that it uses the same language as the ART Bill.
556. Item 429: Subsection 67(1)
1. This provision is replaced with a provision, of the same effect, that uses the same language as the ART Bill.
557. Item 430:
Subsection 67(2)
558. Item 431:
Subsection 67(2)
559. Item 432:
Subsection 67(8)
560. Item 433:
Subsection 67(8)
561. Item 434:
Subsection 67(8A)
562. Item 435:
Subsection 67(8B)
563. Item 436:
Subsection 67(8B)
564. Item 437:
Subsection 67(9)
565. Item 438:
Subsection 67(11)
566. Item 439:
Subsection 67(11)
567. Item 440:
Subsection 67(12)
568. Item 441:
Subsection 67(12)
569. Item 442:
Subsection 67(13)
1. These provisions are amended so that they use the same language as the ART Bill.
570. Item 443: Subsection 67(13)
1. This provision is amended so that it replaces references to the officers of the AAT with references to the relevant officers of the ART.
571. Item 444: Subsection 67(14)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill. This provision is also amended so that it uses the same language as the ART Bill.
572. Item 445:
Paragraph 107G(3)(b)
573. Item 446:
Subsection 107K(4)
574. Item 447:
Subsection 107L(9)
575. Item 448:
Subsection 107L(10)
576. Item 449:
Subsection 107M(11)
577. Item 450:
Subsection 107M(12)
578. Item 451:
Subsection 107Z(5)
579. Item 452:
Subsection 107ZA(6)
580. Item 453:
Subsection 107ZB(9)
581. Item 454:
Paragraph 108H(4)(b)
582. Item 455:
Subsection 108L(4)
583. Item 456:
Subsection 108M(4)
584. Item 457:
Subsection 108W(7)
1. These provisions are amended so that they use the same language as the ART Bill.
586. Item 458: Section 3 (definition of AAT)
1. With the repeal of the AAT Act (see clause 4 of this Bill), this definition is obsolete.
1. This defines ‘ART’.
1. This item changes the reference to the AAT to a reference to the ART.
589. Item 461: At the end of section 74
1. This item adds a provision to section 74 which clarifies that clause 57 of the ART Bill applies as if a reference to a person whose interests are affected by the decision were a reference to the employer.
2. This item also adds ‘etc.’ to the end of the heading to section 74 to reflect the breadth of the amended section’s operation.
590. Item 462: Part 6 (heading)
1. This provision is amended so that it uses the same language as the ART Bill.
591. Item 463:
Subsection 76(1) (definition of AAT
Act)
592. Item 464:
Subsection 76(1) (definition of AAT extension
application)
1. With the repeal of the AAT Act (see clause 4 of this Bill), these definitions are obsolete.
593. Item 465: Subsection 76(1)
1. This defines ‘ART Act’.
594. Item 466: Subsection 76(1)
1. This item inserts a definition of an ART extension application.
595. Item 467: Subsection 76(1) (definition of decision)
1. This item changes the reference to the AAT to a reference to the ART.
596. Item 468:
Subsection 76(2)
597. Item 469:
Subsection 78(1)
1. These provisions are amended so that they use the same language as the ART Bill.
1. This item changes the reference to the AAT to a reference to the ART.
599. Item 471: At the end of section 80
1. This item adds a provision to section 80 which clarifies that clause 57 of the ART Bill applies such that a reference to a person whose interests are affected by the decision were a reference to the employer.
2. This item also adds ‘etc.’ to the end of the heading to section 80 to reflect the breadth of the amended section’s operation.
600. Item 472: Paragraph 87(c)
1. This item changes references to the AAT to references to the ART.
601. Item 473: Subsection 88(1)
1. This item changes references to the AAT (including the reference in the heading) to references to the ART. This item also adds ‘etc.’ to the end of the heading to section 88 to reflect the breadth of the amended section’s operation.
602. Item 474: Subsection 88(2)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
603. Item 475: At the end of section 88
1. This item adds a provision to section 88 which clarifies that clause 57 of the ART Bill applies such that a reference to a person whose interests are affected by the decision were a reference to the claimant.
604. Item 476: Division 3 of Part 6 (heading)
1. This item changes the reference to the AAT to a reference to the ART and amends the provision so that it uses the same language as the ART Bill. The item also adds ‘etc.’ to indicate that there are a range of decisions which are subject to review.
605. Item 477: Subsection 89(1)
1. This item changes references to the AAT (including the reference in the heading) to references to the ART.
606. Item 478: Subsection 89(2)
1. This item clarifies that, for the purposes of the review of a decision under section 88, the ART may sit either within or outside of Australia.
607. Item 479: Subsection 89(3)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
608. Item 480: Paragraph 89(4)(a)
1. This item is amended so that it refers to the ART instead of the AAT. This item also changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
609. Item 481: Paragraph 89(4)(c)
1. This provision is replaced with a provision, of the same effect, with references to provisions of the AAT Act changed to references to the corresponding provisions of the ART Bill.
610. Item 482: Paragraph 89(4)(d)
1. This provision is replaced with a provision, of the same effect, that uses the same language as the ART Bill.
611. Item 483: Subsection 90(1)
1. This provision is replaced with a provision, of the same effect, that uses the same language as the ART Bill. This item also changes the reference to the AAT in the heading to a reference to the ART.
612. Item 484: Subsection 90(2)
1. This provision is amended so that it uses the same language as the ART Bill.
613. Item 485: Subsection 90(2A)
1. This item changes the reference to the AAT to a reference to the ART, and amends this provision so that it uses the same language as the ART Bill.
614. Item 486: Subsection 90(3)
1. This item changes references to the AAT to references to the ART.
615. Item 487: Subsection 91(1)
1. This provision is replaced with a provision, of the same effect, that uses the same language as the ART Bill. This item also changes the reference to the AAT in the heading to a reference to the ART.
616. Item 488:
Subsection 91(2)
617. Item 489:
Subsection 91(2)
1. These provisions are amended so that they use the same language as the ART Bill.
618. Item 490:
Paragraph 91(3)(e)
619. Item 491:
Paragraph 91(4)(e)
620. Item 492:
Subsection 91(6)
1. These items change references to the AAT to references to the ART.
621. Item 493: Subsection 92(1)
1. This provision is amended so that it uses the same language as the ART Bill. This item also changes the reference to the AAT in the heading to a reference to the ART.
622. Item 494: Subsection 92(1)
1. This item changes references to the AAT to references to the ART.
623. Item 495: Subsection 92(1)
1. This provision is amended so that it uses the same language as the ART Bill.
624. Item 496: Subsection 92(2)
1. This item changes references to the AAT to references to the ART.
625. Item 497: Subsection 92(2)
1. This provision is amended so that it uses the same language as the ART Bill.
626. Item 498: Subsection 92(3)
1. This item changes references to the AAT to references to the ART.
627. Item 499: Subsection 92(4)
1. This provision is amended so that it uses the same language as the ART Bill.
628. Item 500: Subsection 92(4)
1. This item changes references to the AAT to references to the ART.
629. Item 501:
Subsection 92(4)
630. Item 502:
Subsection 92(5)
1. These provisions are amended so that they use the same language as the ART Bill.
631. Item 503: Subsection 92(5)
1. This item changes references to the AAT to references to the ART.
632. Item 504: Subsection 92(5)
1. This provision is amended so that it uses the same language as the ART Bill.
633. Item 505: Subsection 92(6)
1. This provision is replaced with a provision, of the same effect, with references to the AAT changed to references to the ART. This provision also replaces references to the officers of the AAT with references to the relevant officers of the ART.
634. Item 506: Subsection 92(7)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
636. Item 507: Paragraph 76(1)(b)
1. This item changes references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill. The effect of the amendment is to provide that a decision-maker does not have to give a statement of reasons to a person who requests one, if subclause 57(3) of the ART Bill applies. Subclause 57(3) applies where:
• the person has already been given a statement of reasons;
• the decision itself sets out the things required to be in a statement of reasons;
• the person was given a document setting out the terms of the decision and did not request a statement of reasons within 28 days of receiving that document; or
• the person was not given written notice of the terms of the decision and did not request a statement of reasons within a reasonable time after the decision was made.
638. Item 508: Subsection 38(2)
1. This item changes the reference to a provision of the AAT Act to references to the corresponding provisions of the ART Bill.
640. Item 509: At the end of section 83
1. This provides that the Taxation Division of the ART must review an application for review of a decision of the Commissioner of Taxation that has been confirmed or varied under subsection 82(4) of the Small Superannuation Accounts Act 1995.
641. Item 510: Subsection 84(1)
1. This item changes the reference in the heading to the AAT Act to a reference to the ART Bill.
2. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
642. Item 511: Subsection 84(2)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill. This item also amends the heading to the subsection to reflect this change.
644. Item 512: After
subsection 20(2)
645. Item 513:
Subsection 20(3)
1. These items provide that the Taxation Division of the ART must review an application for review of decisions of a Collector of Customs, covered by section 20 of the Spirits Act 1906.
647. Item 514: Paragraph 5C(e)
1. This item changes the reference to the AAT and the SSAT to a reference to the ART.
648. Item 515: Paragraph 12ZQ(2)(b)
1. This item changes references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
649. Item 516: Subsection 303(3)
1. This item changes references to the AAT and the SSAT (including the reference in the heading) to references to the ART.
650. Item 517: Subsection 303(5)
1. This item provides for repeal of the subsection, which becomes redundant because the ART Bill provides for review by the ART only, whereas the Student Assistance Act 1973 currently provides for both SSAT and AAT review.
651. Item 518: Subsection 303(6)
1. This provision is amended so that it replaces references to the officers of the AAT with references to the relevant officers of the ART. This item also amends the heading to the subsection to reflect this change.
652. Item 519:
Subsection 304(5)
653. Item 520:
Paragraph 308(1)(a)
1. These items replace references to the SSAT with references to the ART.
654. Item 521: Paragraph 308(1)(c)
1. This item provides for repeal of the paragraph, which becomes redundant because the ART Bill provides for review by the ART only, whereas the Student Assistance Act 1973 currently provides for both SSAT and AAT review.
655. Item 522: Division 2 of Part 9
1. This Division provided for review of decisions by the SSAT and is to be repealed because the ART Bill provides for review by the ART only, whereas the Student Assistance Act 1973 currently provides for both SSAT and AAT review.
656. Item 523: Division 3 of Part 9 (heading)
1. This item changes the reference to the AAT in the heading to a reference to the ART.
1. This item provides for repeal of the section and it’s replacement with new sections 324 and 324A. This is necessary because the ART Bill provides for review by the ART only, whereas the Student Assistance Act 1973 currently provides for both SSAT and AAT review. New section 324A preserves the intent of current section 313 (non-reviewable decisions) necessitated by the repeal of Division 2 of Part 9 by item 522.
660. Item 525: Division 4 of Part 9
1. This Division currently provides for modification of the AAT Act in connection with SSAT review and is to be repealed because the ART Bill provides for review by the ART only. Such modifications may also be inconsistent with the core provisions set out in subclause 7(3) of the ART Bill.
661. Item 526:
Paragraph 335(1)(c)
662. Item 527:
Subsection 335(4)
1. These items change references to the National Convenor of the SSAT to references to the executive member of the Income Support Division of the ART.
1. This paragraph omits reference to the position of the National Convener of the Social Security Appeals Tribunal and substitutes reference to the executive member of the Income Support Division of the ART. This item also amends the heading to the section to reflect this change.
665. Item 529: Subsection 154(7)
1. This provision is replaced with a provision that requires that the ART is constituted at a senior level when reviewing decisions made under subsection 154(6) of the Superannuation Act 1976. The nature of the classes of decision reviewable by the Tribunal, and the issues which may arise in the course of those reviews, make this amendment necessary. (There was an analogous constitution requirement for review of such decisions by the AAT, but this has had to be amended because the prescribed AAT membership has no direct equivalent in the ART.)
667. Item 530: Subsection 344(9)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
668. Item 531: Subsection 344(10)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill. This item also amends the heading to the subsection to reflect this change.
669. Item 532: Paragraph 344(11)(b)
1. This item changes the reference to a provision of the AAT Act to references to the corresponding provisions of the ART Bill.
671. Item 533: Subsection 16(7)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
2. This item provides that the Taxation Division of the ART must review an application for review of decisions of the Commissioner of Taxation that have been confirmed or varied under subsection 16(3) of the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987.
672. Item 534: Subsection 16(8)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
673. Item 535: Subsection 16(9)
1. This provision is amended so that it uses the same language as the ART Bill.
674. Item 536: Paragraph 16(9)(b)
1. This item changes the references to provisions of the AAT Act to a reference to the corresponding provision of the ART Bill.
676. Item 537: After subsection 4(7)
1. This item provides that the Taxation Division of the ART must review an application for review of a decision of the Commissioner of Taxation to allow or not to allow a pool purchaser to make a declaration under section 4 of Swimming Pools Tax Refund Act 1992.
678. Item 538:
Subparagraph 557(1)(b)(ii)
679. Item 539:
Paragraph 561(1)(b)
1. These items change references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
681. Item 540: Subsection 5(1) (definition of nominated AAT member)
1. This item repeals the definition of ‘nominated AAT member’. Item 541 inserts a new definition of ‘nominated ART member’.
682. Item 541: Subsection 5(1)
1. This item defines a nominated ART member for the purposes of the Telecommunications (Interception) Act 1979.
683. Item 542: Subsection 6DA(1)
1. This item amends subsection 6DA(1) to enable the Minister to nominate a member of the ART to issue warrants under Part VI of the Telecommunications (Interception) Act 1979. This item also changes the reference to the AAT in the heading to a reference to the ART.
684. Item 543: Subsection 6DA(2)
1. This item amends subsection 6DA(2) to make the nomination of a ART member to issue warrants under Part VI of the Telecommunications (Interception) Act 1979 conditional upon the member being a legal practitioner of a court of Australia for a period of not less than 5 years.
685. Item 544: Paragraph 6DA(3)(a)
1. This item amends paragraph 6DA(3)(a) to provide that a nomination of an ART member ceases to have effect when that person ceases to be a member of the Tribunal.
686. Item 545:
Subsection 6DA(4)
687. Item 546:
Section 6H
688. Item 547:
Subsection 7(7)
689. Item 548:
Subsection 39(1)
690. Item 549:
Section 43
691. Item 550:
Subsection 44(1)
692. Item 551:
Paragraph 44(2)(b)
693. Item 552:
Section 45
694. Item 553:
Section 45A
695. Item 554:
Subsection 46(1)
696. Item 555:
Subsection 46(2)
697. Item 556:
Section 46A
698. Item 557:
Paragraphs 48(3)(a), (b) and
(c)
699. Item 558:
Paragraph 48(3)(d)
700. Item 559:
Subsection 48(4)
1. These items change references to ‘nominated AAT member’ to references to ‘nominated ART member’.
701. Item 560: Subsection 48(5)
1. This item changes the reference to ‘nominated AAT member issues’ to a reference to ‘nominated ART member issues’.
702. Item 561:
Paragraph 48(5)(b)
703. Item 562:
Subsections 49(1), (4)
and (7)
704. Item 563:
Subsections 50(1)
and (2)
705. Item 564:
Subsections 51(2) and (3)
1. These items change references to ‘nominated AAT member’ to references to ‘nominated ART member’.
706. Item 565: Subsection 52(1)
1. This item changes the reference to ‘nominated AAT member’ to a reference to ‘nominated ART member’. This item also changes the reference to the AAT in the heading to a reference to the ART.
707. Item 566:
Paragraphs 53(2)(a), (b) and
(c)
708. Item 567:
Paragraphs 81A(2)(b) and
(g)
709. Item 568:
Paragraphs 81C(2)(b) and
(g)
710. Item 569:
Paragraph 94A(3)(e)
1. These items change references to ‘nominated AAT member’ to references to ‘nominated ART member’.
711. Item 570: Paragraph 103(ab)
1. This item changes references to the AAT to references to the ART.
713. Item 571: Subsection 22(4)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
714. Item 572: Subsection 22(7)
1. The regulations may provide time limits for the making of applications to the Tribunal: see subclause 142(1) of the ART Bill.
716. Item 573: Subsection 60(5)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
717. Item 574: After subsection 60A(7)
1. This item is a procedural provision which ensures that that section 60A of the Therapeutic Goods Act 1989 applies despite clause 124 of the ART Bill.
719. Item 575:
Paragraph 10.85(1)(b)
720. Item 576:
Subsection 10.85(2)
1. These items change references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
722. Item 577: Paragraph 51A(9)(b)
1. This item changes references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
724. Item 578: Section 40 (note)
1. This note is replaced with a note, of the same effect, with references to provisions of the AAT Act changed to references to the corresponding provisions of the ART Bill.
726. Item 579: Subsection 30(3)
1. This provision is amended so that it replaces references to the officers of the AAT with a reference to the relevant officer of the ART.
727. Item 580:
Paragraph 33(3)(b)
728. Item 581:
Subsection 35(3)
729. Item 582:
Subsection 35(5)
1. These items change references to provisions of the AAT Act to references to the corresponding provisions of the ART Bill.
1. This Schedule makes consequential amendments of the Australian Security Intelligence Organisation Act 1979 (ASIO Act).
1. This item inserts a definition of ‘ART Act’ for the purposes of Part IV of the ASIO Act.
732. Item 2:
Section 35
733. Item 3:
Section 35
1. These items provide that, for the purposes of Part IV of the ASIO Act, the terms ‘member’ and ‘President’ have the same meaning as in the ART Bill.
734. Item 4: Section 35 (definition of Tribunal)
1. This item amends the definition of ‘Tribunal’ to mean the ART, replacing the AAT.
735. Item 5: Paragraph 38(2)(b)
1. This item inserts a new paragraph 38(2)(b) to adopt terminology which is clearer and more consistent with new section 101 of the ART Bill included in Schedule 1 to the ASIO Act.
1. This new section provides that Subdivision B of Division 1 of Part 4 of the ART Bill does not apply to the making of an adverse or qualified security assessment. That Subdivision is excluded because Part IV of the ASIO Act deals with giving notice of the making of such assessments and related matters.
1. This item substitutes a new subsection 54(2). The repealing of the former subsection 54(2) means that the right of a person to apply for second-tier review of a finding of the Tribunal in respect of a security assessment will be governed by the general provisions at Division 2 of Part 4 of the ART Bill. New subsection 54(2) provides that that the assessment must be reviewed in the Commercial and General Division of the Tribunal, which for that purpose is to be called the Security Appeals Division.
1. This new section provides for the addition of Schedule 1 which modifies the application of the ART Bill in relation to the review of an assessment by the Security Appeals Division.
1. Division 2 of Part 8 of the ART Bill does not apply to a review carried out by the Tribunal under this section. The Minister is to deal with the Tribunal findings as set out in this section.
743. Item 1: At the end of the Act
1. Item 1 adds a new Schedule 1 to the end of the Australian Security Intelligence Organisation Act 1979 (ASIO Act). The new Schedule sets out modifications of the ART Bill applicable, in accordance with the new section 54A of the ASIO Act (inserted by item 8 of Schedule 4), for the purpose of review by the ART of security assessments made under the Act.
2. The clauses of the new Schedule are explained below.
745. Clause 1: Subdivision B of Division 1 of Part 4
1. This clause disapplies Subdivision B of Division 1 of Part 4 of the ART Bill which deals with giving notice of a notifiable decision, the provision of statements of reasons and related matters. The relevant rights and procedures connected with initiating a review of an adverse or qualified security assessment are set out in Part IV of the ASIO Act.
1. This new section provides who may apply under subsection 54(1) of the ASIO Act for a first-tier review of a security assessment. A person in respect of whom a security assessment is made may apply for a review if that person is notified of the making of the assessment under section 38 of the ASIO Act.
1. This new section provides for who may apply for a second-tier review of a security assessment. If the Tribunal makes a first-tier decision, the applicant for the first-tier review may apply to the Tribunal for leave to have that assessment reviewed.
1. New section 69 sets out the composition of the Tribunal when conducting a review of a security assessment. The Tribunal must consist of three members. Those members are to be selected from the President, executive members or senior members. In addition, only an executive member or senior member who is assigned or appointed to the Security Appeals Division may be a member of the panel constituting the Tribunal for the purposes of a review under Part IV of the ASIO Act. Subsection 54(2) of the ASIO Act provides that the Commercial and General Division of the Tribunal is called the Security Appeals Division for the purpose of reviewing a security assessment.
2. None of the members must be, or have been, the Director-General of Security or an officer, employee or agent of the Australian Security Intelligence Organisation.
3. New subsection 69(5) provides that in particular situations the Tribunal must include at least one member with specified experience or knowledge.
4. Provision is made for situations where one of the members has ceased to be available before a review is completed.
752. Clause 5: Sections 76 to 82
1. Clauses 76 to 82 of the ART Bill are disapplied for the purposes of a review under Part IV of the ASIO Act. Three new sections are inserted in their place, for the purposes of such a review.
1. The Tribunal must give a copy of the application, and of the statement lodged with the application, to the Director-General of Security and to the Commonwealth agency to which the assessment was given.
1. If the Attorney-General has given a certificate in accordance with paragraph 38(2)(b) of the ASIO Act, the Director-General of Security must, within 30 days after receiving notice of the application, give the Tribunal a copy of the certificate, together with a copy of the whole assessment. The Tribunal must not, at any time, tell the applicant of the existence of, or permit the applicant to have access to, any copy or particulars of the certificate or any matter to which the certificate relates.
1. The Director-General of Security must give the Tribunal all relevant information available to the Director-General, whether favourable or unfavourable to the applicant.
1. The Director-General of Security and the applicant are the participants in the review.
758. Clause 7: Sections 85 to 87
1. Clauses 85 to 87 of the ART Bill are disapplied for the purposes of a review under Part IV of the ASIO Act.
759. Clause 8: After section 93
1. The presiding member may at any time require either or both of the participants to appear or be represented before the member for the purpose of identifying the matters in issue in the review or otherwise facilitating the conduct of the review.
761. Clause 9: After section 94
1. New section 94A sets out procedures for the taking of evidence.
1. When the Tribunal conducts a review of a security assessment the review is to be in private and, subject to this section, the Tribunal is to determine the people who may be present at any time.
2. The applicant and a person representing the applicant may be present when the Tribunal is hearing submissions made, or evidence given, by the Director-General of Security or the Commonwealth agency to which the assessment was given. However, the Minister administering the ASIO Act may sign a certificate stating that certain evidence proposed to be given or submissions proposed to be made are of such a nature that disclosure would be contrary to the public interest because it would prejudice security or defence of Australia. If such a certificate is given, the applicant must not be present when the evidence is given or the submissions are made and a person representing the applicant must not be present when the evidence is given or the submission is made unless the Minister consents. If a person representing the applicant is present, that person commits an offence punishable by 2 years imprisonment if he or she discloses to the applicant or any other person any evidence or submission to which a certificate relates.
3. The Director-General of Security, or his or her representative, and a person representing the Commonwealth agency to which the assessment was given may be present when the Tribunal is hearing the submissions made or evidence given by the applicant.
4. If the Director-General of Security so requests, the Tribunal must do all things necessary to ensure the identity of a person giving evidence on behalf of the Director-General of Security is not revealed.
1. The Tribunal is able to give directions prohibiting or restricting the publication evidence and other matters given to the Tribunal as well as all or part of the Tribunal’s findings and decision.
1. New section 101 sets out arrangements for protecting the confidentiality of certain documents and information given to the Tribunal. These arrangements apply in two situations. The first situation is where the Attorney-General certifies in accordance with paragraph 38(2)(b) of the ASIO Act that the disclosure of information would be contrary to the public interest because it would prejudice security. The arrangements in this section also apply if the Attorney-General certifies in accordance with paragraph 101(1)(b) that the disclosure of specified information, or the disclosure of any matter contained in a specified document, for the purpose of the review would be contrary to the public interest for any of the reasons set out in new subsection 101(2).
2. Where the Attorney-General has signed a relevant certificate, a person is not excused from disclosing the information, or giving the document, to the Tribunal if the person is required by or under the ART Bill to do so.
3. However, the Tribunal must, subject to this new section and clause 173 of the ART Bill (as modified by this Schedule), do all things necessary to ensure that the information is not disclosed to any person other than a member of the Tribunal as constituted for the review and that the document is returned to the person who gave it to the Tribunal.
4. The requirement that the Tribunal not disclose specified information to any person other than a member of the Tribunal does not apply in relation to disclosure to the Director-General of Security or his or her representative if the Attorney-General has signed a certificate pursuant to paragraph 38(2)(b) of the ASIO Act or pursuant to paragraph 101(1)(b) of the ART Bill and the reason is that set out in paragraph 101(2)(a).
5. Where the Attorney-General has signed a certificate pursuant to paragraph 101(1)(b) and the certificate does not state a reason mentioned in paragraph 101(2)(a) or (b), the member presiding may authorise disclosure of information, or of the contents of a document to the applicant if the member is satisfied that the interests of justice outweigh the reason stated by the Attorney-General. In making such a decision the presiding member must take as the basis of his or her consideration the principle that it is desirable for participants to be made aware of all relevant matters as well as have due regard to any reason specified in the certificate.
6. Information may be disclosed to a member of the Tribunal’s staff in the course of his or her duties.
7. The operation of any rules of law relating to the public interest that would otherwise apply to the disclosure of information or documents in the review are excluded, excepting as provided for in this section.
8. The Tribunal has a duty to ensure that information is not disclosed to a person contrary to the requirements of security even though there may be no relevant certificate.
9. This new section applies to copies of documents in respect of which the Attorney-General has issued a certificate under section 38(2)(b) or new paragraph 101(1)(b) of the ASIO Act.
768. Clause 12: Sections 102, 103 and 104
1. Clauses 102 to 104 of the ART Bill are disapplied for the purposes of a review under Part IV of the ASIO Act.
1. The Tribunal may end the review if the applicant fails, without reasonable excuse, to comply with a direction given or obligation imposed by the Tribunal.
771. Clause 14: Before section 133
1. At the end of the review, the Tribunal is required to make and record its findings. The Tribunal may state in the findings its opinion as to the correctness of, or justification for, any opinion, advice or information contained in the security assessment.
2. The Tribunal must not make a finding which would supersede information that is part of the security assessment unless the Tribunal believes the information is incorrect, incorrectly represented or could not reasonably be relevant to the requirements of security.
3. The Tribunal must give copies of its findings to the applicant, the Director-General of Security, the Commonwealth agency to which the assessment was given and the Attorney-General. However, the Tribunal may withhold all or a part of its findings, so far as they relate to a matter not disclosed to the applicant, from the applicant or from the Commonwealth agency to which the assessment was given.
4. Subject to any direction from the Tribunal, the applicant is entitled to publish the findings of the Tribunal so far as they have been given to him or her.
5. The Tribunal may give to the Director-General of Security its comments on matters relating to ASIO procedures or practices that have come to the Tribunal’s attention as a result of a review. A copy of those comments must be given to the Minister administering the ASIO Act.
773. Clause 15: After section 141
1. New section 141A sets out additional requirements for applications for first- or second-tier review of a security assessment.
1. Clause 148 of the ART Bill is disapplied for the purposes of a review under Part IV of the ASIO Act.
776. Clause 17: Subsection 151(2)
1. This clause replaces the reference to subsections 151(3) to (7) with a reference to subsections 151(3) and (7). This is because clause 18 disapplies subsections 151(4) to (6).
777. Clause 18: Subsections 151(3) to (6)
1. A person who is, or has been, a member, the Chief Executive Officer, staff or a consultant is not competent, and must not be required to give evidence in court or produce in court a document if a certificate under paragraph 38(2)(b) of the ASIO Act is in force certifying that the disclosure of the information would be contrary to the public interest.
778. Clause 19:
Paragraph 151(7)(a)
779. Clause 20:
Paragraphs 151(7)(b) and (c)
1. This clause omits the reference to subsection 101(3). The structure of the substituted section 101 (see clause 11 of this Schedule) makes this reference inapplicable.
780. Clause 21: After section 156
1. The Tribunal in certain circumstances may order all or part of the reasonable costs of the applicant to be paid by the Commonwealth.
782. Clause 22: Subsection 173(2)
1. This amendment is necessary to retain the requirement that the Tribunal must send certain documents to the Federal Court despite the operation of subsection 101(4) of the ART Bill (as modified by this Schedule).
783. Clause 23: Subsection 173(5)
1. This clause makes provision for a certificate issued under paragraph 38(2)(b) of the ASIO Act. This provision requires the Federal Court and the Federal Magistrates Court to do all that is necessary to protect certain information from disclosure to persons other than members of the Court as constituted for the purpose of the proceeding.
2. This Schedule makes consequential amendments of the Taxation Administration Act 1953 (TAA).
785. Item 1: Section 2 (definition of Small Taxation Claims Tribunal)
1. This item repeals the definition of ‘Small Taxation Claims Tribunal’.
786. Item 2: Section 2 (definition of Tribunal)
1. This item changes references to the AAT and the Small Taxation Claims Tribunal to references to the ART.
787. Item 3: Subsection 14Y(2)
1. This item changes the reference to the AAT Act to a reference to the ART Bill.
788. Item 4: Section 14ZQ (definition of AAT)
1. With the repeal of the AAT Act (see clause 4 of this Bill), this definition is obsolete.
789. Item 5: Section 14ZQ (definition of AAT Act)
1. With the repeal of the AAT Act (see clause 4 of this Bill), this definition is obsolete.
790. Item 6: Section 14ZQ (definition of AAT extension application)
1. With the repeal of the AAT Act (see clause 4 of this Bill), this definition is obsolete.
2. This defines ‘ART Act’.
1. This defines ‘ART extension application’.
793. Item 9: At the end of section 14ZX
2. This item provides that extension of time refusal decisions are reviewed in the Taxation Division of the Tribunal.
794. Item 10: At the end of section 14ZZ
1. New subsection 14ZZ(2) applies to the review of objection decisions that are both reviewable objection decisions and appealable objection decisions. In these cases, an applicant may end the review of a decision in order to lodge an appeal in the Federal Court, provided that all of the participants in the review agree that the review is being ended for that purpose.
2. New subsection 14ZZ(3) specifies that reviewable objection decisions must be reviewed in the Taxation Division of the Tribunal.
795. Item 11: Division 4 of Part IVC (heading)
1. This item changes the reference to the AAT to a reference to the ‘Tribunal’—that is, the ART.
796. Item 12: Sections 14ZZA to 14ZZJ
1. This item repeals sections 14ZZA to 14ZZJ of the TAA and substitutes new sections 14ZZA and 14ZZB.
2. Clause 56 of the ART Bill requires a person who makes a ‘notifiable decision’ to take reasonable steps to give notice, to any person whose interests are affected by the decision, that the decision has been made and that the person has certain review rights.
3. The effect of new section 14ZZA is that clause 56 will not apply to decisions that persons can object to under Part IVC of the TAA. The notice requirements will, however, apply to objection decisions that are original decisions for the purposes of clause 56.
1. New section 14ZZB provides that Schedule 2 to the TAA is to modify the application of the ART Bill in relation to applications for the review of reviewable objection decisions, extension of time refusal decisions and ART extension applications.
2. The existing reference in section 14ZZM to ‘registration-type sales tax decisions’ is no longer required.
1. New section 14ZZN sets out the time limits within which appeals to the Federal Court against appealable objection decisions must be brought.
2. Under the existing law, direct appeals to the Federal Court must be lodged with the Court within 60 days after the service of the notice of the decision on the objection. New paragraph 14ZZN(1)(a) maintains this requirement. If, however, a person fails to lodge an appeal within the specified 60-day period, new subsections 14ZZN(2) and (3) confer on the Federal Court discretion to grant the person an extension of time to lodge the appeal.
3. If a person ends the review of a decision in the ART, an appeal to the Federal Court, pursuant to new subsection 14ZZ(2), must be lodged within 7 days after the review by the Tribunal is ended (see new paragraph 14ZZN(1)(b)).
802. Item 15: Subparagraph 68(3)(c)(iv)
1. This item changes the reference to the AAT to a reference to the ‘Tribunal’—that is, the ART.
804. Item 1: At the end of the Act
1. Item 1 adds a new Schedule 2 to the end of the Taxation Administration Act 1953 (TAA). The new Schedule sets out modifications of the ART Bill applicable, in accordance with the new section 14ZZB of the TAA (inserted by item 12 of Schedule 6), for the purpose of review of certain decisions made under the TAA. It also details the circumstances in which the Small Taxation Claims Tribunal (STCT) may be constituted.
2. The clauses of the new Schedule are explained below.
807. Clause 1: After section 68
1. New section 68A provides for the STCT. If certain threshold requirements are satisfied, the Tribunal, when conducting a first-tier review, will be known as the STCT.
2. New subsections 68A(2) and (3) outline the threshold requirements. The decision must be a decision refusing a request for an extension of time; or, the decision must be a reviewable objection decision, the applicant must have elected to have the matter dealt with as a small claims matter, and certain additional small claims criteria must be satisfied.
3. The small claims criteria will be satisfied, in respect of a reviewable objection decision, if:
• the amount in dispute is less than $15,000 or the decision does not involve a dispute about any amount; and
• the review can be conducted relatively quickly or easily, and it does not raise an issue, or principle, of general significance.
4. The decision as to whether the small claims criteria are satisfied is to be made by the President, as soon as a direction has been made about the Division in which the review is to take place. The decision will be the performance of a related Tribunal function for the purposes of paragraph 140(b) of the ART Bill. While the decision cannot be varied or revoked, it will be subject to judicial review.
5. If the dispute is over an amount that is relevant to the working out of a liability, then the amount in dispute is to be taken to be the amount by which the liability would be affected if the dispute was resolved in the applicant’s favour.
6. In determining whether the review can be conducted quickly or whether it raises an issue, or principle, of general significance, the President should have regard to possible evidential and factual issues, as well as to any questions of law, likely to arise during the review.
1. New section 68B allows the Tribunal to hear matters together where an application(s) to the Tribunal is related to a small taxation claims application(s). Such a hearing will not be before the STCT. If matters are heard together, the President must refund any fees paid in relation to the small taxation claims application(s).
810. Clause 2: Subsection 69(1)
2. Despite clause 69(1) of the ART Bill, the STCT is to be constituted by a single member only, who cannot be the President.
811. Clause 3: At the end of paragraph 84(1)(d)
1. This modification mirrors existing section 14ZZD of the TAA. An applicant for the review of a reviewable objection decision or an extension of time refusal decision must agree before a person other than the decision-maker or an Attorney-General can become a participant in the review.
812. Clause 4: At the end of section 100
1. This modification continues the effect of existing section 14ZZE. Unless the Tribunal is constituted as the STCT, hearings in relation to reviewable objection decisions or extension of time refusal decisions are to be held in private, if the applicant so requests.
813. Clause 5: Subsection 124(4)
1. This modification confirms that the Commissioner of Taxation will have 60 days within which to reconsider a decision having regard to new information. A 60-day limit is consistent with the Commissioner’s obligations in respect of taxation objections in Part IVC of the TAA.
814. Clause 6: Subsection 125(3)
1. This modification confirms that the Commissioner will have 60 days within which to reconsider decisions in other cases.
815. Clause 7: At the end of section 136
1. This modification continues the effect of existing section 14ZZJ of the TAA. If a review of a reviewable objection decision or an extension of time refusal decision is not held in public, and a notice of appeal against the Tribunal’s decision has not been lodged with the Federal Court, then the Tribunal’s reasons must be framed so that the applicant is not likely to be identified.
816. Clause 8: After subsection 161(3)
1. The STCT is intended to provide a cheaper and less formal means of resolving disputes between small taxpayers and the Commissioner of Taxation. As such, it is envisaged that proceedings before the STCT will be conducted with as little formality and technicality, and with as much expedition, as possible. In particular, mediation is to be encouraged, where appropriate, as a form of dispute resolution.
817. Clause 9: After subsection 172(1)
1. This modification continues the effect of existing paragraph 45(1)(c) of the AAT Act. It ensures that the financial and other interests of the small claimant are considered in matters where either the Tribunal or a party, possibly the Commissioner of Taxation, wishes to have a legal point settled by the Federal Court.
818. Clause 10: After paragraph 194(2)(b)
1. A determination that the STCT is to review a decision may result in the amount payable in respect of an application for review being higher or lower than the amount that has actually been paid. Without limiting the breadth of the general regulation-making power in clause 194 of the ART Bill, this modification confirms that regulations may be made to ensure that the correct fees are paid in respect of such applications. For example, if a determination results in a higher fee being payable, the regulations could provide that the review must be suspended until the additional amount has been paid.
820. Clause 11: Sections 57, 58, 59, 60 and 61
1. This modification continues the effect of existing section 14ZZB of the TAA. The following clauses of the ART Bill are not to apply in respect of reviewable objection decisions:
• clause 57 (statement of reasons for original decision);
• clause 58 (review of refusal to give statement of reasons etc.);
• clause 59 (review of adequacy of statement of reasons);
• clause 60 (exclusion of confidential etc. material from statements of reasons); and
• clause 61 (who may apply).
821. Clause 12: Before paragraph 77(1)(b)
1. This modification continues the effect of existing subparagraphs 14ZZF(a)(ii), (iii) and (iv) of the TAA. In relation to an application for review of a reviewable objection decision, the Commissioner of Taxation will be required to lodge the notice of the taxation decision, the taxation objection and the notice of the decision.
822. Clause 13: Paragraph 77(1)(b)
1. This modification continues the effect of existing subparagraph 14ZZF(a)(v) of the TAA. In relation to an application for review of a reviewable objection decision, the decision-maker will be required to lodge every other document that is in the decision-maker’s possession, or under his or her control, that the decision-maker considers is ‘necessary’ to the review. This is a narrower requirement than the requirement in paragraph 77(1)(b) of the ART Bill that the decision-maker lodge every document that is ‘relevant’ to the review.
823. Clause 14: After section 79
1. New section 79A ensures that the Tribunal will be able to serve a notice requiring a decision-maker to lodge a list of documents in his or her possession or control that he or she considers relevant to the review of the reviewable objection decision. This is consistent with existing subparagraph 14ZZF(b)(iii) of the TAA. The imposition of a requirement to lodge a list of relevant documents with the Tribunal is not intended to limit in any way the Tribunal’s power under clause 79 of the ART Bill. Pursuant to clause 79, the Tribunal may order the lodgement of any documents identified in the list, that come into the decision-maker’s possession or control after the review has commenced.
825. Clause 15: Subsection 82(2)
1. Clause 82 of the ART Bill allows decision-makers who would otherwise have to produce documents to the Tribunal to apply to the Tribunal to be relieved of that obligation. This modification ensures that clause 82 applies to all documents that must be lodged by decision-makers in respect of reviewable objection decisions.
2. This modification continues the effect of existing paragraph 14ZZB(1)(a) of the TAA. Clause 121 of the ART Bill will not apply in respect of reviewable objection decisions. Clause 121 gives the Tribunal the power to stay or otherwise affect the operation or implementation of an original decision, or a first-tier decision, during Tribunal review.
827. Clause 17: After subsection 141(2)
1. This modification continues the effect of existing paragraph 14ZZC(1)(c) of the TAA. A statement of reasons for the application must accompany an application for review of a reviewable objection decision.
1. This modification continues the effect of existing subsection 14ZZB(2) of the TAA. Clause 171 of the ART Bill will not apply in respect of reviewable objection decisions. Clause 171 gives the Federal Court, or the Federal Magistrates Court, the power to stay or otherwise affect the operation or implementation of the original decision or a Tribunal decision, during an appeal.
830. Clause 19: Sections 61 and 121
1. This modification continues the effect of existing section 14ZZB of the TAA. The following clauses of the ART Bill are not to apply in respect of extension of time refusal decisions:
• clause 61, which allows affected persons to apply to the Tribunal for review of a decision; and
• clause 121, which gives the Tribunal the power to stay or otherwise affect the operation or implementation of an original decision or a first-tier decision, during Tribunal review.
832. Clause 20: After subsection 142(2)
1. This modification continues the effect of existing section 14ZZE of the TAA. Hearings in relation to ART extension applications are to be held in private, if the applicant so requests.
833. Clause 21: At the end of section 142
1. This modification continues the effect of existing section 14ZZJ of the TAA. If an ART extension application is not held in public, the Tribunal’s reasons must be framed so that the applicant is not likely to be identified.
2. This Schedule makes consequential amendments of the Veterans’ Entitlements Act 1986 (VEA).
835. Item 1: Paragraphs 13(8)(a) and (b)
1. This item changes references to the AAT to references to the AAT or the ART. The reference to the AAT is retained to ensure that these provisions apply to past decisions of the AAT.
836. Item 2:
Subsection 18(2)
837. Item 3:
Subsection 29(4)
838. Item 4:
Subsection 31(2)
839. Item 5:
Paragraph 31(6)(a)
840. Item 6:
Subsections 31(6B), (10), (11) and (12)
1. These items change references to the AAT to references to the ART.
841. Item 7: Section 35J (note)
1. This item changes the reference to a provision of the AAT Act to a reference to the corresponding provision of the ART Bill.
842. Item 8:
Paragraph 54(1)(b)
843. Item 9:
Paragraph 54A(1)(b)
844. Item 10:
Subsection 54AA(3)
845. Item 11:
Paragraph 57E(1)(c)
846. Item 12:
Paragraphs 70(11)(a) and
(b)
847. Item 13:
Paragraph 79W(1)(c)
848. Item 14:
Paragraph 118ZX(1)(c)
849. Item 15:
Paragraph 127(1)(b)
850. Item 16:
Subsections 132(7)
and (8)
851. Item 17:
Paragraph 140(1)(d)
852. Item 18:
Subsection 154(1)
1. These items change references to the AAT to references to the ART.
1. This item repeals subsection 155A(1) of the VEA. Subsection 155A(1) is reinserted into the VEA as new subsection 175(1A) (see item 23 of this Schedule).
2. Current subsections 155A(2) and (3) are renumbered 155A(1) and (2). The content of the provisions have not been changed, however, references to provisions of the AAT Act have been changed to references to the corresponding provisions of the ART Bill.
855. Item 20:
Part X
(heading)
856. Item 21:
Subsection 174(1)
1. These items change references to the AAT to references to the ART.
857. Item 22: Subsection 175(1)
1. This item replaces the reference to section 29 of the AAT Act with a broader reference to the ART Bill. This item also changes a reference to the AAT Act to a reference to the ART Bill.
858. Item 23: After subsection 175(1)
1. This item inserts a new subsection 175(1A) after subsection 175(1) of the VEA. This new subsection provides for the review by the AAT of a decision of the Principal Member of the Veterans’ Review Board under subsection 155AA(5) or 155AB(5) and paragraphs 155AA(6)(b), 155AB(6)(b), 155AA(7)(b) and 155AB(7)(b). These provisions enable the Principal Member to dismiss an application for review by the Board.
2. The new subsection 175(1A) replicates the provisions of current subsection 155A(1) which is repealed by item 19 of this Schedule.
859. Item 24: Subsections 175(2), (2AAA), (2AA) and (2A)
1. This item changes references to the AAT to references to the ART.
860. Item 25: Subsection 175(2A)
1. This item replaces the reference to section 29 of the AAT Act with a broader reference to the ART Bill.
861. Item 26: Subsection 175(3)
1. This item changes the reference to the AAT to a reference to the ART.
862. Item 27: Subsection 175(4)
1. This item replaces the reference to section 29 of the AAT Act with a broader reference to the ART Bill. This item also changes a reference to the AAT Act to a reference to the ART Bill.
863. Item 28: Sections 176, 177 and 178
1. This item repeals sections 176, 177 and 178 of the VEA and inserts new sections 176 and 177.
2. New section 176 requires that any review initiated by an application under section 175 of the VEA, must be undertaken in the Veterans’ Appeals Division of the ART.
1. New section 177 of the VEA provides for the modification of the ART Bill as it applies to applications made under the VEA. When determining the provisions that will apply to an application made to the Tribunal under the provisions of the VEA, the ART Bill applies subject to the modifications set out in Schedule 7 to the VEA (which is inserted by Schedule 9 to this Bill). The modifications to a provision of the ART Bill contained in Schedule 7 to the VEA should be read and applied in place of the provision that appears in the ART Bill.
2. New subsection 177(1) provides that the modifications to the ART Bill set out in Part 1 of Schedule 7 to the VEA, apply to applications to the Tribunal made under subsection 175(1) of the VEA.
3. New subsection 177(2) provides that the modifications to the ART Bill set out in Part 2 of Schedule 7 to the VEA, apply to applications to the Tribunal made under subsections 175(2), (2AAA), (2AA) or (4) of the VEA.
867. Item 1: At the end of the Act
2. Item 1 adds a new Schedule 7 to the end of the Veterans’ Entitlements Act 1986 (VEA). The new Schedule sets out modifications of the ART Bill applicable, in accordance with the new section 177 of the VEA (inserted by item 28 of Schedule 8), for the purpose of review of certain decisions made under the VEA.
3. The clauses of the new Schedule are explained below.
2. New Part 1 of Schedule 7 modifies the ART Bill in relation to an application for review of a decision of the Repatriation Commission (Commission) where the Commission decision has been reviewed by the Veterans’ Review Board (VRB), under section 139 of the VEA. A Commission decision that has been reviewed by the VRB may be the subject of an application for review to the AAT and consequently the ART (the Tribunal), under subsection 175(1) of the VEA.
3. When the Government announced the creation of the Tribunal, it gave a commitment to the veteran community that the VRB would be maintained in its current form as a separate tribunal with full appeal rights to the Tribunal.
4. These modifications to the ART Bill preserve the position that applied under the AAT Act in relation to an application for review made under subsection 175(1) of the VEA. This means that an application for review by the Tribunal made under section 175(1) of the VEA will be dealt with as a second-tier review and not a first-tier review. Furthermore, an application for review made under subsection 175(1) of the VEA, although a second-tier review, will not be subject to the leave requirements that would otherwise apply to an application for a second-tier review under the ART Bill. This preserves the arrangements that currently apply under the AAT Act, to an application for review, where that application was made under subsection 175(1) of the VEA.
5. This effectively negates the two-tier review structure of the ART Bill in relation to applications under subsection 175(1) of the VEA. In these cases the ART will operate as a single tier of review, being second-tier review.
6. The modifications contained in Part 1 of Schedule 7 to the VEA modify the ART Bill so that it can be applied to an application for review made under subsection 175(1) of the VEA.
870. Clause 1: Section 6 (definition of decision-maker)
1. This clause disapplies the definition of ‘decision-maker’ that appears in the ART Bill and substitutes a new definition for the purposes of an application to the Tribunal for a review of a decision, where the application was made under subsection 175(1) of the VEA.
2. For the purposes of an application for review made under subsection 175(1) of the VEA, the ‘decision-maker’ is the person who made the decision. This means that for an application for review requested under paragraphs 175(1)(a) or (b) of the VEA, the decision-maker is the Commission. In the case of an application for review requested under paragraph 175(1)(c) of the VEA, the decision-maker is the VRB.
3. This modification preserves the present arrangements under the AAT Act to an application for review made under subsection 175(1) of the VEA.
871. Clause 2: Section 6 (definition of first-tier decision)
1. This clause disapplies the definition of ‘first-tier decision’ that appears in the ART Bill and substitutes a new definition for the purposes of an application to the Tribunal for a review of a decision made under subsection 175(1) of the VEA.
2. When applying the ART Bill in these cases, a ‘first-tier decision’ is a decision which may be the subject of an application to the Tribunal for review under subsection 175(1) of the VEA. This means it is the decision of the Commission that was either affirmed or varied by the VRB, or the VRB decision made in substitution for a Commission decision.
3. This modification preserves the present arrangements under the AAT Act, to an application for review made under subsection 175(1) of the VEA.
872. Clause 3: Section 6 (definition of first-tier review)
1. This clause disapplies the definition of ‘first-tier review’ in the ART Bill and substitutes a new definition for the purposes of an application to the Tribunal for a review of a decision made under subsection 175(1) of the VEA.
2. Where an application for review by the Tribunal has been made under subsection 175(1) of the VEA, a ‘first-tier review’ is the review by the VRB, conducted in accordance with Part IX of the VEA, that resulted in a first-tier decision.
3. This modification preserves the present arrangements under the AAT Act, to an application for review made under subsection 175(1) of the VEA.
873. Clause 4: Section 6 (definition of original decision)
1. This clause disapplies the definition of ‘original decision’ in the ART Bill. As a result of the modifications contained in this Part, the term ‘original decision’ is not used in relation to an application for review made under subsection 175(1) of the VEA. The decision in respect of which an application for review is made under subsection 175(1) of the VEA is a ‘first-tier decision’ (see clause 2 of this Schedule). In some instances in the ART Bill it is referred to as the ‘decision’, with no qualifier.
874. Clause 5: Subsection 4(5) (second sentence)
1. This clause modifies subclause 4(5) of the ART Bill by omitting the sentence that refers to the Tribunal’s two stages of review, that is, first- and second-tier review. When applying the ART Bill to an application for review made under subsection 175(1) of the VEA, the review by the Tribunal is a second-tier review. The first-tier review is the review conducted by the VRB.
1. This clause disapplies clause 5 of the ART Bill because it provides for first- and second-tier review by the Tribunal. This is not how the Tribunal will operate in relation to an application for review made under subsection 175(1) of the VEA. The review by the Tribunal is a second-tier review. The review conducted by the VRB is the first-tier review.
876. Clause 7: At the end of section 6
1. This clause inserts a new subsection (2) at the end of clause 6 of the ART Bill. This new subsection provides that an expression used in the ART Bill, that is also used in the VEA, has the same meaning as it has in the VEA.
877. Clause 7A: Subsection 50(3) (table
item 5)
878. Clause 7B: Subsection 50(4)
1. Review by the Tribunal of decisions made under the VEA is second-tier review, and leave for such review is not required. Accordingly, table item 5 of subclause 50(3) and subclause 50(4) are superfluous and these clauses disapply them.
879. Clause 8: Division 1 of Part 4 (heading)
1. This clause omits the heading to Part 4, Division 1 of the ART Bill and a new Division 1 heading is substituted.
880. Clause 9: Subdivision A of Division 1 of Part 4
1. This clause disapplies Subdivision A of Division 1 of Part 4 of the ART Bill. The terms defined in the Subdivision are not relevant to an application for review made under subsection 175(1) of the VEA. For the purposes of an application for review made under subsection 175(1) of the VEA, the definition of ‘original decision’ has been modified by the application of the definition for ‘first-tier decision’ at clause 2 of this Schedule. The definition of ‘decision-maker’ has been modified by the application of the definition at clause 1 of this Schedule.
881. Clause 10: Subdivision B of Division 1 of Part 4 (heading)
1. This clause omits the heading to Subdivision B of Division 1 of Part 4 of the ART Bill. Clause 9 of this Schedule disapplies Subdivision A of Division 1 of Part 4 of the ART Bill. There are, therefore, no subdivisions in this Division.
882. Clause 11: Paragraph 56(1)(a)
1. This clause omits the reference to ‘an original decision’ in paragraph 56(1)(a) of the ART Bill and substitutes ‘a first-tier decision’, which is the decision being referred to when applying the ART Bill to an application for review made under subsection 175(1) of the VEA.
883. Clause 12: Subparagraph 56(1)(b)(i)
1. This clause omits the reference to ‘an original decision’ in subparagraph 56(1)(b)(ii) of the ART Bill and substitutes ‘a first-tier decision’ which is the decision being referred to when applying the ART Bill to an application for review made under subsection 175(1) of the VEA.
884. Clause 13: Paragraphs 56(2)(b) and (c)
1. This clause omits the reference to ‘an original decision’ in paragraphs 56(2)(b) and (c) of the ART Bill and substitutes ‘a first-tier decision’ which is the decision being referred to when applying the ART Bill to an application for review made under subsection 175(1) of the VEA.
885. Clause 14: Subsection 57(1)
1. This clause omits the reference to ‘an original decision’ in the heading to clause 57 and in subclause 57(1) of the ART Bill and substitutes ‘a first-tier decision’ which is the decision being referred to when applying the ART Bill to an application for review made under subsection 175(1) of the VEA.
2. The modifications contained in clauses 11 to 14 provide that the first-tier decision by the VRB is the notifiable decision for the purposes of applying the ART Bill to an application for review made under subsection 175(1) of the VEA, and the decision in respect of which a person may request a statement of reasons.
886. Clause 15: At the end of section 57
1. A new subsection (6) is inserted at the end of clause 57 of the ART Bill.
2. Paragraph 57(6)(a) preserves the current arrangements that apply by virtue of paragraph 176(3)(a) of the VEA. Paragraph 57(6)(a) provides that clause 57 does not apply to a person if the decision is a Commission decision that was affirmed by the VRB, or a VRB decision substituted for a Commission decision, and the person has been served with a copy of the decision and a statement related to that decision in accordance with section 34 or 140 of the VEA.
3. Paragraph 57(6)(b) preserves the current arrangements that apply by virtue of paragraph 176(3)(b) of the VEA. Paragraph 57(6)(b) provides that clause 57 does not apply to a person if the decision is a Commission decision that was varied by the VRB and the person has been served with copies of the Commission decision, the decision of the VRB varying the Commission decision and respective statements related to those decisions in accordance with section 34 or 140 of the VEA.
887. Clause 16: Paragraph 59(1)(a)
1. This clause omits the reference to ‘original decision’ in paragraph 59(1)(a) of the ART Bill and substitutes ‘first-tier decision’, which is the decision being referred to when applying the ART Bill to an application for review made under subsection 175(1) of the VEA.
888. Clause 17: Subsection 60(1)
1. This clause omits the references to ‘original decision’ in subclause 60(1) of the ART Bill and substitutes ‘first-tier decision’ which is the decision being referred to when applying the ART Bill to an application for review made under subsection 175(1) of the VEA.
889. Clause 18: Subsection 60(3)
1. This clause omits the reference to ‘first-tier review of the original decision, or a second-tier review of a first-tier decision resulting from such a first-tier review’, which is not relevant to an application for review of a decision made under subsection 175(1) of the VEA, and substitutes ‘second-tier review of the decision’.
890. Clause 19: Subsection 60(3)
1. The second reference to ‘later’ in subclause 60(3) of the ART Bill is omitted.
891. Clause 20: Subdivisions C and D of Division 1 of Part 4
1. Subdivisions C and D of Division 1 of Part 4 of the ART Bill are disapplied as they are not relevant to an application for review made under subsection 175(1) of the VEA.
892. Clause 21: Subdivision A of Division 2 of Part 4
1. This clause disapplies Subdivision A of Division 2 of Part 4 of the ART Bill as it is not relevant to an application for review made under subsection 175(1) of the VEA.
1. This clause disapplies clause 66 of the ART Bill and substitutes a new section 66.
2. Subsection 66(1) provides that, for the purposes of an application for review made under subsection 175(1) of the VEA, the Commission or any person whose interests are affected by a first-tier decision may apply to the Tribunal for a review of that decision. This new subsection preserves the present position under subsection 176(2) of the VEA, that is, the Commission is the person considered to be affected by the decision, not the VRB.
3. Subsection 66(2) leaves no doubt that the Commonwealth and the other parties listed in paragraphs 66(2)(b) and (c) have every right to apply to the Tribunal for a review as long as they are a person whose interests are affected by the decision.
895. Clause 23: Paragraph 67(1)(c)
1. This clause disapplies paragraph 67(1)(c) of the ART Bill. The disapplied paragraph is not relevant to a review by the VRB. There is no provision under the VEA for all participants to agree to forgo any right to a Tribunal review of a first-tier decision.
896. Clause 24: Subsection 67(1)
2. Reference to ‘and subsection (2) of this section and’ in subclause 67(1) of the ART Bill is omitted. Subclause 67(2) of the ART Bill is not relevant to an application for review made under subsection 175(1) of the VEA.
897. Clause 25: Subsection 67(2)
2. This clause disapplies subclause 67(2) of the ART Bill. The disapplied subclause is not relevant to an application for review made under subsection 175(1) of the VEA.
898. Clause 26: Subsection 69(4)
1. This clause disapplies subclause 69(4) of the ART Bill. The disapplied subclause is not relevant to an application for review made under subsection 175(1) of the VEA. The subclause would only be relevant if the Tribunal were undertaking both the first-tier review and the second-tier review of a decision made under the VEA.
1. This clause disapplies clause 76 of the ART Bill and substitutes a new section 76 for the purposes of applying the ART Bill to an application for review made under subsection 175(1) of the VEA.
2. Section 76 provides that the Chief Executive Officer must arrange for the decision-maker to be given a notice in writing of an application for review of a first-tier decision.
3. Paragraphs 76(a) and (b) of the ART Bill are also disapplied. The paragraphs are not relevant to an application for review made under subsection 175(1) of the VEA.
901. Clause 28: Subsection 77(1)
1. This clause omits the reference to ‘an original’ in the heading to clause 77 and in subclause 77(1) of the ART Bill and substitutes ‘first-tier’ which is the decision being referred to when applying the ART Bill to an application for review made under subsection 175(1) of the VEA.
902. Clause 29: Subsection 79(1)
1. This clause omits the reference to ‘In the case of review of either an original decision or a first-tier decision, if’ and substitutes ‘If’ in subclause 79(1) of the ART Bill. The omitted reference is not relevant to an application for review made under subsection 175(1) of the VEA.
903. Clause 30: Paragraphs 84(1)(a) and (b)
1. This clause disapplies paragraphs 84(1)(a) and (b) of the ART Bill and substitutes new paragraphs 84(1)(a) and (b) for the purposes of applying the ART Bill to an application for review made under subsection 175(1) of the VEA.
2. The new paragraph 84(1)(a) provides that the participants in the review by the Tribunal are the applicant and the Commission where the applicant is not the Commission. Where the applicant is the Commission, the Commission and the veteran or the dependant of the deceased veteran whose interests are affected by the decision are the participants.
3. This modification preserves the current arrangements that apply in relation to participation under the AAT Act by virtue of subsection 176(6) of the VEA which makes the Commission the participant instead of the VRB.
904. Clause 31: Subsections 84(2) to (6)
3. This clause disapplies subclauses 84(2) to (6) of the ART Bill. The disapplied subclauses are not relevant to an application for review made under subsection 175(1) of the VEA.
905. Clause 31A: Section 85
1. This clause substitutes a new section 85 which provides for the Repatriation Commission to cease to be a participant in a review. (The substitute section 85 is simpler than clause 85 in the ART Bill because the Commission replaces the decision-maker as participant: see clause 30 of this Schedule.)
2. The Commission can be reinstated as a participant by revoking its written notice given under new subclause 85(1): see subsection 33(3) of the Acts Interpretation Act 1901.
906. Clause 31B:
Subsection 87(1)
907. Clause 31C: Section 94
1. These clauses change references to the decision-maker in the ART Bill to references to the Commission.
908. Clause 32: Section 99
1. This clause disapplies clause 99 of the ART Bill. The disapplied clause is not relevant to an application for review made under subsection 175(1) of the VEA.
2. As the first-tier review was undertaken by the VRB, other provisions (for example, clause 95 and Division 8 of Part 9 of the ART Bill) provide for access to records and documents relating to the first-tier review by the VRB.
909. Clause 33: Subsection 110(4)
1. This clause disapplies paragraph 110(4)(d) of the ART Bill. The paragraph is not relevant to an application for review made under subsection 175(1) of the VEA. As the review is a second-tier review, paragraph (d) is not relevant because it refers to a first-tier review by the Tribunal.
910. Clause 34: Paragraph 119(d)
5. This clause disapplies paragraph 119(d) of the ART Bill. The paragraph is not relevant to an application for review made under subsection 175(1) of the VEA. As the review is a second-tier review, paragraph (d) is not relevant because it refers to a first-tier review by the Tribunal.
1. This clause disapplies clause 120 of the ART Bill and substitutes a new section 120 for the purposes of an application for review made under subsection 175(1) of the VEA.
2. Section 120 provides a definition of when ‘all review and appeal action has been finalised’, which is substantially the same as paragraph 120(3)(b) of the unmodified ART Bill.
3. The new section does not incorporate subclauses 120(1) and (2) and paragraph 120(3)(a) of the ART Bill and incorporates the intent of paragraph 120(3)(b) into a single paragraph provision. Subclauses 120(1) and (2), and paragraph 120(3)(a), are not relevant to an application for review made under subsection 175(1) of the VEA as they relate to a first-tier review by the Tribunal.
913. Clause 36: Subsection 121(1)
1. This clause disapplies paragraphs 121(1)(a) and (b) of the ART Bill. Paragraphs 121(1)(a) and (b) are not relevant to an application for review made under subsection 175(1) of the VEA as they relate to a first-tier review by the Tribunal.
914. Clause 37: Subsection 121(2)
1. This clause omits the reference to ‘an original decision or’ in subclause 121(2) of the ART Bill as the reference is not relevant to an application for review made under subsection 175(1) of the VEA.
915. Clause 38: Subsection 121(2)
2. The reference to ‘(3) or’ in subclause 121(2) of the ART Bill is omitted. The reference to subclause 121(3) is not relevant as it is disapplied by clause 39 of this Schedule.
916. Clause 39: Subsection 121(3)
3. Subclause 121(3) of the ART Bill is disapplied. The subclause is not relevant to an application for review made under subsection 175(1) of the VEA as it relates to a first-tier review by the Tribunal.
917. Clause 40: Paragraph 121(4)(b)
1. This clause omits the reference to ‘original’, wherever occurring in paragraph 121(4)(b) of the ART Bill. The omitted references are not relevant to an application for review made under subsection 175(1) of the VEA.
918. Clause 41: Subsection 121(4)
1. This clause changes the reference to ‘in relation to the original decision’ in subclause 121(4) of the ART Bill to ‘in relation to the first-tier decision’, which is the decision being referred to when applying the ART Bill to an application for review made under subsection 175(1) of the VEA.
919. Clause 42: Subsections 121(6) and (7)
1. This clause omits the reference to ‘(3) or’ from subclauses 121(6) and (7) of the ART Bill as subclause 121(3) is disapplied by clause 39 of this Schedule.
920. Clause 43: Subsection 122(1)
2. This clause disapplies subclause 122(1) of the ART Bill as it deals with a stay direction for a first-tier review, where that review was conducted by the Tribunal. This subclause is not relevant to an application for review made under subsection 175(1) of the VEA.
921. Clause 44: Subparagraph 122(2)(a)(ii)
1. This clause omits the reference to ‘original’, wherever occurring in subparagraph 122(2)(a)(ii) of the ART Bill, as this reference is not relevant to an application for review made under subsection 175(1) of the VEA.
922. Clause 45: Subsection 122(2)
2. This clause omits the reference to ‘original’ in subclause 122(2) of the ART Bill as the reference is not relevant to an application for review made under subsection 175(1) of the VEA.
923. Clause 46: Subsection 122(3)
3. This clause omits the reference to ‘(1) or’ from subclause 122(3) of the ART Bill. Subclause 122(1) is disapplied by clause 43 of this Schedule.
924. Clause 47: Paragraphs 122(3)(a) and (b)
1. This clause changes the reference to ‘first-tier decision or the second-tier decision mentioned in subsection (1) or (2) of this section’ in paragraphs 122(3)(a) and (b) of the ART Bill to ‘decision’. For the purposes of an application for review made under subsection 175(1) of the VEA, these paragraphs of the ART Bill apply only to a second-tier decision of a first-tier review.
925. Clause 48: Subsection 123(1)
1. This clause disapplies subclause 123(1) of the ART Bill and substitutes a new subsection 123(1) for the purposes of applying the ART Bill to an application for review made under subsection 175(1) of the VEA.
2. Subsection 123(1) provides that the decision-maker must not alter his or her decision during the review of a first-tier decision otherwise than in accordance with Part 7 of Division 6 of the ART Bill, until all review and appeal action has been finalised in relation to the first-tier review. This subsection is subject to subclause 123(2) and clauses 124 and 125 of the ART Bill, as modified by this Schedule.
3. The new subsection does not incorporate paragraph 123(1)(a) of the ART Bill. Paragraph 123(1)(a) is not relevant to an application for review made under subsection 175(1) of the VEA as it relates to a first-tier review by the Tribunal.
4. Clause 48 of this Schedule also changes the reference to ‘original decision during first-tier or’ in the heading to clause 123 of the ART Bill to ‘decision during’. The reference is not relevant to an application for review made under subsection 175(1) of the VEA.
926. Clause 49: Paragraph 123(2)(a)
1. This clause omits the reference to ‘original’ in paragraph 123(2)(a) of the ART Bill. The reference to an ‘original’ decision is not relevant to an application for review made under subsection 175(1) of the VEA.
927. Clause 50: Paragraph 124(1)(b)
1. This clause disapplies paragraph 124(1)(b) of the ART Bill and substitutes a new paragraph 124(1)(b) for the purposes of applying the ART Bill to an application for review made under subsection 175(1) of the VEA.
2. The new paragraph 124(1)(b) provides that the Tribunal must decide whether to ask the decision-maker to reconsider the decision having regard to the new information.
3. The new paragraph does not incorporate subparagraph 124(1)(b)(i) of the ART Bill, but instead incorporates the intent of subparagraph 124(1)(b)(ii) of the ART Bill into the new paragraph 124(1)(b). Subparagraph 124(1)(b)(i) is not relevant to an application for review made under subsection 175(1) of the VEA as it relates to a first-tier review by the Tribunal.
928. Clause 51: Paragraph 124(2)(a)
2. This clause omits the reference to ‘original’ from paragraph 124(2)(a) of the ART Bill. The reference to an ‘original’ decision is not relevant to an application for review made under subsection 175(1) of the VEA.
929. Clause 52: Subsections 124(3) and (6)
1. This clause omits the reference to ‘original’ in subclauses 124(3) and (6) of the ART Bill. The reference to an ‘original’ decision is not relevant to an application for review made under subsection 175(1) of the VEA.
930. Clause 53: Subsection 124(7)
4. This clause disapplies the definition of ‘new information’ in subclause 127(7) of the ART Bill and substitutes a new definition for the purposes of applying the ART Bill to an application for review under subsection 175(1) of the VEA.
5. The substituted definition mirrors that in the ART Bill; but does not incorporate subparagraphs 124(7)(a)(i) and (ii) as those subparagraphs are not relevant to an application for review made under subsection 175(1) of the VEA.
931. Clause 54: Subsection 125(1)
1. This clause disapplies subclause 125(1) of the ART Bill and substitutes a new subsection 125(1) for the purposes of applying the ART Bill to an application for review under subsection 175(1) of the VEA.
2. Subsection 125(1) provides that, subject to subclause 125(3) of the ART Bill, the Tribunal may at any time during a review of a first-tier decision, ask the decision-maker to reconsider the decision.
3. The new subsection 125(1) does not incorporate paragraphs 125(1)(a) and (b) of the ART Bill as those subparagraphs are not relevant to an application for review made under subsection 175(1) of the VEA.
932. Clause 55: Subsection 125(2)
1. This clause omits the reference to ‘original’ in subclause 125(2) of the ART Bill. The reference to an ‘original’ decision is not relevant to an application for review made under subsection 175(1) of the VEA.
1. This clause disapplies clause 126 of the ART Bill and substitutes a new section 126 for the purposes of applying the ART Bill to an application for review under subsection 175(1) of the VEA.
2. New section 126, retains the intention of clause 126 in the unmodified ART Bill, but omits references to an ‘original’ decision and ‘first-tier review’ where it relates to a first-tier review by the Tribunal. Those references are not relevant to an application for review made under subsection 175(1) of the VEA.
935. Clause 57: Division 1 of Part 8 (note after the heading)
1. This clause omits the reference to ‘original’ from the note after the heading to Division 1 of Part 8 of the ART Bill. The reference to an ‘original’ decision is not relevant to an application for review made under subsection 175(1) of the VEA.
936. Clause 57A:
Subsection 128(1)
937. Clause 57B:
Subsection 129(1)
1. These clauses change references to the decision-maker in the ART Bill to references to the Commission.
938. Clause 58: Subsection 130(1)
2. This clause substitutes the words ‘a first-tier’ for ‘an original’ in subclause 130(1) of the ART Bill. This is because the subclause applies to a first-tier decision for the purposes of an application for review made under subsection 175(1) of the VEA.
939. Clause 59: Subsections 133(1) to (4)
1. This clause disapplies subclauses 133(1), (2), (3) and (4) of the ART Bill and substitutes new subsections 133(1) and (2) for the purposes of applying the ART Bill to an application for review under subsection 175(1) of the VEA.
2. Subsections 133(1) and (2), while retaining the intent of the corresponding subclauses in the ART Bill, do not incorporate reference to a first-tier review by the Tribunal of an original decision. These references are not relevant to an application for review made under subsection 175(1) of the VEA.
940. Clause 60: After section 133
1. This clause inserts a new section 133A after clause 133 of the ART Bill for the purposes of applying the ART Bill to an application for review under subsection 175(1) of the VEA.
2. New section 133A preserves the present position under section 176(7) of the VEA. The section sets out the circumstances in which the ART need not make another decision in substitution for a decision set aside. The section replicates the operation of subsection 176(7) of the VEA in respect of the AAT.
942. Clause 61: Subsections 134(1) and (2)
1. This clause substitutes a new subsection 134(1) for subclauses 134(1) and (2) of the ART Bill for the purposes of applying the ART Bill to an application for review under subsection 175(1) of the VEA.
2. This clause, while retaining the intention of the subsections in the unmodified ART Bill, omits the reference to provisions that apply to a first-tier review by the Tribunal. Those references are not relevant to application for review made under subsection 175(1) of the VEA.
943. Clause 62: Subsection 134(3)
1. This clause changes the reference to ‘Subsections (1) and (2) do’ in subclause 134(3) of the ART Bill to ‘Subsection (1) does’. Subclause 134(2) is disapplied by clause 61 of this Schedule.
944. Clause 63: Paragraphs 135(3)(a) and (b)
1. This clause substitutes ‘first-tier’ for ‘original’ in paragraphs 135(3)(a) and (b) of the ART Bill. This is because the paragraphs apply to a first-tier decision for the purposes of an application for review made under subsection 175(1) of the VEA.
2. The heading to subclause 135(3) of the ART Bill is also modified by omitting the word ‘original’.
945. Clause 64: Subsection 135(3)
3. This clause changes the reference to ‘original decision has’ to ‘first-tier decision has’ in subclause 135(3) of the ART Bill. This is because the subclause applies to a first-tier decision for the purposes an application for review made under subsection 175(1) of the VEA.
946. Clause 65: After section 135
1. This clause inserts new sections 135A and 135B after clause 135 of the ART Bill for the purposes of applying the ART Bill to an application for review under subsection 175(1) of the VEA.
2. Section 135A preserves the present position under subsections 177(1), (2), (3) and (4) of the VEA that set out the dates on which certain determinations relating to payment of pension become effective and will operate in the same manner in relation to the ART.
1. Section 135B preserves the present position under section 178 of the VEA that sets out the period of operation of certain decisions of the AAT and will apply in the same manner in relation to the certain decisions of the ART.
949. Clause 66: Paragraph 136(1)(a)
1. This clause omits the reference to ‘or (4)’ in subclause 136(1)(a) of the ART Bill. Subclause 133(4) of the ART Bill is disapplied by clause 59 of this Schedule.
950. Clause 66A: Subsection 87(1)
1. This clause changes references to the decision-maker in the ART Bill to references to the Commission.
951. Clause 67: Subsection 139(1)
1. This clause substitutes ‘a first-tier decision’ for ‘an original decision’ in subclause 139(1) of the ART Bill. This is because the clause applies to a first-tier decision for the purposes of an application for review made under subsection 175(1) of the VEA.
952. Clause 68: After subsection 142(2)
1. This clause inserts a new subsection 142(2A) after subclause 142(2) of the ART Bill for the purposes of applying the ART Bill to an application for review under subsection 175(1) of the VEA.
2. Subsection 142(2A) preserves the present position under paragraph 176(4)(b) of the VEA which provides that an application for review of a first-tier decision cannot be accepted if it is more than 12 months after the day on which the document setting out the terms of the decision was given to the applicant. This limitation will continue under the ART.
953. Clause 68A: Subsection 87(1)
1. This clause changes a reference to the decision-maker in the ART Bill to a reference to the Commission.
954. Clause 69: Paragraph 153(2)(a)
1. This clause omits the reference to ‘an original decision or’ in paragraph 153(2)(a) of the ART Bill. The reference is not relevant to an application for review made under subsection 175(1) of the VEA.
955. Clause 70: Subsection 159(1)
1. This clause substitutes ‘a first-tier decision’ for ‘an original decision’ in subclause 159(1) of the ART Bill. This is because the subclause applies to a first-tier decision for the purposes of an application for review made under subsection 175(1) of the VEA.
956. Clause 71: Subsection 159(2)
1. This clause disapplies subclause 159(2) of the ART Bill and substitutes a new subsection 159(2) for the purposes of applying the ART Bill to an application for review made under subsection 175(1) of the VEA.
2. The new subsection provides that the Tribunal or other person may give a document or thing to the Commission. This modification is required because the Commission bears the responsibility for the relevant matters under the VEA rather than the ‘Agency Head’ (as defined in the ART Bill).
957. Clause 72: Paragraph 159(3)(b)
1. This clause omits the reference to ‘original’ in paragraph 159(3)(b) of the ART Bill. The reference to an ‘original’ decision is not relevant to an application for review made under subsection 175(1) of the VEA.
958. Clause 73: Division 1 of Part 10
1. Division 1 of Part 10 of the ART Bill is disapplied as it is not relevant to the operation of the VEA.
959. Clause 74: Subsections 167(1) and (3)
1. This clause disapplies subclauses 167(1) and (3) of the ART Bill as they relate to appeals to the Federal Court from a first-tier decision by the Tribunal and are not relevant to an application for review made under subsection 175(1) of the VEA.
960. Clause 75: Subsections 168(1) to (3)
1. This clause disapplies subclauses 168(1) to (3) of the ART Bill. These subclauses relate to time limits for instituting appeals from a first-tier decision by the Tribunal and are not relevant to an application for review made under subsection 175(1) of the VEA.
961. Clause 76: Subsections 168(6) and (7)
1. This clause omits the references to subclauses 168(1) and (3) from subclauses 168(6) and (7) of the ART Bill. Subclauses 168(1) and (3) are disapplied by clause 75 of this Schedule.
962. Clause 77: Subsection 169(4) (note)
1. This clause disapplies the note after subclause 169(4) of the ART Bill and substitutes a new note. The new note provides that a review remitted to the Tribunal from the Federal Court would be a second-tier review.
963. Clause 78: Paragraph 171(2)(a)
2. This clause omits the reference to ‘a first-tier decision or’ in paragraph 171(2)(a) of the ART Bill. The omitted reference is to a first-tier review by the Tribunal and is not relevant to an application for review made under subsection 175(1) of the VEA.
964. Clause 79: Paragraph 171(3)(a)
1. This clause disapplies paragraph 171(3)(a) of the ART Bill. The paragraph refers to a first-tier review by the Tribunal and is not relevant to an application for review made under subsection 175(1) of the VEA.
965. Clause 80: Subparagraph 171(3)(b)(iii)
1. This clause omits the references to ‘original’ from subparagraph 171(3)(b)(iii) of the ART Bill. The reference to an ‘original’ decision is not relevant to an application for review made under subsection 175(1) of the VEA.
967. Clause 81: At the end of section 6
1. This clause inserts subsection (2) at the end of clause 6 of the ART Bill. Subsection (2) provides that an expression in the ART Bill that is also used in the VEA has the same meaning as it has in the VEA.
968. Clause 82: Subsections 55(2) and (3)
1. This clause disapplies subclauses 55(2) and (3) of the ART Bill. Where an application for review has been made under sections 175(2), (2AAA), (2AA) or (4) of the VEA, then the decision-maker is the Commission in all cases. Subclauses 55(2) and (3) of the ART Bill are, therefore, not relevant to applications made under these subsections.
969. Clause 83: At the end of section 57
1. This clause inserts a new subsection 57(6) at the end of clause 57 of the ART Bill. This new subsection preserves the present position under paragraph 176(3)(a) of the VEA. It provides that clause 57 does not apply to a person if the person has been given a copy of the decision and the statement related to that decision in accordance with section 57E or 118ZX of the VEA.
970. Clause 83A: Subsections 84(4) to (6)
3. This clause disapplies subclauses 84(4) to (6) of the ART Bill. The disapplied subclauses are not relevant to an application for review made under subsection 175(2), (2AAA), (2AA) or (4) of the VEA.
971. Clause 84: After section 133
1. This clause inserts a new section 133A after clause 133 of the ART Bill. Section 133A preserves the present position under subsections 176(8) and (9) of the VEA. The new section describes the circumstances in which the ART is not required to make another decision in substitution for a decision set aside.
973. Clause 85: After section 135
1. This clause inserts a new section 135A after clause 135 of the ART Bill. Section 135A preserves the present position under subsections 177(3), (4), (5), (5A), (5B), (5C) and (6) of the VEA. The new section describes the effective dates of certain determinations relating to pensions, allowances and seniors health card.
975. Clause 86: After subsection 142(2)
1. New subsection 142(2A) preserves the present position under 176(4)(b) of the VEA. This paragraph provides that an application for review of an original decision cannot be accepted if it is more than 12 months after the day on which the document setting out the terms of the decision was given to the applicant. This paragraph will continue to operate in the same manner in relation to an application for review to the ART.
2. This Schedule makes consequential amendments of the Social Security Act 1991 and the Social Security (Administration) Act 1999 (SS (Administration) Act).
1. Defines the terms ‘Administrative Review Tribunal’, ‘ART’, ‘ART Act’ and ‘ISD executive member’.
980. Item 2: Subsection 23(1) (definition of decision)
1. This item changes a reference to the AAT Act to a reference to the ART Bill.
981. Item 3: Subsection 23(1) (definition of decision) (note)
1. This item repeals the note at the end of subsection 23(1). With the repeal of the AAT Act (see clause 4 of this Bill), this note is obsolete.
982. Item 4: Subsection 1184(2) (note)
1. The note at the end of subsection 1184(2) refers to a particular decision of the AAT. With the repeal of the AAT Act (see clause 4 of this Bill), this note is obsolete.
983. Item 5: Paragraph 1184A(2)(a)
1. This item changes the reference to an application for review by the SSAT to a reference to an application to the ART.
984. Item 6: Subsection 1222(1) (note)
1. The note at the end of subsection 1222(1) lists the situations in which a debt may be owed to the Commonwealth under Part 5.2 of the Social Security Act 1991. One such situation is where the debt arises from an AAT stay order. The provision under which the debt arises is section 1223AB of the Social Security Act.
2. The ART will have a similar power to make a stay order. Section 1223AB is therefore amended to ensure that if a person’s appeal to the ART is unsuccessful, any overpayment paid to the person as a result of the stay order is a debt due to the Commonwealth. As a consequence of this change, the note at the end of subsection 1222(1) is amended by this item to refer to debts arising from an ART stay order.
985. Item 7: Subsection 1222(2) (table item 4)
1. Item 4 in the table at the end of subsection 1222(2) also refers to an AAT stay order. This item changes the reference to the AAT to a reference to the ART.
986. Item 8: Paragraph 1223AB(a)
1. Section 1223AB outlines the circumstances in which a debt can arise where the AAT has made a stay order. Section 1223AB operates where a person applies for review of a decision by the AAT (see paragraph (a)) and the AAT makes a stay order under the relevant provision of the AAT Act (see paragraph (b)).
2. This item changes references to the AAT (including the reference in the heading) to references to the ART.
987. Item 9: Paragraph 1223AB(b)
1. This item changes the reference to a stay order made by the AAT under subsection 41(2) of the AAT Act, to a reference to an order made by the ART under clause 121 of the ART Bill. The amendment ensures that if a person’s appeal to the ART is unsuccessful, any overpayment paid to the person as a result of the stay order is a debt due to the Commonwealth.
988. Item 10: Section 1223AB (note 1)
1. Note 1 to section 1223AB refers to a provision of the AAT Act that impacts on the operation of section 1223AB. With the repeal of the AAT Act (see clause 4 of this Bill), this note is obsolete.
989. Item 11: Subsection 1237AAB(2)
1. This item repeals existing subsection 1237AAB(2) and substitutes a new subsection 1237AAB(2).
2. The new provision operates where the Secretary to the Department of Family and Community Services (Secretary) agrees to settle debt recovery proceedings that are before the ART on the basis that the debtor will pay less than the full amount of the debt in satisfaction of the debt and the Tribunal makes a decision that is consistent with the agreement. Where this happens, the Secretary is required to waive the right to recover the difference between the debt and the agreed amount.
3. This provision ensures that the effect of existing subsection 1237AAB(2) is carried over into the ART regime. In addition, the heading to subsection 1237AAB(2) is amended to reflect the substance of the new provision.
1. Section 8 provides that the Secretary is to have regard to certain factors in administering the social security law. One of these factors (paragraph (f)) is the need to apply government policy in accordance with the law and with due regard to relevant decisions of the SSAT and the AAT. Decisions made by these Tribunals will continue to be relevant for the purposes of section 8 even after the Tribunals are abolished. However, decisions of the new Tribunal will also need to be taken into account in the administration of the social security law. Accordingly, this item amends paragraph (f) so that it also refers to the ART.
992. Item 13:
Paragraph 9(1)(b)
993. Item 14:
Subsection 9(2)
1. These items amend the provisions so that, if a Minister prepares a Government policy statement, the statement can be given to the ART and the ART must take account of the statement.
1. This item repeals subsection 9(4). However, the effect of subsection 9(4) is continued into the new ART regime by paragraph 133(1)(b) of the ART Bill, as inserted by Schedule 3 to the SS (Administration) Act (see paragraph 3 of this memorandum). This provision ensures that the ART is required to have regard to any Government policy statements in exercising its powers.
995. Item 16: Subsection 10(1)
1. The amendment made by this item enables the Secretary and the President of the ART to agree on administrative arrangements.
996. Item 17: Subsection 10(1)
1. This item also amends subsection 10(1) so that administrative arrangements made between the Secretary and President are done with the aim of furthering the objectives of the ART Bill as modified by Schedule 3 to this Bill.
997. Item 18: Paragraph 126(2)(b)
1. The amendment made by this item ensures that the Secretary may review a decision even though an application has been made to the ART for review of the decision.
2. A similar rule currently operates in relation to Secretary initiated review where a person has applied to the SSAT or the AAT for review of a decision.
998. Item 19: Paragraph 128(1)(b)
1. Section 128 currently deals with the situation where the Secretary reviews a decision at a time when an application has been made to the SSAT (see subsection 128(1)) or AAT (see subsection 128(2)) for review of the decision. Where this happens, the Secretary is required to give the Executive Director or the Registrar of the AAT notice of the Secretary’s decision.
2. This item changes the reference to the SSAT in subsection 128(1), to a reference to the ART. The heading is also amended so that it refers to the President of the ART rather than to the Executive Director of the SSAT or the Registrar of the AAT.
999. Item 20: Subsection 128(1)
1. This item changes the reference to the Executive Director of the SSAT to a reference to the President of the ART.
1000. Item 21: Subsection 128(2)
1. This item repeals subsection 128(2) on the basis that applications to the ART are covered by the rule in subsection 128(1), as amended above.
1001. Item 22: Paragraph 137(1)(f)
1. Section 137 outlines the situations in which a decision cannot be revived.
2. This item makes a consequential amendment of paragraph 137(1)(f) to take account of the introduction of the ART.
1002. Item 23: Paragraph 137(3)(f)
1. This item makes a similar consequential amendment of paragraph 137(3)(f).
1003. Item 24: Paragraph 138(1)(a)
1. Section 138 sets out the requirements for a notice of decision where the decision is made following customer initiated review (that is, a notice under section 136). The provision requires the notice of decision to contain statements regarding the customer’s further review rights. At present, these review rights lie with the SSAT and then the AAT.
2. This item amends paragraph 138(1)(a) to take account of the introduction of the ART and the abolition of the SSAT and the AAT. The amendment ensures that a notice of decision under section 136 must contain a statement to the effect that further review rights lie with the ART.
1004. Item 25: Subparagraph 138(1)(b)(iii)
1. This item makes a technical amendment of subparagraph 138(1)(b)(iii). This amendment is necessary because of the repeal of subparagraph 138(1)(c).
1005. Item 26: Paragraph 138(1)(c)
1. This item repeals paragraph 138(1)(c). This provision is superfluous in light of the amendments made to subsection 138(1).
1006. Item 27: Division 3 of Part 4 (heading)
1. Division 3 of Part 4 currently deals with review by the SSAT.
2. This item amends the heading so that it refers to review by the ART. The provisions in Division 3 are then modified so that they relate to review by the ART.
1007. Item 28: Subdivision A of Division 3 of Part 4 (heading)
1. The heading of Subdivision A is repealed by this item.
1. Section 139 is the only provision in Subdivision A. It provides for the continuance of the SSAT.
2. With the abolition of this Tribunal, section 139 is no longer relevant and is therefore repealed by this item.
1009. Item 30: Subdivision B of Division 3 of Part 4 (heading)
1. This item repeals the heading to Subdivision B. Dividing Part 4 into subdivisions is no longer required.
1. Section 141 sets out the objectives of the SSAT. With the abolition of this Tribunal, section 141 becomes redundant and is therefore repealed by this item.
1011. Item 32: Subsection 142(1)
1. Subsection 142(1) allows a person to seek review of a decision by the SSAT if the decision has been the subject of internal review under section 126 or 135 of the SS (Administration) Act.
2. SSAT review is being replaced by ART review. This item therefore amends subsection 142(1) to enable a person to seek ART review of a decision that has been the subject of internal review.
3. The heading to the subsection is also amended to reflect the changes made to subsection 142(1).
1012. Item 33: Subsection 142(2)
1. Subsection 142(2) deals with the situation where the Secretary or Chief Executive Officer of Centrelink has personally made a decision. The provision ensures that a person can seek review of such a decision even though it has not been through the internal review process.
2. This item amends subsection 142(2) so as to enable a person to apply for ART review of such a decision.
1013. Item 34: Subsections 143(1) and (2)
1. Section 143 ensures that the SSAT can only review a decision under section 544B or 606 of the Social Security Act to the extent that it relates to the terms of an activity agreement that is in force.
2. SSAT review is being replaced by ART review. This item changes the reference to the SSAT to a reference to the ART.
1. Section 144 provides that the SSAT cannot review certain specified decisions. The amendment made by this item ensures that the ART is subject to the same restrictions.
1015. Item 36: Paragraph 144(s)
1. Paragraph 144(s) refers to a decision relating to the Secretary’s power under section 182 to settle proceeding before the AAT.
2. Section 182 is repealed by this Schedule. However, paragraph 109(a) of the ART Bill recognises that the Secretary and another participant to proceedings before the ART may settle a matter. Where this happens, the Tribunal may make a decision or take action that is consistent with the agreement.
3. Paragraph 144(s) is therefore amended so that it refers to the Secretary’s power to make an agreement mentioned in paragraph 109(a) of the ART Bill.
1016. Item 37: After section 144
1. This item inserts a new section 144A. This new provision ensures that the Income Support Division of the ART reviews decisions made under the social security laws in accordance with the ART Bill, as modified by Schedule 3 to the SS (Administration) Act.
1018. Item 38: Paragraph 145(1)(c)
1. Section 145 deals with the situation where an adverse decision is made and the person affected by the decision applies to the SSAT for review of the decision. The provision enables the Secretary to continue payment as if the adverse decision had not been made pending the outcome of the SSAT review.
2. This item changes the reference to the SSAT to a reference to the ART.
1019. Item 39: Subparagraphs 145(4)(b)(i) and (ii)
1. This item also changes the reference to the SSAT to a reference to the ART.
1020. Item 40: Paragraph 147(1)(b)
1. Section 147 deals with the situation where a person fails to agree to the terms of a Youth Allowance Activity Agreement and seeks SSAT review of that decision within 14 days after being notified of the decision. Where this happens, youth allowance continues to be payable as if the decision had not been made, pending the outcome of the review.
2. This item changes the reference to ‘Social Security Appeal Tribunal’ to a reference to ‘ART’.
1021. Item 41: Paragraph 148(1)(b)
1. Section 148 deals with the situation where a person fails to agree to the terms of a Newstart Allowance Activity Agreement and seeks SSAT review of that decision within 14 days after being notified of the decision. Where this happens, newstart allowance continues to be payable as if the decision had not been made, pending the outcome of the review.
2. This item changes the reference to the SSAT to a reference to the ART.
1022. Item 42: Sections 149 to 156
1. Sections 149 to 156 set out the powers of the SSAT in reviewing a decision, provide for the date of effect of an SSAT decision and deal with other procedural matters such as application requirements. In relation to ART review, similar matters are dealt with in the ART Bill.
2. With the abolition of the SSAT, these provisions become obsolete and are repealed.
3. This item also inserts a new section 149 into the SS (Administration) Act. New section 149 picks up the existing rule in subsection 149(4) (of which there is no equivalent in the ART Bill). Under new section 149, the Secretary may direct, in certain circumstances, that an event be taken to have occurred for the purposes of the social security law.
1024. Item 43: Divisions 4 and 5 of Part 4
1. Division 4 of Part 4 outlines the procedures for review by the SSAT. Division 5 provides for review by the AAT. With the abolition of the SSAT and AAT, these provisions become redundant and are therefore repealed.
2. SSAT and AAT review is replaced by ART review. The procedures and rules relating to ART review are dealt with in the ART Bill, as modified by Schedule 3 to the SS (Administration) Act. These Schedule 3 modifications are outlined in Schedule 11 to this Bill.
1025. Item 44: Subclause 1(1) of Schedule 1 (definition of AAT)
1. This item repeals the definition of ‘AAT’. With the repeal of the AAT Act (see clause 4 of this Bill), this definition is obsolete.
1026. Item 45: Subclause 1(1) of Schedule 1 (definition of SSAT)
1. This item repeals the definition of ‘SSAT’. With the abolition of the SSAT, this definition becomes redundant.
2. Schedule 4 provides the forms of oath and affirmation for people who are appointed as Executive Director, Director or member of the SSAT. With the repeal of the SSAT, these forms will no longer be required. This item therefore repeals Schedule 4.
1029. Item 1: Schedule 3
2. Item 1 replaces Schedule 3 to the Social Security (Administration) Act 1999 (SS (Administration) Act) with a new Schedule. The replacement Schedule sets out modifications of the ART Bill applicable, in accordance with the new paragraph 144A(b) of the SS (Administration) Act (inserted by item 38 of Schedule 10), for the purpose of review of certain decisions made under the Act.
3. The clauses of the replacement Schedule are explained below.
1. This clause inserts a definition of ‘1991 Act’, meaning the Social Security Act 1991.
1032. Clause 2: Section 6 (definition of decision-maker)
1. This clause disapplies the definition of ‘decision-maker’ for the purposes of ART review of decisions under the social security law. The decision-maker will be the Secretary to the Department of Family and Community Services (Secretary). This effect is consistent with the current review regime for social security decisions.
1. This clause inserts a definition of ‘Secretary’.
1. This clause inserts a definition of ‘social security law’. This term has the same meaning as in the Social Security Act.
1. This clause inserts a definition of ‘social security payment’. This term has the same meaning as in the Social Security Act.
1036. Clause 6: At the end of section 50
1. This clause inserts a new provision which allows the Secretary to delegate his or her powers and functions under the ART Bill in the same way as section 234 of the SS (Administration) Act provides for the delegation of the Secretary’s powers under the social security law.
1. Clause 55 of the ART Bill defines ‘decision-maker’. This definition is not required for the ART review of decisions under the social security law. The decision-maker will be the Secretary.
1038. Clause 8: Before paragraph 56(5)(a)
1. This clause modifies, for the purposes of social security law, subclause 56(5) of the ART Bill so that, if the Secretary initiates internal review of a social security decision and affirms the original decision, then the Secretary is not required to notify the customer concerned about the review decision. This reflects the current position regarding notification of review decisions.
1039. Clause 9:
Subsection 57(1)
1040. Clause 10:
Subsection 57(2)
1041. Clause 11:
Subsection 57(3)
1042. Clause 12:
Paragraphs 57(4)(a) and
(b)
1043. Clause 13:
Subsections 57(4) and (5)
1. Clause 57 of the ART Bill outlines the circumstances in which a statement of reasons relating to an original decision must be provided by a decision-maker to a person whose interests are affected by the original decision.
2. Consistent with the notion that the Secretary is the ‘decision-maker’ for the purposes of ART review of a social security decision, clauses 9 to 13 of this Schedule change references to ‘decision-maker’ in clause 57 of the ART Bill (including in the heading to subclause 57(2)) to references to ‘Secretary’.
1044. Clause 14:
Paragraphs 58(1)(a) and
(b)
1045. Clause 15:
Subsection 58(1)
1046. Clause 16:
Subsection 58(2)
1047. Clause 17:
Subsection 58(3)
1. Clause 58 of the ART Bill deals with the situation where a person requests a statement of reasons and the decision-maker does not give the person the statement within 28 days of the request.
2. Consistent with the notion that the Secretary is the ‘decision-maker’ for the purposes of ART review of a social security decision, clauses 14 to 17 of this Schedule change references to ‘decision-maker’ in clause 58 of the ART Bill, to references to ‘Secretary’.
1048. Clause 18:
Paragraph 59(1)(a)
1049. Clause 19:
Subsection 59(2)
1050. Clause 20:
Subsection 59(3)
1. Clause 59 of the ART Bill provides for the review of the adequacy of a statement of reasons provided by a decision-maker. Consistent with the notion that the Secretary is the ‘decision-maker’ for the purposes of ART review of a social security decision, clauses 18 to 20 of this Schedule change references to ‘decision-maker’ in clause 59 of the ART Bill, to references to ‘Secretary’.
1051. Clause 21: Subsection 60(2)
1. Clause 60 of the ART Bill provides for the exclusion of confidential material in prescribed circumstances from a statement of reasons.
2. Clause 21 of this Schedule changes the reference to ‘decision-maker’ to a reference to ‘Secretary’.
1052. Clause 22: Paragraph 63(a)
1. Clause 63 of the ART Bill allows a decision-maker to apply to the ART for leave to make an application for review of the first-tier decision.
2. Clause 22 of this Schedule changes the reference to ‘decision-maker in relation to the decision’ to a reference to ‘Secretary’.
1053. Clause 23: Subparagraph 65(3)(a)(ii)
1. Clause 65 of the ART Bill provides for the determination of an application to the Tribunal for leave to make an application for review of a first-tier decision.
2. Clause 23 of this Schedule changes the reference to ‘decision-maker in relation to the original decision’ to a reference to ‘Secretary’.
1054. Clause 24: Subsection 65(7)
1. Similarly, this clause changes the reference to ‘decision-maker’ to a reference to ‘Secretary’.
1055. Clause 25: Subsection 67(2)
1. Clause 67 of the ART Bill provides for second-tier review of an original decision. Subclause 67(2) defines ‘decision-maker’ in relation to the first-tier decision.
2. As the Secretary is the ‘decision-maker’ for the purposes of ART review of social security decisions (both in relation to first- and second-tier review), subclause 67(2) becomes obsolete and is therefore disapplied.
1056. Clause 26: Division 1 of Part 6 (heading)
1. The heading of Division 1 is modified for the purposes of social security law to reflect its content.
1. Clause 76 of the ART Bill ensures that the decision-maker is given notice of an application for first-tier review, for leave to make an application for first- or second-tier review.
2. Clause 27 of this Schedule modifies clause 76 for the purposes of social security law so that it is the Secretary who must be given notice of such matters. The heading to clause 76 is also modified for the purposes of social security law to reflect this.
1058. Clause 28:
Subsection 77(1)
1059. Clause 29:
Subsection 77(1)
1060. Clause 30:
Paragraph 77(1)(b)
1061. Clause 31:
Paragraph 77(2)(b)
1062. Clause 32:
Subsection 77(3)
1. Clause 77 of the ART Bill requires a decision-maker who is given notice of a first-tier review to provide the Tribunal with a statement of reasons for the decision and any other relevant documents.
2. Consistent with the notion that the Secretary is the ‘decision-maker’ for the purposes of ART review of a social security decision, clauses 28 to 32 of this Schedule change references to ‘decision-maker’ in clause 77 (including the heading) to references to ‘Secretary’.
1063. Clause 33:
Paragraph 78(1)(a)
1064. Clause 34:
Subsection 78(1)
1065. Clause 35:
Paragraph 78(1)(d)
1066. Clause 36:
Subsection 78(2)
1. Clause 78 of the ART Bill deals with the situation where a statement of reasons provided by a decision-maker is not considered adequate by the ART.
2. Consistent with the notion that the Secretary is the ‘decision-maker’ for the purposes of ART review of a social security decision, clauses 33 to 36 of this Schedule change references to ‘decision-maker’ in clause 78, to references to ‘Secretary’.
1067. Clause 37:
Subsection 79(1)
1068. Clause 38:
Subsection 79(2)
1. Under clause 79 of the ART Bill, if the Tribunal considers that the decision-maker has or may have other documents relevant to a review, the Tribunal can require a decision-maker to give those documents to the Tribunal.
2. Consistent with the notion that the Secretary is the ‘decision-maker’ for the purposes of ART review of a social security decision, clauses 37 to 38 of this Schedule change references to ‘decision-maker’ in clause 79 (including the heading) to references to ‘Secretary’.
1069. Clause 39: After section 79
1. This clause inserts a new section 79A. New section 79A continues the effect of section 166 of the SS (Administration) Act that is repealed by Schedule 10 to this Bill.
2. Under new section 79A, the Tribunal may request the Secretary to exercise his or her power under section 192 of the SS (Administration) Act if the Tribunal considers that a person has information or a document relevant to a review being conducted by the Tribunal. Under section 192, the Secretary may require a person to give information or produce a document for specified purposes (that is, if the information or document is relevant to the rate of a social security payment that is or was applicable to a person).
1071. Clause 40:
Subsection 82(2)
1072. Clause 41:
Subsection 82(3)
1073. Clause 42:
Subsection 82(4)
1. Under clause 82 of the ART Bill, the Tribunal may decide that a decision-maker is not required to comply with a requirement to provide the Tribunal with a statement of reasons or other documents (for example, for reasons of confidentiality).
2. Consistent with the notion that the Secretary is the ‘decision-maker’ for the purposes of ART review of a social security decision, clauses 40 to 42 of this Schedule change references to ‘decision-maker’ in clause 82, to references to ‘Secretary’.
1074. Clause 43: Paragraph 84(1)(b)
1. Clause 84 of the ART Bill specifies the participants in a review. The ‘decision-maker’ is a participant.
2. Clause 43 of this Schedule modifies paragraph 84(1)(b) for the purposes of social security law to ensure that the Secretary (and not the decision-maker) is a participant in a review.
1075. Clause 43A: Subsections 84(4) to (6)
3. This clause disapplies subclauses 84(4) to (6) of the ART Bill. Those subclauses are unnecessary because the Secretary (and not the decision-maker) is a participant in a review.
1. This clause disapplies clause 85 of the ART Bill. This provision is obsolete because the Secretary (and not the decision-maker) is a participant in a review.
1077. Clause 45: Subsection 87(1)
1. Clause 87 of the ART Bill allows a participant (except the applicant, the decision-maker or the Attorney-General) to apply to the Tribunal to cease to be a participant.
2. Clause 34 of this Schedule modifies subclause 87(1) for the purposes of social security law to take account of the fact that the Secretary, rather than the decision-maker, is a participant in a review.
2. Clause 94 of the ART Bill requires a decision-maker who is a participant in a review to assist the Tribunal to make its decision. This provision is modified for the purposes of social security law so that the Secretary (and not the decision-maker) is under this obligation. The heading to clause 94 is modified in a similar manner.
1079. Clause 47: Paragraph 96(3)(a)
1. Subclause 96(3) of the ART Bill allows the Tribunal to review a matter on ‘the papers’ where the decision-maker has provided the Tribunal with all the relevant information (that is, a statement of reasons and any other required documents) and the applicant has had the opportunity of providing the Tribunal with his or her documents.
2. As the Secretary is responsible for providing the Tribunal with relevant information, the reference in paragraph 96(3)(a) to ‘decision-maker’ is changed to a reference to ‘Secretary’.
1080. Clause 48: At the end of section 105
1. This clause inserts a new subsection 105(2). The new provision makes it clear that subclause 105(1) of the ART Bill does not prevent a delegate of the Secretary from appearing before the Tribunal.
1081. Clause 49: Subsection 108(2)
1. Under clause 108(2) of the ART Bill, the practice and procedure determined by the Tribunal for the conduct of a review may require a participant (including the Secretary) to do specified things.
2. Clause 49 of this Schedule ensures that the Secretary cannot be subject to a requirement under subclause 108(2). This change ensures that the Secretary’s role as a participant in ART review remains similar to the role of the Secretary in SSAT review.
1082. Clause 50: After subsection 110(1)
1. Under subclause 110(1) of the ART Bill, the practice and procedure directions may require a conference of participants be held or that participants take part in some other process.
2. New subsection 110(1A) excludes the Secretary from this requirement. This change ensures that the Secretary’s role as a participant in ART review remains similar to the role of the Secretary in SSAT review.
1083. Clause 51: Subsection 117(2)
1. Under clause 117(2) of the ART Bill, the practice and procedure determined by an inquiry officer for the conduct of a review may require a participant (including the Secretary) to do specified things.
2. Clause 51 of this Schedule ensures that the Secretary cannot be subject to a requirement under subclause 117(2). This change ensures that the Secretary’s role as a participant in ART review remains similar to the role of the Secretary in SSAT review.
1084. Clause 52: After subsection 121(1)
1. Subclause 121(1) of the ART Bill provides the general rule that an application to the Tribunal for first-tier review, for leave to apply for second-tier review or for second-tier review does not affect the operation or implementation of the decision that is the subject of the application.
2. New subsection 121(1A) makes it clear that subclause 121(1) does not affect the operation of the provisions in the SS (Administration) Act that allow or require the Secretary to continue payment pending the review.
3. Clause 52 of this Schedule also changes a reference to ‘decision-maker’ in the heading to a reference to ‘Secretary’.
1. This clause disapplies clause 123 of the ART Bill in recognition of the Secretary’s power to review a decision even though an application has been made to the ART for review of the decision (see section 126 of the SS (Administration) Act as amended by Schedule 10 to this Bill).
1086. Clause 54:
Paragraph 124(1)(a)
1087. Clause 55:
Paragraph 124(1)(b)
1088. Clause 56:
Paragraph 124(2)(a)
1089. Clause 57:
Subsection 124(3)
1090. Clause 58:
Subsections 124(4), (5)
and (6)
1091. Clause 59:
Paragraphs 124(7)(a) and (b)
1. Clause 124 of the ART Bill allows the Tribunal to request a decision-maker to reconsider a decision where new information relevant to the decision has come to light.
2. As the Secretary is responsible for decision-making under the social security law, clauses 54 to 59 of this Schedule modify clause 124 (including the relevant headings) for social security law by changing references to ‘decision-maker’ to references to ‘Secretary’.
1092. Clause 60:
Subsection 125(1)
1093. Clause 61:
Subsection 125(2)
1094. Clause 62:
Subsection 125(3)
1095. Clause 63:
Subsections 125(4), (5) and (6)
1. Clause 125 of the ART Bill allows the Tribunal to ask a decision-maker to reconsider a decision.
2. As the Secretary is responsible for decision-making under the social security law, clauses 60 to 63 of this Schedule modify clause 125 (including the relevant headings) for social security law by replacing references to ‘decision-maker’ with references to ‘Secretary’.
1096. Clause 64: Subsections 126(1) and (2)
1. This clause modifies for the purposes of social security law the section references in subclauses 126(1) and (2) of the ART Bill so that they reflect several changes made by Schedules 10 and 11 of this Bill: that is, the continuing applicability of section 126 of the SS (Administration) Act and the disapplication of clause 123 of the ART Bill for social security purposes.
1097. Clause 65: Subsection 126(3)
1. This clause replaces subclause 126(3) of the ART Bill for similar reasons.
1098. Clause 66: Division 1 of Part 8 (note after the Division heading)
1. This clause changes the reference to ‘decision-maker’ to a reference to ‘Secretary’.
1099. Clause 67: Subsection 128(1)
1. Clause 128 of the ART Bill deals with the situation where a participant (other than the decision-maker or the Attorney-General) fails to attend the review.
2. Clause 67 of this Schedule changes the reference to ‘decision-maker’ to a reference to ‘Secretary’.
1. Clause 129 of the ART Bill deals with the situation where a participant (other than the decision-maker or the Attorney-General) fails to comply with the practice and procedure directions or other directions or obligations imposed by the Tribunal.
2. Clause 68 of this Schedule changes the reference to ‘decision-maker’ to a reference to ‘Secretary’.
1101. Clause 69: Subsection 133(1)
1. Clause 133 of the ART Bill deals with the powers of the Tribunal in reviewing a decision.
2. Clause 69 of this Schedule inserts new subsections 133(1), (1A) and (1B).
3. Under new subsection 133(1), the Tribunal may, in reviewing an original decision, exercise all the powers and discretions conferred on the Secretary under the social security law. The Tribunal is also required to have regard to any Government policy statement made under section 9 of the SS (Administration) Act and provided to the Tribunal.
4. New subsection 133(1A) lists those powers and discretions conferred on the Secretary under the social security law that are not to be exercised by the Tribunal in reviewing a decision.
5. New subsection 133(1B) allows the Tribunal, in reviewing a decision, to also exercise all the powers and discretions conferred on the Secretary under the Health Insurance Act 1973.
6. These provisions continue the effect of existing subsections 151(1), (2) and (3) of the SS (Administration) Act that outline the powers of the SSAT in reviewing a decision.
1102. Clause 70: Subsection 133(2)
1. This is a technical modification for the purposes of social security law that makes subclause 133(2) of the ART Bill subject to the new subsection 133(2A).
1103. Clause 71: Subparagraph 133(2)(c)(ii)
1. Under subclause 133(2) of the ART Bill, if the Tribunal sets aside an original decision, it must also either make a new decision or remit the matter to the decision-maker for reconsideration in accordance with any directions or recommendations of the Tribunal.
2. Clause 71 of this Schedule changes the reference to ‘decision-maker’ to a reference to ‘Secretary’.
1104. Clause 72: After subsection 133(2)
1. This clause inserts new subsection 133(2A). This new provision continues the effect of existing section 150 of the SS (Administration) Act into the new ART regime.
2. Under new subsection 133(2A), if the Tribunal is reviewing a decision relating to the terms of a Job Search Activity Agreement, a Youth Allowance Activity Agreement or a Newstart Activity Agreement, then the Tribunal must make a decision in writing either affirming the decision or setting the decision aside and remitting the matter to the Secretary for reconsideration in accordance with any directions or recommendations of the Tribunal.
1105. Clause 73: Subsection 133(3)
1. This clause takes account of the insertion of new provisions into clause 133 of the ART Bill.
1106. Clause 74: Subsection 133(4) (note)
1. The note at the end of subclause 133(4) refers to a ‘decision-maker’. This reference is changed to ‘Secretary’.
1107. Clause 75: After section 133
1. This clause inserts a new section 133A. This new provision continues the effect of existing subsections 149(2) and (3) of the SS (Administration) Act into the new ART regime.
2. New section 133A deals with assessment of payment following ART review.
3. New subsection 133A(1) operates where the Tribunal sets aside a decision and substitutes a new decision that a person is entitled to a social security payment. Where this happens, the Tribunal can either assess the rate payable to the person itself or ask the Secretary to make such an assessment.
4. New subsection 133A(2) is a similar provision that applies where the Tribunal decides that a person is entitled to a pension bonus.
1. This clause inserts a new section 133B. This new provision continues the effect of existing subsection 149(4) of the SS (Administration) Act into the new ART regime.
2. New section 133B applies where the Tribunal sets aside an original decision and is satisfied that an event that did not occur would have occurred but for the making of the original decision. Where this happens, the Tribunal may deem the event to have occurred for the purposes of the social security law.
1110. Clause 76:
Subsection 134(1)
1111. Clause 77:
Subsection 134(2)
1. Clause 134 of the ART Bill outlines the circumstances in which a decision of the Tribunal is taken to be a decision of a decision-maker.
2. Clauses 76 and 77 of this Schedule modify this provision for the purposes of social security law by changing references to ‘decision-maker’ to references to ‘Secretary’.
1112. Clause 78: Subsection 135(3)
1. This clause takes account of new subsection 135(5) and new section 135A.
1113. Clause 79: At the end of section 135
1. This clause inserts new subsection 135(4) and (5). These new provisions continue the effect of existing subsection 152(4) and (5) of the SS (Administration) Act into the new ART regime. New subsection 135(4) is a date of effect rule that limits the availability of arrears payments where a person applies for first-tier ART review of a decision more than 13 weeks after notice of the decision was given to the person.
1114. Clause 80: After section 135
1. This clause inserts a new section 135A. This new provision continues the effect of existing section 153 of the SS (Administration) Act.
2. New section 135A is a date of effect rule that applies to decisions relating to the terms of a Youth Allowance Activity Agreement or a Newstart Activity Agreement. A decision by the Tribunal on review of such a decision has effect from the time the decision is made or a later day if specified by the Tribunal.
1116. Clause 81: Subsection 136(2)
1. Subclause 136(2) of the ART Bill ensures that each participant and the decision-maker is given a copy of the Tribunal’s decision and, if the Tribunal has given written reasons for the decision, a copy of those reasons.
2. Clause 81 of this Schedule changes references to ‘decision-maker’ to references to ‘Secretary’.
1117. Clause 82: Subsection 139(1)
1. Clause 139 of the ART Bill provides for the return of documents to the decision-maker. As the Secretary is responsible for providing the relevant information and documents to the Tribunal in relation to the review of a social security decision, the reference to ‘decision-maker’ is changed to a reference to ‘Secretary’.
1118. Clause 83: Section 140 (note)
1. This clause changes the reference to ‘decision-maker’ to a reference to ‘Secretary’.
1119. Clause 84: Paragraph 153(2)(a)
1. Subclause 153(2) of the ART Bill provides for the payment of fees and allowances to participants in a review other than the decision-maker.
2. Clause 84 of this Schedule changes the reference to ‘decision-maker’ to a reference to ‘Secretary’.
2. This clause takes account of new subsection 155(2). The heading is also modified so that it more accurately reflects the content of clause 155.
1121. Clause 86: At the end of section 155
1. This clause inserts new subsections 155(2), (3) and (4). These new provisions continue the effect of existing section 176 of the SS (Administration) Act.
2. Under these new provisions, the Tribunal may determine that the Commonwealth is to pay certain costs associated with a review.
1122. Clause 87: Subsection 159(1)
1. Clause 159 of the ART Bill deals with the situations where the Tribunal or a person is permitted or required to give a document or thing to a decision-maker.
2. Clause 87 of this Schedule changes the reference to ‘decision-maker in relation to an original decision’ to a reference to ‘Secretary’.
1123. Clause 88: Subsection 159(2)
1. This clause disapplies subclause 159(2) of the ART Bill. This provision is obsolete, as the Secretary is effectively the decision-maker in relation to social security decisions.
1124. Clause 89: Subsection 167(5)
1. Under subclause 167(5) of the ART Bill, if the Tribunal makes a decision about the adequacy of a statement of reasons, the decision-maker or the person involved may appeal to the Federal Court for review of the decision of the Tribunal.
2. Clause 89 of this Schedule changes the reference to ‘decision-maker’ to a reference to ‘Secretary’.
2. This Schedule makes consequential amendments of the A New Tax System (Family Assistance) (Administration) Act 1999 (FA (Administration) Act).
1126. Item 1: Subsection 3(1) (definition of AAT)
1. With the repeal of the AAT Act (see clause 4 of this Bill) this definition is obsolete.
1127. Item 2: Subsection 3(1) (definition of AAT Act)
1. With the repeal of the AAT Act (see clause 4 of this Bill) this definition is obsolete.
1. This defines ‘ART’ as the ART.
1129. Item 4: Subsection 3(1) (definition of decision)
1. The definition of ‘decision’ is amended so that the term has the same meaning as in the ART Bill.
1130. Item 5: Subsection 3(1) (definition of Executive Director)
1. This item repeals the definition of ‘Executive Director’. The Executive Director is responsible for the overall operation and administration of the SSAT. With the abolition of the SSAT, this definition is obsolete.
1131. Item 6: Subsection 3(1) (definition of SSAT)
1. This item repeals the definition of ‘SSAT’. With the abolition of the SSAT, this definition is obsolete.
1. Section 73 outlines the circumstances in which a debt can arise where the AAT has made a stay order. Section 73 applies where a person applied for review of a decision by the AAT (see paragraph (a)) and the AAT makes a stay order under the relevant provision of the AAT Act (see paragraph (b)).
2. This item amends paragraph 73(a) so that it refers to an application for review by the ART (and not the AAT).
1. This item amends paragraph 73(b). The existing reference to a stay order made by the AAT under subsection 41(2) of the AAT Act is replaced with a reference to an order made by the ART under clause 121 of the ART Bill. The amendment ensures that if a person’s appeal to the ART is unsuccessful, any overpayment paid to the person as a result of the stay order is a debt due to the Commonwealth.
1134. Item 9: Subsection 100(2)
1. This item repeals existing subsection 100(2) and substitutes a new subsection 100(2).
2. The new provision operates where the Secretary to the Department of Family and Community Services (Secretary) agrees to settle debt recovery proceedings that are before the ART on the basis that the debtor will pay less than the full amount of the debt in satisfaction of the debt and the Tribunal makes a decision that is consistent with the agreement. Where this happens, the Secretary is required to waive the right to recover the difference between the debt and the agreed amount.
3. This provision ensures that the effect of existing subsection 100(2) is carried over into the ART regime. The heading to subsection 100(2) is also amended to reflect the substance of the provision.
1135. Item 10: Subsection 105(2)
1. Section 105 enables the Secretary to review a decision even though an application has been made to the SSAT or the AAT for review of the decision.
2. With the abolition of the SSAT and the AAT, it is no longer appropriate to refer to these Tribunals in section 105. However, as ART review is replacing SSAT and AAT review, subsection 105(2) is amended accordingly. The effect is that the Secretary can review a decision even though an application has been made to the ART for review of that decision.
1136. Item 11: Paragraph 106(6)(b)
1. Subsection 106(6) deals with the situation where the Secretary reviews an original decision and either varies the decision or sets it aside and substitutes a new decision after a person has applied to the SSAT or AAT for review of the original decision. Where this happens, the Secretary is required to provide written notice of the review decision to the Executive Director of the SSAT or Registrar of the AAT.
2. With the abolition of the SSAT and the AAT, it is no longer appropriate to refer to these Tribunals in subsection 106(6). However, as ART review is replacing SSAT and AAT review, paragraph 106(6)(b) and the heading to subsection 106(6) are amended accordingly.
1137. Item 12: Subsection 106(6)
1. This item also amends subsection 106(6). The existing reference to the Executive Director of the SSAT or Registrar of the AAT is replaced by a reference to the President of the ART.
1138. Item 13: Paragraph 109A(4)(b)
1. As a general rule, the SSAT cannot review a decision that has not been reviewed by the Secretary or an authorised review officer under Division 1 of Part 5. However, this does not prevent a person from applying to the SSAT for review of a decision despite not being entitled to do so. Subsection 109A(4) ensures that where this happens, the application for review by the SSAT is taken to be an application for internal review.
2. This item amends paragraph 109A(4)(b) so that if a person applies for ART review when the person is not entitled to do so, then the application is taken to be an application for internal review.
1139. Item 14: Subsection 109A(4)
1. This item further amends subsection 109A(4) to the same end.
1140. Item 15: Paragraph 109H(1)(a)
1. Section 109H sets out the requirements for a notice of decision where the decision is made following customer initiated review. The provision requires the notice of decision to contain statements regarding the customer’s further review rights. At present, these review rights lie with the SSAT and the AAT.
2. This item amends paragraph 109H(1)(a) to take account of the introduction of the ART and the abolition of the SSAT and the AAT. The amendment ensures that a notice of decision under section 109H must contain a statement to the effect that further review rights lie with the ART.
1141. Item 16: Subparagraph 109H(1)(b)(iii)
1. This item makes a technical amendment of subparagraph 109H(1)(b)(iii). This amendment is necessary because of the repeal of paragraph 109H(1)(c).
1142. Item 17: Paragraph 109H(1)(c)
1. This item repeals paragraph 109H(1)(c). This provision is superfluous in light of amendments made to paragraph 109H(1)(a).
1143. Item 18: Division 2 of Part 5 (heading)
2. Division 2 of Part 5 currently deals with review by the SSAT. This item amends the heading so that it refers to review by the ART. The provisions in Division 2 are then modified so that they relate to review by the ART.
1. Section 110 sets out the objectives of the SSAT. With the abolition of this Tribunal, section 110 becomes obsolete and is therefore repealed by this item.
1145. Item 20: Subsection 111(1)
1. The general rule is that a person can only apply to the SSAT for review of a decision if the decision has been subject to internal review under Division 1. This rule is embodied in subsection 111(1).
2. The amendment made by this item ensures that a similar general rule applies in relation to applications for ART review: that is, a person may apply to the Tribunal for review of a decision only if the decision has been subject to internal review.
3. A consequential amendment is also made to the heading to subsection 111(1) so that it reflects the new arrangement.
1146. Item 21: Subsection 111(1A)
1. A person cannot seek internal review of a decision that has been made by the Secretary personally or by an Agency Head personally. However, under subsection 111(1A), such a decision can be the subject of an application for review by the SSAT.
2. The amendment made by this item ensures that a similar rule applies in relation to applications for ART review.
1147. Item 22: Subsection 111(1B)
1. Subsection 111(1B) provides that if an agreement is made under subsection 91A(3) of the Child Support (Assessment) Act 1989 about an agreement, then both parties to the agreement are taken to be persons whose interests are affected by the decision. In effect, this means that either party to the agreement can apply to the SSAT for review of the decision.
2. This item repeals subsection 111(1B). However, the effect of subsection 111(1B) is continued by new subsection 61(1A) of the ART Bill (see modification made by Schedule 13 to this Bill).
1148. Item 23: Subsection 111(2)
1. This is a technical amendment that ensures that a person cannot apply for ART review of any of the decisions specified in subsection 111(2).
1149. Item 24: Paragraph 111(2)(e)
1. Paragraph 111(2)(e) refers to a decision relating to the Secretary’s power under section 146 to settle proceeding before the AAT.
2. Section 146 is repealed by this Schedule. However, paragraph 109(a) of the ART Bill recognises that the Secretary and another participant to proceedings before the ART may settle a matter. Where this happens, the Tribunal may make a decision or take action that is consistent with the agreement.
3. Paragraph 111(2)(e) is therefore amended so that it refers to the Secretary’s power to make an agreement mentioned in paragraph 109(a) of the ART Bill.
1150. Item 25: At the end of paragraph 111(2)(f)
1. Paragraph 111(2)(f) currently ensures that the SSAT cannot review a decision under Part 8 (relating to the approval of child care services and registered carers). However, the AAT can review certain Part 8 decisions because of the operation of section 144.
2. In light of the abolition of both the SSAT and the AAT, paragraph 111(2)(f) is amended so that the ART can review those Part 8 decisions that are currently subject to AAT review. These decisions are listed in the new subparagraphs inserted by this item.
1151. Item 26: Sections 111A and 111B
1. Section 111A specifies time limits applicable to review by the SSAT of certain decisions. The decisions not covered by this provision are decisions relating to the payment of family tax benefit by instalment and decisions relating to the raising of a debt.
2. Section 111B deals with the date of effect of certain SSAT decisions relating to the payment of family tax benefit by instalment.
3. This item repeals both sections 111A and 111B.
4. However, new sections 61A and 135A of the ART Bill continue the effect of these provisions. The relevant modifications are made in Schedule 13 to this Bill.
5. This item also inserts a new section 111A. The new provision ensures that the Income Support Division of the ART reviews family assistance decisions in accordance with the ART Bill, as modified by Schedule 1 to the FA (Administration) Act.
1153. Item 27: Paragraphs 112(1)(c) and (1A)(c)
1. Section 112 deals with the situation where an adverse decision is made and the person affected by the decision applies to the SSAT for review of the decision. The provision enables the Secretary to continue payment of family assistance as if the adverse decision had not been made, pending the outcome of the SSAT review.
2. This item amends section 112 so that a similar rule applies where an adverse decision is made and an application is made to the ART (rather than the SSAT) for review of the decision.
1154. Item 28: Subparagraphs 112(3)(b)(i) and (ii)
2. This item makes further amendments of section 112 to the same end. This item also changes references to the SSAT to references to the ART.
1. Section 113 currently sets out the review powers of the SSAT. With the abolition of the SSAT, these powers become obsolete. Section 113 is therefore repealed.
2. SSAT review is replaced by ART review. The ART Bill sets out the review powers of the Tribunal (which are not dissimilar to those of the SSAT). However, there is no equivalent power in that Act to the current subsection 113(3). This item therefore preserves the effect of subsection 113(3) in new section 113. Under new section 113, the Secretary may direct, in certain circumstances, that an event be taken to have occurred for the purposes of the family assistance law.
1. Section 114 currently provides that the SSAT can exercise all the relevant powers and discretions of the Secretary in reviewing a decision. With the abolition of the SSAT, this provision is no longer required and is therefore repealed.
2. This item also inserts a new section 114. The new provision continues the effect of current section 141A. Section 141A is repealed by item 32 of this Schedule.
3. New section 114 outlines the situations in which the Secretary must give a child care service notice of an ART decision.
1159. Item 31: Sections 116, 117 and 118
1. These provisions deal with a number of matters relevant to the SSAT (for example, application requirements). With the abolition of the SSAT, these provisions become obsolete and are therefore repealed by this item. Similar issues relating to the ART are dealt with in the ART Bill (as modified where appropriate by Schedule 13 to this Bill).
1160. Item 32: Divisions 3 and 4 of Part 5
1. Division 3 of Part 5 outlines the procedures for review by the SSAT. Division 4 provides for review by the AAT. With the abolition of the SSAT and AAT, these provisions become obsolete and are therefore repealed.
2. SSAT and AAT review is replaced by ART review. The procedures and rules relating to Tribunal review are dealt with in the ART Bill, as modified by Schedule 1 to the FA (Administration) Act. The modifications are outlined in Schedule 13 to this Bill.
1161. Item 33: Subsection 219A(2) (table item 10)
1. Item 10 in the table in subsection 219A(2) refers to section 141A. While section 141A is being repealed in this Schedule, the provision is replicated in new section 114 (see item 30). This item therefore makes a technical amendment to reflect this change in numbering.
1162. Item 34: Paragraph 235(4)(b)
1. Section 235 is a regulation-making power. Subsection 235(4) allows regulations to be made concerning the date of effect of review decisions made by the Secretary, an authorised review officer, the SSAT or the AAT.
2. With the abolition of the SSAT and the AAT, this provision is amended to omit references to these tribunals. The provision will, however, continue to operate in relation to decisions made under Part 5.
1164. Item 1: At the end of the Act
2. Item 1 adds a new Schedule 1 to the end of the A New Tax System (Family Assistance) (Administration) Act 1999 (FA (Administration) Act). The new Schedule sets out modifications of the ART Bill applicable, in accordance with the new section 111A(b) of the FA (Administration) Act (inserted by item 26 of Schedule 12), for the purpose of review of certain decisions made under the Act.
3. The clauses of the new Schedule are explained below.
1166. Clause 1: Section 6 (definition of decision-maker)
1. This clause disapplies the definition of ‘decision-maker’ for the purposes of ART review of decisions under the family assistance law. The decision-maker will be the Secretary to the Department of Family and Community Services (Secretary). This effect is consistent with the current review regime for family assistance decisions.
1. This clause inserts a definition of ‘Secretary’.
1. This clause inserts a definition of ‘family assistance law’. This term has the same meaning as in the FA (Administration) Act.
1169. Clause 4: At the end of section 50
1. This clause inserts a new subsection 50(5). The new provision allows the Secretary to delegate his or her powers and functions under the ART Bill in the same way as section 221 of the FA (Administration) Act provides for the delegation of the Secretary’s powers under the family assistance law.
1. Clause 55 of the ART Bill defines ‘decision-maker’. This definition is not required for the ART review of decisions under the family assistance law. The decision-maker will be the Secretary.
1171. Clause 6: Before paragraph 56(5)(a)
1. This clause modifies subclause 56(5) of the ART Bill for the purposes of family assistance law so that if the Secretary initiates internal review of a family assistance decision and affirms the original decision, then the Secretary is not required to notify the customer concerned about the review decision. This reflects the current position regarding notification of review decisions.
1172. Clause
7:
Subsection 57(1)
1173. Clause 8:
Subsection 57(2)
1174. Clause 9:
Subsection 57(3)
1175. Clause 10:
Paragraphs 57(4)(a) and
(b)
1176. Clause 11:
Subsections 57(4) and (5)
1. Clause 57 of the ART Bill outlines the circumstances in which a statement of reasons relating to an original decision must be provided by a decision-maker to a person whose interests are affected by the original decision.
2. Consistent with the notion that the Secretary is the ‘decision-maker’ for the purposes of ART review of a family assistance decision, clauses 7 to 11 of this Schedule change references to ‘decision-maker’ in clause 57 (including in the heading to subclause 57(2)) to references to ‘Secretary’.
1177. Clause
12: Paragraphs 58(1)(a) and
(b)
1178. Clause 13:
Subsection 58(1)
1179. Clause 14:
Subsection 58(2)
1180. Clause 15:
Subsection 58(3)
1. Clause 58 of the ART Bill deals with the situation where a person requests a statement of reasons and the decision-maker does not give the person the statement within 28 days of the request.
2. Consistent with the notion that the Secretary is the ‘decision-maker’ for the purposes of ART review of a family assistance decision, clauses 12 to 15 of this Schedule change references to ‘decision-maker’ in clause 58, to references to ‘Secretary’.
1181. Clause
16:
Paragraph 59(1)(a)
1182. Clause 17:
Subsection 59(2)
1183. Clause 18:
Subsection 59(3)
1. Clause 59 of the ART Bill provides for the review of the adequacy of a statement of reasons provided by a decision-maker. Consistent with the notion that the Secretary is the ‘decision-maker’ for the purposes of ART review of a family assistance decision, clauses 16 to 18 of this Schedule change references to ‘decision-maker’ in clause 59, to references to ‘Secretary’.
1184. Clause 19: Subsection 60(2)
1. Clause 60 of the ART Bill provides for the exclusion of confidential material in prescribed circumstances from a statement of reasons.
2. Clause 19 of this Schedule changes the reference to ‘decision-maker’ to a reference to ‘Secretary’.
1185. Clause 20: Subsection 61(1)
1. Under subclause 61(1) of the ART Bill, a person whose interests are affected by an original decision may apply to the Tribunal for review of that decision.
2. Clause 20 of this Schedule takes account of new section 61A.
1186. Clause 21: After subsection 61(1)
1. This clause inserts a new subsection 61(1A). The new provision continues the effect of subsection 111(1B) of the FA (Administration) Act into the new ART regime.
2. New subsection 61(1A) addresses the situation where a decision is made under subsection 91A(3) of the Child Support (Assessment) Act 1989 about a particular agreement. Where this happens, both parties to the agreement are taken to be persons whose interests are affected by the decision. Either party can therefore seek ART review of the decision.
1187. Clause 22: After section 61
1. This clause inserts a new section 61A. The new provision continues the effect of section 111A of the FA (Administration) Act into the new ART regime.
2. New section 61A provides that a person must apply to the ART for review of a decision (other than an exempted decision) no later than 13 weeks after being notified of the decision. An exempted decision is a decision relating to the payment of family tax benefit by instalment or a decision to raise a debt.
3. However, the Tribunal will have a discretion to extend the 13-week limit in special circumstances.
1189. Clause 23: Paragraph 63(a)
1. Clause 63 of the ART Bill allows a decision-maker to apply to the ART for leave to make an application for review of the first-tier decision.
2. Clause 23 of this Schedule changes the reference to ‘decision-maker in relation to the decision’ to a reference to ‘Secretary’.
1190. Clause 24: Subparagraph 65(3)(a)(ii)
1. Clause 65 of the ART Bill provides for the determination of an application to the Tribunal for leave to make an application for review of a first-tier decision.
2. Clause 24 of this Schedule changes the reference to ‘decision-maker in relation to the original decision’ to a reference to ‘Secretary’.
1191. Clause 25: Subsection 65(7)
1. Similarly, this clause changes the reference to ‘decision-maker’ to a reference to ‘Secretary’.
1192. Clause 26: Subsection 67(2)
1. Clause 67 of the ART Bill provides for second-tier review of an original decision. Subclause 67(2) defines ‘decision-maker’ in relation to the first-tier decision.
2. As the Secretary is the ‘decision-maker’ for the purposes of ART review of family assistance decisions (both in relation to first and second-tier review), subclause 67(2) becomes obsolete and is therefore disapplied.
1193. Clause 27: Division 1 of Part 6 (heading)
1. The heading of Division 1 is modified (for the purposes of family assistance law) to reflect its content.
1. Clause 76 of the ART Bill ensures that the decision-maker is given notice of an application for first-tier review, for leave to make an application for first- or second-tier review.
2. Clause 28 of this Schedule modifies clause 76 for the purposes of family assistance law so that it is the Secretary who must be given notice of such matters. The heading to clause 76 is also modified to reflect this.
1195. Clause
29:
Subsection 77(1)
1196. Clause 30:
Subsection 77(1)
1197. Clause 31:
Paragraph 77(1)(b)
1198. Clause 32:
Paragraph 77(2)(b)
1199. Clause 33:
Subsection 77(3)
1. Clause 77 of the ART Bill requires a decision-maker who is given notice of a first-tier review to provide the Tribunal with a statement of reasons for the decision and any other relevant documents.
2. Consistent with the notion that the Secretary is the ‘decision-maker’ for the purposes of ART review of a family assistance decision, clauses 29 to 33 of this Schedule change references to ‘decision-maker’ in clause 77 (including the heading) to references to ‘Secretary’.
1200. Clause
34:
Paragraph 78(1)(a)
1201. Clause 35:
Subsection 78(1)
1202. Clause 36:
Paragraph 78(1)(d)
1203. Clause 37:
Subsection 78(2)
1. Clause 78 of the ART Bill deals with the situation where a statement of reasons provided by a decision-maker is not considered adequate by the ART.
2. Consistent with the notion that the Secretary is the ‘decision-maker’ for the purposes of ART review of a family assistance decision, clauses 34 to 37 of this Schedule change references to ‘decision-maker’ in clause 78, to references to ‘Secretary’.
1204. Clause
38:
Subsection 79(1)
1205. Clause 39:
Subsection 79(2)
1. Under clause 79 of the ART Bill, if the Tribunal considers that the decision-maker has or may have other documents relevant to a review, the Tribunal can require a decision-maker to give those documents to the Tribunal.
2. Consistent with the notion that the Secretary is the ‘decision-maker’ for the purposes of ART review of a family assistance decision, clauses 38 and 39 of this Schedule change references to ‘decision-maker’ in clause 79 (including the heading) to references to ‘Secretary’.
1206. Clause 40: After section 79
1. This clause inserts a new section 79A. New section 79A continues the effect of section 129 of the FA (Administration) Act. Section 129 is repealed by Schedule 12 to this Bill.
2. Under new section 79A, the Tribunal may request the Secretary to exercise his or her power under section 154 of the FA (Administration) Act if the Tribunal considers that a person has information or a document relevant to a review being conducted by the Tribunal. Under section 154, the Secretary may require a person to give information or produce a document for specified purposes.
1208. Clause
41:
Subsection 82(2)
1209. Clause 42:
Subsection 82(3)
1210. Clause 43:
Subsection 82(4)
1. Under clause 82 of the ART Bill, the Tribunal may decide that a decision-maker is not required to comply with a requirement to provide the Tribunal with a statement or reasons or other documents (for example, for reasons of confidentiality).
2. Consistent with the notion that the Secretary is the ‘decision-maker’ for the purposes of ART review of a family assistance decision, clauses 41 to 43 of this Schedule change references to ‘decision-maker’ in clause 82, to references to ‘Secretary’.
1211. Clause 44: Paragraph 84(1)(b)
1. Clause 84 of the ART Bill specifies the participants in a review. The ‘decision-maker’ is a participant.
2. Clause 44 of this Schedule modifies paragraph 84(1)(b) for the purposes of family assistance law, to ensure that the Secretary (and not the decision-maker) is a participant in a review.
1212. Clause 44A: Subsections 84(4) to (6)
3. This clause disapplies subclauses 84(4) to (6) of the ART Bill. Those subclauses are unnecessary because the Secretary (and not the decision-maker) is a participant in a review.
1. This clause disapplies clause 85. This provision is obsolete because the Secretary (and not the decision-maker) is a participant in a review.
1214. Clause 46: Subsection 87(1)
1. Clause 87 of the ART Bill allows a participant (except the applicant, the decision-maker or the Attorney-General) to apply to the Tribunal to cease to be a participant.
2. Clause 46 of this Schedule modifies subclause 87(1) for the purposes of family assistance law, to take account of the fact that the Secretary, rather than the decision-maker, is a participant in a review.
2. Clause 94 of the ART Bill requires a decision-maker who is a participant in a review to assist the Tribunal to make its decision. This provision is modified for the purposes of family assistance law so that the Secretary (and not the decision-maker) is under this obligation. The heading to clause 94 is modified in a similar manner.
1216. Clause 48: Paragraph 96(3)(a)
1. Subclause 96(3) of the ART Bill allows the Tribunal to review a matter on ‘the papers’ where the decision-maker has provided the Tribunal with all the relevant information (that is, a statement of reasons and any other required documents) and the applicant has had the opportunity of providing the Tribunal with his or her documents.
2. As the Secretary is responsible for providing the Tribunal with relevant information, this clause changes the reference to ‘decision-maker’ to a reference to ‘Secretary’.
1217. Clause 49: At the end of section 105
1. This clause inserts a new subsection 105(2). The new provision makes it clear that subclause 105(1) does not prevent a delegate of the Secretary from appearing before the Tribunal.
1218. Clause 50: Subsection 108(2)
1. Under clause 108(2) of the ART Bill, the practice and procedure determined by the Tribunal for the conduct of a review may require a participant (including the Secretary) to do specified things.
2. Clause 50 of this Schedule ensures that the Secretary cannot be subject to a requirement under subclause 108(2). This change ensures that the Secretary’s role as a participant in ART review remains similar to the role of the Secretary in SSAT review.
1219. Clause 51: After subsection 110(1)
1. Under subclause 110(1) of the ART Bill, the practice and procedure directions may require a conference of participants be held or that participants take part in some other process.
2. New subsection 110(1A) excludes the Secretary from this requirement. This change ensures that the Secretary’s role as a participant in ART review remains similar to the role of the Secretary in SSAT review.
1220. Clause 52: Subsection 117(2)
1. Under subclause 117(2) of the ART Bill, the practice and procedure determined by an inquiry officer for the conduct of a review may require a participant (including the Secretary) to do specified things.
2. Clause 52 of this Schedule ensures that the Secretary cannot be subject to a requirement under subclause 117(2). This change ensures that the Secretary’s role as a participant in ART review remains similar to the role of the Secretary in SSAT review.
1221. Clause 53: After subsection 121(1)
1. Subclause 121(1) of the ART Bill provides the general rule that an application to the Tribunal for first-tier review, for leave to apply for second-tier review or for second-tier review does not affect the operation or implementation of the decision that is the subject of the application.
2. New subsection 121(1A) makes it clear that subclause 121(1) does not affect the operation of the provision in the FA (Administration) Act that allows the Secretary to continue payment pending review.
3. Clause 53 of this Schedule also changes the reference to ‘decision-maker’ in the heading to a reference to ‘Secretary’.
1. This clause disapplies clause 123 of the ART Bill in recognition of the Secretary’s power to review a decision even though an application has been made to the ART for review of the decision (see section 105 of the FA (Administration) Act as amended by Schedule 12 to this Bill).
1223. Clause
55:
Paragraph 124(1)(a)
1224. Clause 56:
Paragraph 124(1)(b)
1225. Clause 57:
Paragraph 124(2)(a)
1226. Clause 58:
Subsection 124(3)
1227. Clause 59:
Subsections 124(4), (5)
and (6)
1228. Clause 60:
Paragraphs 124(7)(a) and (b)
1. Clause 124 of the ART Bill allows the Tribunal to request a decision-maker to reconsider a decision where new information relevant to the decision has come to light.
2. As the Secretary is responsible for decision-making under the family assistance law, clauses 55 to 60 of this Schedule change references to ‘decision-maker’ in clause 124 (including relevant headings) to references to ‘Secretary’.
1229. Clause
61:
Subsection 125(1)
1230. Clause 62:
Subsection 125(2)
1231. Clause 63:
Subsection 125(3)
1232. Clause 64:
Subsections 125(4), (5) and (6)
1. Clause 125 of the ART Bill allows the Tribunal to ask a decision-maker to reconsider a decision.
2. As the Secretary is responsible for decision-making under the family assistance law, clauses 61 to 64 of this Schedule change references to ‘decision-maker’ in clause 125 (including relevant headings) to references to ‘Secretary’.
1233. Clause 65: Subsections 126(1) and (2)
1. This clause modifies for the purposes of family assistance law the section references in subclauses 126(1) and (2) so that they reflect several changes and modifications made by Schedules 12 and 13 of this Bill: that is, the continuing applicability of section 105 of the FA (Administration) Act and the disapplication of clause 123 of the ART Bill for family assistance purposes.
1234. Clause 66: Subsection 126(3)
1. This clause replaces subclause 126(3) for similar reasons.
1235. Clause 67: Division 1 of Part 8 (note after the Division heading)
1. This clause changes the reference to ‘decision-maker’ to a reference to ‘Secretary’.
1236. Clause 68: Subsection 128(1)
2. Clause 128 of the ART Bill deals with the situation where a participant (other than the decision-maker or the Attorney-General) fails to attend the review. Clause 68 of this Schedule changes the reference to ‘decision-maker’ to a reference to ‘Secretary’.
1. Clause 129 of the ART Bill deals with the situation where a participant (other than the decision-maker or the Attorney-General) fails to comply with the practice and procedure directions or other directions or obligations imposed by the Tribunal.
2. Clause 69 of this Schedule changes the reference to ‘decision-maker’ to a reference to ‘Secretary’.
1238. Clause 70: Subsection 133(1)
1. This clause ensures that the Tribunal may exercise all the powers and discretions conferred by the family assistance law on the Secretary in reviewing an original decision.
1239. Clause 71: Subparagraph 133(2)(c)(ii)
1. Under subclause 133(2) of the ART Bill, if the Tribunal sets aside an original decision, it must also either make a new decision or remit the matter to the decision-maker for reconsideration in accordance with any directions or recommendations of the Tribunal.
2. Clause 71 of this Schedule changes the reference to ‘decision-maker’ to a reference to ‘Secretary’.
1240. Clause 72: Subsection 133(4) (note)
1. This clause changes the reference to ‘decision-maker’ to a reference to ‘Secretary’.
1241. Clause 73: After section 133
1. This clause inserts a new section 133A. The new provision continues the effect of existing subsection 113(2) of the FA (Administration) Act into the new ART regime.
2. New section 133A operates where the Tribunal sets aside a decision and substitutes a new decision that a person is entitled to family assistance, is conditionally eligible for child care benefit by fee reduction or that the weekly limit of hours, CCB % or schooling % is to be increased. The provision gives the Tribunal the option of assessing the amount, percentage or limit or asking the Secretary to do the assessment.
1. This clause inserts a new section 133B. The new provision continues the effect of existing subsection 113(3) of the FA (Administration) Act into the new ART regime.
2. New section 133B applies where the Tribunal sets aside an original decision and is satisfied that an event that did not occur would have occurred but for the making of the original decision. Where this happens, the Tribunal may deem the event to have occurred for the purposes of the family assistance law.
1244. Clause
74:
Subsection 134(1)
1245. Clause 75:
Subsection 134(2)
1. Clause 134 of the ART Bill outlines the circumstances in which a decision of the Tribunal is taken to be a decision of a decision-maker.
2. Clauses 74 and 75 of this Schedule change references to ‘decision-maker’ to references to ‘Secretary’ in clause 134.
1246. Clause 76: Subsection 135(3)
1. This clause takes account of new subsection 135(4) and new section 135A.
1247. Clause 77: At the end of section 135
1. This clause inserts a new subsection 135(4). The new provision acknowledges that regulations made under the FA (Administration) Act may impact on the date of effect of a decision made by the Tribunal. The regulations may provide for the date of effect of a decision that has the effect of creating or increasing an entitlement to be paid family tax benefit by instalment.
1248. Clause 78: After section 135
1. This clause inserts a new section 135A. This new provision continues the effect of existing section 111B of the FA (Administration) Act.
2. New section 135A provides for the date of effect of an ART decision that has the effect of creating or increasing entitlement to be paid family tax benefit by instalment. The effect of the rule is to allow full arrears of family tax benefit to be paid if an application for Tribunal review is made within 13 weeks after notification of the internal review decision or by the end of the income year after the income year in which the circumstance to which the review relates occurred. The Tribunal would also have a discretion to extend the 13-week limit in special circumstances.
1250. Clause 79: Subsection 136(2)
1. Subclause 136(2) of the ART Bill ensures that each participant and the decision-maker is given a copy of the Tribunal’s decision and, if the Tribunal has given written reasons for the decision, a copy of those reasons.
2. Clause 79 of this Schedule changes references to ‘decision-maker’ to references to ‘Secretary’.
1251. Clause 80: Subsection 139(1)
1. Clause 139 of the ART Bill provides for the return of documents to the decision-maker. As the Secretary is responsible for providing the relevant information and documents to the Tribunal in relation to the review of a family assistance decision, the reference to ‘decision-maker’ in this provision is changed to read ‘Secretary’.
1252. Clause 81: Section 140 (note)
1. This clause changes the reference to a ‘decision-maker’ to a reference to ‘Secretary’.
1253. Clause 82: At the end of section 142
1. Clause 142 of the ART Bill enables regulations to be made providing that application to the Tribunal must be made by a specified time.
2. Clause 82 of this Schedule inserts a new subsection 142(4). The new provision ensures that regulations cannot be made imposing time limits on applications to the Tribunal for review of family assistance decisions (other than exempted decisions). This is because the family assistance law, as amended by this Bill, has discrete time limit and date of effect provisions that apply in relation to specified kinds of decision.
1254. Clause 83: Paragraph 153(2)(a)
1. Subclause 153(2) of the ART Bill provides for the payment of fees and allowances to participants in a review other than the decision-maker. The reference to ‘decision-maker’ is changed to a reference to ‘Secretary’.
2. This clause takes account of new subsection 155(2). The heading is also modified so that it more accurately reflects the content of clause 155.
1256. Clause 85: At the end of section 155
1. This clause inserts new subsections 155(2), (3) and (4). These new provisions continue the effect of existing section 140 of the FA (Administration) Act.
2. Under these new provisions, the Tribunal may determine that the Commonwealth is to pay certain costs associated with a review.
1257. Clause 86: Subsection 159(1)
1. Clause 159 of the ART Bill deals with the situations where the Tribunal or a person is permitted or required to give a document or thing to a decision-maker.
2. Clause 86 of this Schedule changes references to ‘decision-maker’ (including the heading) to references to ‘Secretary’.
1258. Clause 87: Subsection 159(2)
1. This clause disapplies subclause 159(2). This provision is obsolete, as the Secretary is effectively the decision-maker in relation to family assistance decisions.
1259. Clause 88: Subsection 167(5)
1. Under subclause 167(5) of the ART Bill, if the Tribunal makes a decision about the adequacy of a statement of reasons, the decision-maker or the person involved may appeal to the Federal Court for review of the decision of the Tribunal.
2. Clause 88 of this Schedule changes the reference to ‘decision-maker’ to a reference to ‘Secretary’.
1. This Schedule effects the necessary amendments of the migration legislation as a result of the ART Bill in three Parts as follows:
• Part 1 (amendment of Migration Act 1958);
• Part 2 (amendment of Australian Citizenship Act 1948); and
• Part 3 (amendment of Immigration (Guardianship of Children) Act 1946).
2. The transition to the ART for the bulk of the migration merits review workload is accommodated via a self-contained code in an amended Part 5 of the Migration Act (see Part 1).
3. This acknowledges that, in the migration context, there are substantive exceptions to many of the general review procedures contained in Parts 4 to 10 of the ART Bill, exceptions which distinguish the current MRT and RRT jurisdictions from the AAT jurisdiction. Matters such as standing to apply for review, time limits within which to apply, no second-tier review, strict limits on appeals to the Federal Court, a Ministerial intervention power to substitute a decision for that of the review body, review ‘exclusion’ provisions for particular decisions, and prescribed times within which certain review decisions must be made are examples of some of those differences.
4. As the legislative provisions already existed in the Migration Act to account for these differences, it was decided to effect the legislative transition to the ART via a self-contained review code to be set out in the Migration Act.
1261. The self-contained code
1. Of the current reviewable decisions, all except the section 306 Migration Agents Registration Authority (MARA) decisions (which are to be reviewed by the ART in the Commercial and General Division), the section 381 and section 443 referral decisions (which are to be discontinued), and the reviews of decisions under the Australian Citizenship Act, and the Immigration (Guardianship of Children) Act (which are to be reviewed by the ART in the Commercial and General Division), are to be contained in the new Part 5 of the Migration Act, and are to be subject to the provisions of that Part, and not Parts 4 to 10 of the ART Bill.
2. This is achieved in this Schedule as follows:
• Part 1 (Migration Act decisions):
− MARA decisions (section 306):
Item 48 provides that such decisions, currently AAT-reviewable, are to be reviewable in the Commercial and General Division of the ‘Tribunal’ (which is defined in item 35 to be the ART).
These decisions are in relation to migration agents registration matters, not visa related matters, and are therefore akin to licensing decisions.
As the decisions are left out of the new Part 5 of the Migration Act, review of the decisions becomes subject to the ART procedures in the ART Bill (that is, Parts 4 to 10 of that Bill will govern the conduct of these reviews).
• Review of decisions referred to the AAT by the MRT (section 381) or the RRT (section 443):
These are discontinued in the ART context (as there is now only one merits review body) via:
− item 201, which provides for the repeal of Division 9 of Part 5 (relating to the referral of decisions from the MRT), and
− item 202, which provides for the repeal of Part 7, in which Division 8 was located (relating to the referral of decisions from the RRT).
• All of the other MRT/RRT/AAT Migration Act decisions:
These are set out at the beginning of the new Part 5, new section 337A (item 71).
These decisions are reviewable by the ART, in its Immigration and Refugee Division (IRD) (new section 343A, inserted by item 90).
Such reviews by this ART Division are governed by the terms and conditions applying to review applications, and the procedures for the conduct of such reviews, as set out in the new Part 5 of the Migration Act (that is, the self contained code), which displaces Parts 4 to 10 of the ART Bill (see new section 343B, inserted by item 90).
The five classes of reviewable decisions are listed in new section 337A (see item 71) as:
− Reviewable general visa decisions:
These are the current MRT reviewable decisions (current section 338) see items 57, 64, 72 and 77, together with the business skills visa cancellation decisions (current section 136).
Business skills visa cancellation decisions (section 136) are moved into the new Part 5: see items 18, 19, 20, 26, 80 and 82.
− Reviewable protection visa decisions:
These are the current RRT reviewable decisions (current section 411), which are moved into new Part 5: see items 4, 66 and 86 (new section 338A).
− Reviewable deportation decisions:
These are the current AAT-reviewable criminal deportation decisions (current section 500(1)(a)), which are moved into the new Part 5: see items 217, 62 and 86 (new section 338D).
− Reviewable general character decisions:
These are the current AAT-reviewable character decisions (current section 500(1)(b), except for protection visa character decisions), which are moved into the new Part 5: see items 217, 218, 63 and 86 (new section 338B).
− Reviewable protection visa character decisions
These are the current AAT-reviewable protection visa character decisions (current section 500(1)(c), together with the section 500(1)(b) character decisions relating to protection visas), which are moved into the new Part 5: see items 217, 218, 65 and 86 (new section 338C).
• Parts 2 and 3 (non-Migration Act reviewable decisions):
− Citizenship decisions made under section 52A of the Australian Citizenship Act:
Part 2 of Schedule 14 provides that such decisions, currently AAT-reviewable, are to be reviewable in the Commercial and General Division of the ART (item 244).
As the decisions are left out of the new Part 5 of the Migration Act, the review of the decisions becomes subject to the ART procedures in the ART Bill (that is, Parts 4 to 10 of that Bill will govern the conduct of these reviews).
− Guardianship of children decisions made under section 11 of the Immigration (Guardianship of Children) Act:
Part 3 of Schedule 14 provides that such decisions, currently AAT-reviewable, are to be reviewable in the Commercial and General Division of the ART (item 251).
As the decisions are left out of the new Part 5 of the Migration Act, the review of the decisions becomes subject to the ART procedures in the ART Bill (that is, Parts 4 to 10 of that Bill will govern the conduct of these reviews).
3. The central theme is that the bulk of the migration merits review workload is to operate in a self-contained code in the Migration Act, which is to displace the ART Bill’s provisions dealing with such matters (that is, Part 5 of the Migration Act is expressed as displacing Parts 4 to 10 of the ART Bill—see new section 343B, inserted by item 90).
4. This effectively retains the status quo for the bulk of the migration portfolio’s reviewable decisions (97% of the decisions are MRT-reviewable or RRT-reviewable decisions). The former migration AAT-reviewable decisions (that is, business skills visa cancellation decisions and section 500 matters, which account for 2% of the portfolio’s merits review) will move from the AAT into the amended Part 5 of the Migration Act and not to the ART Bill itself.
5. This will involve minimal procedural changes for the former AAT-reviewable decisions, as the special features currently applying to certain section 500 character reviews are retained in the new Part 5 of the Migration Act.
1262. Procedures adopted from the ART
1. Important aspects of ART review from the ART Bill have been incorporated into the amended Part 5 as follows:
• review on the papers (new sections 360, 360A, 360B and 360C—see item 148);
• discretionary hearings (new sections 361 and 361A—see item 148);
• ending reviews/reinstatement (new sections 362B, 362C, 362D, 362E and 326F—see items 159 and 160);
• slip rule (new section 368B—see item 179);
• applicants to bear their own costs (new section 373A—see item 181);
• directions (new sections 353 and 353A—see items 99 to 105);
• practice and procedure determinations (new section 353B—see item 106);
• removal of members (new section 343B, 353 and 355B—see items 90, 99 and 123);
• giving documents to the Tribunal (new section 379F—see item 201);
• ART offence provisions (new sections 370 to 372D—see item 180); and
• ART protection and liabilities of members and others (new section 373—see item 181).
1263. Other related matters
1. The amendments of the Migration Act deal with certainty of dispatch (from the primary decision-maker and from the Tribunal) and certainty of receipt of documents:
• Sections 379A and 379B (certainty of dispatch):
Section 379A has been amended to deal with certainty of dispatch (see item 200). The provision now deals with the methods by which the Tribunal gives various documents to the review applicant and to other persons (new section 379A—see item 201), and to the Secretary to the Department of Immigration and Multicultural Affairs (Secretary) (new section 379B—see item 201).
While only certain documents (notices, invitations, written statements etc) are required to be given by one of the methods specified in section 379A or section 379B (see items 136, 138 and 148), other documents might be given in these ways (new section 379AA—see item 201) and, if they are, then the provisions of new sections 379C and 379D may be invoked to determine the time when the document is taken to have been received.
As is the case now, regulations will prescribe the methods of communicating with a person who is in immigration detention.
The sections permit the Tribunal to use registered mail or a mail register where communications are posted to a review applicant or other person, but also permit the Department to provide ‘postal services’ in relation to communications between the Tribunal and the Department (recognising the arrangements which currently exist as regards the movement of files and other documents).
In addition, the sections permit the transmission of documents electronically via facsimile, or e-mail, or other electronic means.
• Sections 379C and 379D (certainty of receipt):
These new sections prescribe when the review applicant, or another person, or the Secretary, is taken to have received a document which has been given by the Tribunal via one of the methods noted in new section 379A or 379B.
These sections incorporate the deemed receipt elements of current section 379A, together with regulation 5.03 of the Migration Regulations 1994. In addition, they provide the receipt equivalent where a document is given by an electronic method.
• Section 379G (authorised recipient):
New section 379G (item 201) enables a review applicant to authorise another person to receive documents in connection with the review.
• Sections 494A and 494B (certainty of dispatch):
Item 216 adds provisions to Part 9 of the Act to mirror the certainty of dispatch/receipt provisions in the new Part 5 insofar as the primary decision maker is concerned: that is, new sections 494A and 494B provide certainty of dispatch/receipt provisions for the Minister akin to those provided for the Tribunal in new sections 379AA and 379A (see item 201).
Similar to the case for the Tribunal, only some documents are required to be given by one of the methods specified in new section 494B (new section 339A—see item 88). However, other documents might be given in these ways (new section 494A—see item 216) and, if they are, then the provisions of new section 494C may be invoked to determine the time when the document is taken to have been received.
• Section 494C (certainty of receipt):
This new section prescribes when a person is taken to have received a document which has been given by the Minister via one of the methods noted in new section 494B. This is similar to the deemed receipt section for documents given by the Tribunal (new section 379C), and again picks up the deemed receipt provisions of regulation 5.03, which will be repealed on the commencement of the ART legislation.
• Section 494D (authorised recipient):
New section 494D (item 216) enables any person having dealings with the Minister to authorise another person to receive documents on their behalf.
1264. List of provisions
1. The amended Part 5 of the Migration Act (review of decisions) consolidates into the one Part of the Migration Act all of the current merits review provisions, together with substantial elements from the ART Bill, with appropriate and necessary modifications relevant for the migration context. The provisions in the amended Part 5 are listed below, with reference where applicable to existing Migration Act provisions and provisions of the ART Bill:
• Division 1 (interpretation):
− section 337 (interpretation).
• Division 2 (decisions to which this Part applies):
− section 337A (decisions to which this Part applies);
− section 338 (reviewable general visa decisions): existing sections 338 and 136;
− section 338A (reviewable protection visa decisions): existing section 411;
− section 338B (reviewable general character decisions): existing subsection 500(1)(b);
− section 338C (reviewable protection visa character decisions): existing paragraphs 500(1)(b) and (c);
− section 338D (reviewable deportation decisions): existing paragraph 500(1)(a); and
− section 339 (conclusive certificates): existing section 339 and subsection 411(3).
• Division 2A (notification of decisions and review rights):
− section 339A (reviewable decisions must be notified);
− section 340 (notification must set out review rights): existing paragraph 66(2)(d), subsection 127(2), subsection 134(7) and paragraph 501G(1)(f);
− section 341 (documents to be provided with notification of reviewable general character decisions and reviewable protection visa character decisions): existing subsection 501G(2); and
− section 342 (failure to comply does not affect validity of decision): existing subsections 66(4), 127(3) and 501G(4).
• Division 3 (review by ART of decisions to which this Part applies):
− section 343 (application for review);
− section 343A (review to take place in the IRD);
− section 343B (application of the ART Bill);
− section 344 (who can apply for review of decisions): existing subsection 347(2), subsection 412(2) and (3) and subsections 500(2) and (3);
− section 346 (form of application etc.): existing subsections 347(1) and 412(1), and subsection 500(6C) in part;
− section 346A (application fee): existing subsections 347(1) and 412(1), and clause 143 of the ART Bill;
− section 347 (time limit for making application): existing subsections 347(1), 412(1) and 500(6B);
− section 347A (applicant may provide written arguments etc.): existing subsections 358(1) and 423(1);
− section 347B (Secretary to be notified of application for review): existing subsections 352(1), 418(1) and 500(6E);
− section 347C (Secretary to provide statement and relevant documents): existing subsections 352(2), 418(2), 352(4), 418(3) and 500(6F);
− section 347D (Secretary may provide written arguments etc.): existing subsections 358(2) and 423(2);
− section 348 (Tribunal must review decisions): existing sections 348 and 414;
− section 348A (when certain reviews can begin): existing subsection 500(6G);
− section 349 (powers of Tribunal): existing sections 349 and 415;
− section 350 (review of assessments made under section 93): existing section 350;
− section 351 (minister may substitute more favourable decision): existing sections 351 and 417; and
− section 352 (applicant may withdraw application and end review): clause 127 of the ART Bill.
• Division 4 (exercise of Tribunal’s powers):
− section 353 (Tribunal’s way of operating): existing sections 353 and 420;
− section 353A (Minister, President and IRD executive member may give directions): existing sections 353A and 420A;
− section 353B (Tribunal may determine its own practice and procedure): clause 108 of the ART Bill;
− section 354 (constitution of Tribunal for exercise of powers): existing sections 354 and 421;
− section 355 (reconstitution of Tribunal—unavailability of member): existing sections 355 and 422;
− section 355A (reconstitution of Tribunal for other reasons): existing sections 355A and 422A;
− section 355B (compliance with directions about constitution of Tribunal): clause 75 of the ART Bill;
− section 356 (exercise of Tribunal’s powers): existing section 356; and
− section 357 (presiding member): existing section 357.
• Division 5 (conduct of review):
− section 359 (Tribunal may get any relevant information): existing sections 359 and 424;
− section 359A (applicant must be given certain information): existing sections 359A and 424A;
− section 359B (invitation to give information or comments): existing sections 359B and 424B;
− section 359C (Tribunal may require documents about certain character decisions): existing subsection 500(6K);
− section 360 (Tribunal must consider review on the papers): subclause 96(3) of the ART Bill;
− section 360A (review on the papers—deciding in the applicant’s favour without further submissions from the applicant): existing subsection 360(2) and 425(2);
− section 360B (notice of review on the papers): subclause 96(4) of the ART Bill;
− section 360C (review on the papers): subclause 96(4) of the ART Bill;
− section 361 (appearing before the Tribunal): existing sections 360 and 425 and subclauses 96(1) and (2) of the ART Bill;
− section 361A (notice of permission to appear): existing sections 360A and 425A;
− section 361B (applicant may request Tribunal to call witnesses etc.): existing sections 361 and 426;
− section 362 (only new information to be considered in reviews of reviewable protection visa decisions): existing section 416;
− section 362A (access to documents and information—reviewable general visa decisions): existing section 362A;
− section 362B (failure of applicant to appear before Tribunal): existing sections 362B and 426A, and clause 128 of the ART Bill;
− section 362C (failure to respond to invitation to give information or comments): existing sections 359C and 424C, and clause 129 of the ART Bill;
− section 362D (failure by applicant to comply with directions): clause 129 of the ART Bill;
− section 362E (notice to be given if Tribunal ends review without making a decision on the review): no equivalent in the ART Bill;
− section 362F (reinstatement of review): clause 132 of the ART Bill;
− section 363 (evidence on oath or affirmation etc.): existing subsections 363(1) and (5) and 427(1) and (5);
− section 364 (presiding member may authorise another person to take evidence): existing sections 364 and 428;
− section 364A (tribunal may summon a person): existing subsections 363(3) and (4) and 427(3) and (4);
− section 364B (review of protection visa decisions to be in private): existing section 429;
− section 365 (review of other decisions to be in public): existing section 365;
− section 366 (oral evidence by telephone etc.): existing sections 366 and 429A;
− section 366A (representation and other assistance—applicants): existing section 366A and subsection 427(6);
− section 366B (representation and other assistance—persons other than the applicant): existing section 366B and subsection 427(6);
− section 366C (interpreters): existing section 366C and subsection 427(7); and
− section 366D (examination and cross-examination): existing section 366D and subsection 427(6).
• Division 6 (decisions of Tribunal):
− section 366E (certain decisions must be given within prescribed periods): existing section 367;
− section 367 (Tribunal may give decision orally or in writing);
− section 368 (copy of written decision must be given to the applicant);
− section 368A (statement setting out decision, reasons etc.): existing sections 368 and 430;
− section 368B (Tribunal may correct statement of decision): clause 138 of the ART Bill;
− section 368C (Tribunal taken to have affirmed certain character decisions): existing subsection 500(6L); and
− section 369 (publishing of decisions): existing sections 369 and 431.
• Division 7 (offences):
− section 370 (failure to comply with summons): existing sections 370 and 432, and clause 145 of the ART Bill;
− section 371 (refusal to be sworn or to answer questions): existing sections 371 and 433, and clause 146 of the ART Bill;
− section 372 (false or misleading evidence): existing subsection 371(3) and 433(3), and clause 147 of the ART Bill;
− section 372A (contempt of Tribunal): existing sections 372 and 434, and clause 149 of the ART Bill;
− section 372B (disclosure of confidential information): existing sections 377 and 439 (see also clause 151 of the ART Bill);
− section 372C (contravention of publication direction): existing subsections 378(3) and 440(3), and clause 148 of the ART Bill; and
− section 372D (application of Criminal Code): clause 150 of the ART Bill.
• Division 8 (miscellaneous):
− section 373 (legal protection and liabilities of members and other persons): existing sections 373 and 435, and clause 144 of the ART Bill;
− section 373A (applicants to bear their own costs): clause 155 of the ART Bill;
− section 374 (fees for witnesses): existing sections 374 and 436, and clause 153 of the ART Bill;
− section 375 (restrictions on disclosure of certain information etc.): existing sections 375 and 437 (see also clause 101 of the ART Bill);
− section 375A (certain information only to be disclosed to Tribunal): existing section 375A;
− section 376 (Tribunal’s discretion in relation to disclosure of certain information etc.): existing sections 376 and 438;
− section 378 (Tribunal may restrict publication of certain matters): existing sections 378 and 440;
− section 378A (delegations): existing sections 405 and 470, and clause 50 of the ART Bill; and
− section 379 (Tribunal reviews): existing sections 379 and 441.
• Division 9 (giving and receiving review documents):
− section 379AA (giving documents by Tribunal where no requirement to do so by section 379A or 379B method);
− section 379A (methods by which Tribunal gives documents to a person other than the Secretary): existing sections 379A and 441A;
− section 379B (methods by which Tribunal gives documents to the Secretary);
− section 379C (when a person other than the Secretary is taken to have received a document from the Tribunal): existing sections 379A and 441A;
− section 379D (when the Secretary is taken to have received a document from the Tribunal);
− section 379E (Tribunal may give copies of documents);
− section 379F (giving documents etc. to the Tribunal): clauses 157 and 158 of the ART Bill; and
− section 379G (authorised recipient).
2. The four new sections in Part 9 of the Migration Act (miscellaneous) are listed below, with reference where applicable to existing Migration Act provisions:
− section 494A (giving documents—when Minister may use section 494B methods);
− section 494B (giving documents—methods that will attract section 494C deemed receipt): existing subsections 53(3) and (6);
− section 494C (when a person is taken to have received a document from the Minister); and
− section 494D (authorised recipient): existing subsections 53(3) to (7).
1. This item amends subsection 5(1) by inserting into the Migration Act a definition of the ART. The ART is established by the ART Bill and replaces (as well as the SSAT) the three merits review tribunals that presently review migration decisions, namely the MRT, the RRT and the AAT.
1267. Item 2: Subsection 5(1)
(definition of Migration Review
Tribunal)
1268. Item 3:
Subsection 5(1) (definition of Refugee Review
Tribunal)
1. These items amend subsection 5(1) by repealing the definitions of ‘Migration Review Tribunal’ and ‘Refugee Review Tribunal’ respectively, as both Tribunals have been replaced by the ART (see items 1 and 202).
1269. Item 4: Subsection 5(1) (definition of RRT-reviewable decision)
1. This item amends subsection 5(1) by repealing the definition of ‘RRT-reviewable decision’.
2. Decisions reviewable by the RRT are currently specified in section 411 of the Act. Part 7 of the Act (which contains section 411) is repealed by item 202, and the existing ‘RRT-reviewable decisions’ are renamed ‘reviewable protection visa decisions’ and brought into Part 5 of the Act (see item 66 and new section 338A—inserted by item 86).
1270. Item 5: Paragraphs 5(9)(a) and (b)
1. This item effects technical amendments of paragraphs 5(9)(a) and (b) as a consequence of the amalgamation of Parts 5 and 7 of the Act into Part 5.
1271. Item 6: After subsection 52(3)
1. This item inserts new subsections (3A), (3B) and (3C) into section 52 of the Act as a consequence of the repeal of section 53 by virtue of item 7. Section 52 currently deals with the way a visa applicant or ‘interested person’ is to communicate with the Minister. This item also replaces the heading to section 52 to make it clear that section 52, as amended, will deal more generally with communication with the Minister.
2. New subsection (3A) closely resembles subsection 53(1) (repealed by item 7); it requires a visa applicant to tell the Minister the address at which the applicant intends to live while the application is being dealt with.
3. New subsection (3B) closely resembles subsection 53(2) (repealed by item 7); it requires a visa applicant who proposes to change the address at which he or she intends to live for a period of 14 days or more to tell the Minister the address and the period of proposed residence.
4. New subsection (3C) is identical to subsection 53(8) (repealed by item 7); it provides that where two or more non-citizens apply for visas together (in accordance with the regulations), notifications given to any of them about the application are taken to be given to each of them.
1. This item repeals section 53 of the Act. The content of existing subsections (1), (2) and (8) of section 53 are now contained in new subsections 52(3A), 52(3B) and 52(3C) (see item 6). The remainder of the content of section 53 has been translated into new sections 494A to 494D (see item 216).
1273. Item 8: Paragraph 57(3)(b)
1. This item effects a technical amendment of paragraph 57(3)(b) as a consequence of the amalgamation of Parts 5 and 7 of the Act into Part 5.
1274. Item 9: Paragraph 66(2)(c)
1. This item effects a technical amendment of paragraph 66(2)(c) as a consequence of the repeal of paragraph 66(2)(d) (see item 10).
1275. Item 10: Paragraph 66(2)(d)
1. This item repeals paragraph 66(2)(d). The effect of this amendment is to remove from the obligation to notify a visa applicant of a visa decision the obligation to notify that person of merits review rights.
2. The requirement to notify persons of merits review rights has been moved into Part 5 by item 88 which inserts new section 340. New section 340 applies to all decisions to which Part 5 applies, and effectively replaces the obligation which currently appears in paragraphs 66(2)(d), 127(2)(b) and (c), 134(7)(b) and 501G(1)(f).
1276. Item 11: At the end of subsection 66(2)
1. This item inserts a note at the end of subsection 66(2) to draw attention to new section 340 which requires notification of a merits reviewable decision to include information about review rights (see items 10 and 88).
1277. Item 12: Paragraph 66(3)(b)
1. This item effects a technical amendment of paragraph 66(3)(b) as a consequence of the amalgamation of Parts 5 and 7 of the Act into Part 5.
1278. Item 13: Subsection 69(1)
1. This item effects a technical amendment as a consequence of the repeal of section 53 and the translation of elements of section 53 into the new section 494D (see item 216).
1279. Item 14: Paragraph 91G(2)(a)
1. This item effects a technical amendment of paragraph 91G(2)(a) as a consequence of the establishment of the ART.
1. This item effects a technical amendment of section 99 by changing the reference to ‘Tribunal’ to ‘tribunal’. There is no definition of ‘Tribunal’ for the purposes of the section.
1281. Item 16: Subsection 114(1)
1. This item effects a technical amendment of subsection 114(1) as a consequence of the establishment of the ART.
1282. Item 17: Subsection 127(2)
1. This item repeals and substitutes subsection 127(2). New subsection 127(2) requires that notification of a decision to cancel a visa must specify the ground for the cancellation. A note at the end of new subsection 127(2) draws attention to new section 340 which requires notification of a merits reviewable decision to include information about review rights.
1283. Item 18: At the end of
subsection 134(1)
1284. Item 19:
At the end of
subsection 134(3A)
1285. Item 20:
At the end of subsection 134(4)
1. These items insert notes at the end of subsections 134(1), 134(3A) and 134(4) which deal with cancellation of business visas (as defined in subsection 134(10)). These notes draw attention to the fact that a decision to cancel a business visa under subsection 134(1), 134(3A) or 134(4) is now reviewable by the ART under Part 5 as a ‘reviewable general visa decision’ (see item 82).
2. As a consequence, section 136 (which provided for review of such decisions by the AAT) is repealed (see item 26).
1286. Item 21: Subsection 134(6)
1. This item effects a technical amendment of subsection 134(6) as a consequence of the establishment of the ART.
1287. Item 22: Subsection 134(7)
1. This item repeals subsection 134(7) (dealing with the obligation to notify the holder of a business visa of the reasons for the cancellation decision, and of their right to have the decision reviewed) because the relevant notification obligations are now subsumed in new sections 339A and 340 (see item 88).
2. New section 339A provides the general requirement for notification of a reviewable decision under Part 5 (which includes the three business visa cancellation decisions in section 134—see item 82) to be given to the person to whom the decision relates. The notification must include reasons for the decision, together with the information about review rights specified in new section 340.
3. Section 134 cancellation decisions are currently AAT-reviewable. Regulations made pursuant to new subsection 347(1) will prescribe a 28-day application period, preserving the current AAT time-limit of 28 days (see item 90). Current standing is preserved in new section 344(1)(b) (item 90).
1288. Item 23: Paragraph 134(8)(a)
1. This item effects a technical amendment of paragraph 134(8)(a) as a consequence of the establishment of the ART.
1289. Item 24: Subparagraph 134(8)(b)(ii)
1. This item effects a technical amendment of subparagraph 134(8)(b)(ii) as a consequence of the establishment of the ART.
1290. Item 25: Paragraph 134(8)(b)
1. This item effects a technical amendment of paragraph 134(8)(b) as a consequence of the establishment of the ART.
1. This item repeals section 136 which provided for AAT review of business visa cancellation decisions under subsections 134(1), (3A) and (4) (see items 18, 19 and 20)
2. The cancellation decisions in question are now reviewable by the ART under Part 5 as ‘reviewable general visa decisions’ (see item 82). The effect of this is to treat these cancellation decisions the same as any other reviewable general visa decision referred to in section 338. Section 134 cancellation decisions would have been reviewable previously under subsection 338(3) but for the effect of section 136 and paragraph 338(3)(c). Section 134 cancellation decisions are now brought into section 338 via the new subsection 338(4A) (see item 82).
1292. Item 27: Paragraph 178(2)(b)
1. This item effects a technical change as a consequence of the repeal of sections 391, 417 and 454 (see item 202).
1293. Item 28: Paragraph 202(2)(c)
1. This item effects a technical amendment of paragraph 202(2)(c). Section 202 relates to the deportation of non-citizens under section 200 of the Migration Act on the basis of an adverse security assessment under the Australian Security Intelligence Organisation Act 1979 (the ASIO Act).
2. The amendment of paragraph 202(2)(c) removes the ambiguity created by the reference to a time period of 30 days within which the subject of an adverse security assessment may apply for a review of that assessment. Under the AAT Act, such an application was required to be made within a period of 28 days. The review application period will now be prescribed by regulations under the ART Bill. A 28-day period will be prescribed.
1294. Item 29: Subsection 202(5)
1. This item repeals and substitutes subsection 202(5). Currently, section 29 of the AAT Act provides for a 28-day period within which an application for review of an adverse security assessment may be made to the AAT. Subsection 29(7) of the AAT Act permits the AAT to extend this period. Existing subsection 202(5) of the Migration Act, however, overrides subsection 29(7) of the AAT Act with the effect that the AAT cannot extend the period within which an application for review of an adverse security assessment may be made.
2. Subclause 142(1) of the ART Bill provides that regulations may prescribe the time period within which applications for review must be made. Subclause 142(2) of the ART Bill permits the ART to extend any such time limit.
3. Regulations to be made under subclause 142(1) of the ART Bill will continue the current 28-day time limit for the making of applications for review of adverse security assessments. New subsection 202(5) will prevent the ART from extending this 28-day time limit.
1295. Item 30: Paragraph 271(4)(a)
1. This item effects a technical amendment of paragraph 271(4)(a) as a consequence of the establishment of the ART.
1296. Item 31: Subsection 271(4) (paragraphs (b) and (c) of the definition of migration proceedings)
1. This item effects technical amendments of subsection 271(4) as a consequence of the establishment of the ART.
1297. Item 32: Section 275 (definition of review authority)
1. This item effects a technical amendment of section 275 as a consequence of the establishment of the ART, by repealing the definition of ‘review authority’, which referred to the MRT and the RRT. A new definition of ‘Tribunal’, referring to the ART, is inserted by item 35.
1. This item effects a technical amendment of section 275 as a consequence of the establishment of the ART, by inserting a reference to ‘reviewable general visa decision’ as defined in Part 5. This is the new term for current ‘MRT-reviewable decisions’.
1. This item effects a technical amendment of section 275 as a consequence of the establishment of the ART, by inserting a reference to ‘reviewable protection visa decision’ as defined in Part 5. This is the new term for current ‘RRT-reviewable decisions’.
1. This item effects a technical amendment of section 275 as a consequence of the establishment of the ART, by inserting a definition of ‘Tribunal’ to mean the ART. For the purposes of Part 3 of the Migration Act, which deals with Migration Agents and Immigration Assistance, the ART replaces the MRT and the RRT as the Tribunal which reviews certain migration decisions (see item 31).
1301. Item 36: Paragraphs 276(1)(c) and (d)
1. This item repeals existing paragraphs 276(1)(c) and (d) and substitutes new paragraphs 276(1)(c) to (f). The effect of this is that references to ‘review authority’ are replaced with references to ‘Tribunal’ (see items 31 and 35), and that court proceedings and ART reviews are dealt with separately.
2. Part 3 controls the giving of immigration assistance to visa applicants or cancellation review applicants in relation to decisions currently reviewable by the MRT and RRT (that is, under the amended Part 5, ‘reviewable general visa decisions’ and ‘reviewable protection visa decisions’).
1302. Item 37: Paragraph 276(2)(c)
1. This item repeals paragraph 276(2)(c) and substitutes new paragraphs 276(2)(c) and (d). The effect of this is that the reference to ‘review authority’ is replaced with a reference to ‘Tribunal’ (consequential upon the amendments made by items 31 and 35), and that court proceedings and ART reviews are dealt with separately.
2. New paragraph 276(2)(d) also makes it clear that it relates only to immigration assistance to persons (other than visa applicants or cancellation review applicants) in the context of reviews by the ART of reviewable general visa decisions. It does not (as does the existing paragraph 276(2)(c)) refer to immigration assistance in the protection visa context because an applicant for such a visa is not nominated or sponsored by another person.
1303. Item 38: Paragraph 277(1)(c)
1. This item effects a technical amendment of paragraph 277(1)(c) as a consequence of the repeal of subparagraphs 277(1)(c)(ii) and (iii) and the insertion of new subparagraph 277(1)(c)(ii) (see item 39).
1304. Item 39: Subparagraphs 277(1)(c)(ii) and (iii)
1. This item effects a technical amendment as a consequence of the establishment of the ART, by repealing subparagraphs 277(1)(c)(ii) and (iii) and replacing them with new subparagraph 277(1)(c)(ii). New subparagraph 277(1)(c)(ii) refers to the new Tribunal and to the new terms ‘reviewable general visa decision’ and ‘reviewable protection visa decision’, and has the same effect as existing subparagraphs 277(1)(c)(ii) and (iii).
1305. Item 40: Paragraphs 277(3)(c) and (d)
1. This item effects a technical amendment as a consequence of the establishment of the ART, by repealing paragraphs 277(3)(c) and (d) and replacing them with new paragraph 277(3)(c). New paragraph 277(3)(c) refers to the new Tribunal and to the new term ‘reviewable general visa decision’. New paragraph 277(3)(c) does not refer to the new term ‘reviewable protection visa decision’ as protection visa applicants are not sponsored or nominated.
1306. Item 41: Section 295 (note)
1. This item replaces the current note at the end of section 295 as a consequence of the establishment of the ART.
2. The new note takes account of the amendment made to section 306 by item 46 which has the effect that an application for review of a decision by the MARA not to register an applicant may be made to the ART (and no longer to the AAT). The new note also draws attention to the requirement under clause 56 of the ART Bill that a person whose interests are affected by the MARA’s decision be given notice of his or her right to seek review of the decision.
1307. Item 42: Subsection 305(1) (note)
1. This item replaces the current note at the end of subsection 305(1) as a consequence of the establishment of the ART.
2. The new note draws attention to the requirement under clause 56 of the ART Bill that a person whose interests are affected by the MARA’s decision under section 305 to cancel or suspend the registration of a registered agent be given notice of his or her right to seek review of the decision.
1308. Item 43: Paragraph 305(3)(a)
1. This item effects a technical amendment of paragraph 305(3)(a) to replace the reference to the AAT Act with a reference to the ART Bill. This amendment is consequential upon the amendment made to section 306 by item 48 which has the effect that an application for review of a decision by the MARA under Division 3 of Part 3 of the Migration Act may be made to the ART and in accordance with the requirements of the ART Bill (and no longer to the AAT in accordance with the requirements of the AAT Act).
1309. Item 44:
Paragraph 305(3)(b)
1310. Item 45:
Subsection 305(3)
1. These items effect technical amendments of paragraph 305(3)(b) and subsection 305(3) as a consequence of the new review arrangements in the amended Part 5 of the Migration Act.
1. This item effects a technical amendment of section 306 to replace the reference to the AAT Act with a reference to the ART Bill. This amendment is consequential upon the amendment made to section 306 by item 48 which has the effect that an application for review of a decision by the MARA under Division 3 of Part 3 of the Migration Act may be made to the ART and in accordance with the requirements of the ART Bill (and no longer to the AAT in accordance with the requirements of the AAT Act).
1. This item amends section 306 to replace the right to seek review of a MARA decision under Division 3 of Part 3 of the Migration Act by the AAT with a right to seek review by the ART.
2. In the translation to the ART, MARA decisions become the only Migration Act decisions not reviewable by the IRD of the ART under Part 5 of the Migration Act. Rather, reviews of such decisions are to take place in the Commercial and General Division of the ART (see item 48). This distinction was made because:
• MARA decisions are different in nature from other Migration Act decisions in that they could be more accurately characterised as ‘commercial’ rather than ‘migration’ (that is, visa-related) decisions; and
• review of a ‘migration’ or ‘refugee’ decision may result in an IRD member commenting on, or even lodging a complaint against, the conduct of a migration agent, which may result in action being taken by the MARA. It was considered inappropriate for the review of MARA decisions to be undertaken by the IRD, as it could give rise to the possibility of, or the appearance of, bias were IRD members to be involved in reviewing decisions taken by the MARA in relation to migration agents who had been ‘criticised’ by a member of the IRD.
3. As MARA decisions are left out of Part 5 of the Migration Act, reviews of such decisions become subject to the ART procedures in the ART Bill, that is Parts 4 to 10 of that Bill will govern the conduct of these reviews, and not the procedures in Part 5 of the Migration Act.
1313. Item 48: At the end of section 306
1. This item adds a new subsection 306(2) which provides that a review by the ART of a decision of the MARA made under Division 3 of Part 3 of the Migration Act is to take place in the Commercial and General Division of the Tribunal (see also items 35 and 47 above).
2. Regulations made under the ART Bill will prescribe the time within which an application for review of such a MARA decision is to be made to the ART, as such time limits are not prescribed by the ART Bill itself.
1314. Item 49: After subsection 321(2)
1. This item inserts a new subsection 321(2A) into section 321 to provide that the ART may make a disclosure to the MARA for the purpose of facilitating or expediting the exercise of the powers, or the performance of the functions, of the MARA (see subsection 321(1)).
2. Section 321 authorises certain disclosures of personal information. Disclosure authorised by or under law is an exception to the general rule about non-disclosure of personal information (see Information Privacy Principle 11.1(d) as set out in section 14 of the Privacy Act 1988).
1. This item inserts a definition of ‘applicant’ into section 337 to make it clear that a reference to an ‘applicant’ in Part 5 of the Migration Act is a reference to a person who has applied for review of a decision under that Part.
1. This item inserts a definition of ‘Chief Executive Officer’ into section 337 as a consequence of the amendments of Part 5 to provide for review by the ART of all decisions currently reviewable by the MRT and the RRT, and of certain decisions currently reviewable by the AAT (new section 343—see item 90).
2. The Chief Executive Officer of the ART is appointed by the Governor-General under the ART Bill. The function of the Chief Executive Officer is to assist the President of the ART, in such manner as the President requires, in the management of the administrative affairs of the Tribunal.
1. This item inserts a definition of ‘consultant’ into section 337 as a consequence of the amendments of Part 5 to provide for review by the ART of all decisions currently reviewable by the MRT and the RRT, and of certain decisions currently reviewable by the AAT (new section 343—see item 90).
2. Under the ART Bill a ‘consultant’ is a person engaged as a consultant by the Chief Executive Officer of the Tribunal. The power to engage consultants gives the Tribunal additional flexibility to engage persons for short periods and with specific expertise for particular tasks.
1. This item inserts a definition of ‘Immigration and Refugee Division’ into section 337 as a consequence of the amendments of Part 5 to provide for review by the ART of all decisions currently reviewable by the MRT and the RRT, and of certain decisions currently reviewable by the AAT (new section 343—see item 90). Such reviews are to be conducted in the IRD of the Tribunal (new section 343A—see item 90).
2. The ART is divided into six Divisions (in addition, further Divisions may be created by regulations). This is intended to ensure that the Tribunal will enjoy the beneficial aspects of the existing specialist review tribunals, such as their ability to develop decision-making procedures and practices that are appropriate for, and tailored to, the types of decisions that they review.
1. This item inserts a definition of ‘IRD executive member’ into section 337 as a consequence of the amendments of Part 5 to provide for review by the IRD of the ART of all decisions currently reviewable by the MRT and the RRT, and of certain decisions currently reviewable by the AAT (new section 343—see item 90).
2. The ART Bill provides for one executive member to be appointed to each Division to assist the President, in such manner as the President requires, in managing the administrative affairs of that Division. The IRD executive member will be able to make directions under section 353A of the Migration Act relating to such matters as the conduct of reviews and the allocation and prioritising of work. However, any section 353A directions made by the Minister or the President prevail over any section 353A directions made by the IRD executive member (items 100, 101 and 104). The IRD executive member will also have power to direct who shall constitute, or reconstitute, the Tribunal for the purpose of a particular review, subject to directions under section 353A (items 107 to 122).
1. This item inserts a definition of ‘IRD member’ into section 337 as a consequence of the amendments of Part 5 to provide for review by the IRD of the ART of all decisions currently reviewable by the MRT and the RRT, and of certain decisions currently reviewable by the AAT (new section 343—see item 90).
2. Members are appointed to the ART under the ART Bill and are to be appointed to at least one Division.
1321. Item 56: Section 337 (definition of member)
1. This item effects a technical amendment by replacing the existing definition of ‘member’ in section 337 with a new definition referring to the ART Bill which provides for the appointment, by the Governor-General, of members to the ART.
1322. Item 57: Section 337 (definition of MRT-reviewable decision)
1. This item repeals the definition of ‘MRT-reviewable decision’. This term will no longer be used in the Migration Act as decisions currently referred to as MRT-reviewable decisions will now be known as reviewable general visa decisions (items 64 and 71 to 85).
1. This item inserts a definition of ‘non-reviewable Minister’s decision’ into section 337.
2. Non-reviewable Minister’s decisions are decisions of the Minister made (or taken to have been made) under the following provisions of the Migration Act:
• subsection 500A(1) or (3),
• subsection 501(1), (2) or (3),
• section 501A,
• section 501B, or
• subsections 501F(2) or (3).
3. Such decisions are not reviewable by the ART (items 71, 74 and 86). These decisions were previously excluded from merits review by various provisions throughout the Migration Act.
1. This item inserts a definition of ‘President’ into section 337 as a consequence of the amendments of Part 5 to provide for review by the ART of all decisions currently reviewable by the MRT and the RRT, and of certain decisions currently reviewable by the AAT (new section 343—see item 90).
2. The new definition refers to the ART Bill which provides for the appointment, by the Governor-General, of a President of the Tribunal. The President will be able to make directions under section 353A of the Migration Act relating to such matters as the conduct of reviews and the allocation and prioritising of work. However, any section 353A directions made by the Minister will prevail over any section 353A directions made by the President (see items 100, 101 and 104). The President will also have power to direct who shall constitute, or reconstitute, the Tribunal for the purpose of a particular review, subject to directions under section 353A (items 107 to 122).
1325. Item 60: Section 337
(definition of Principal
Member)
1326. Item 61:
Section 337 (definition of Registrar)
1. These items repeal the definitions of the terms ‘Principal Member’ and ‘Registrar’ as a consequence of the amendments of Part 5 to provide for review by the ART of all decisions currently reviewable by the MRT and the RRT, and of certain decisions currently reviewable by the AAT (new section 343—see item 90). There is no office of ‘Principal Member’ or ‘Registrar’ in the ART, so these terms will no longer be used in Part 5.
1. This item inserts a definition of ‘reviewable deportation decision’ into section 337, providing that the term has the meaning given by (new) section 338D of the Migration Act (inserted by item 86).
2. A ‘reviewable deportation decision’ is a decision made by the Minister or a delegate of the Minister to order the deportation of a non-citizen because of circumstances specified in section 201 (unless the Minister has issued a certificate under section 502 declaring the person to be an excluded person or a conclusive certificate under section 339—see item 86). Section 201 allows for the deportation of certain non-citizens convicted of certain offences. Such decisions, currently reviewable by the AAT in accordance with the AAT Act, will in future be reviewable by the ART under Part 5 of the Migration Act (see items 71 and 90).
1. This item inserts a definition of ‘reviewable general character decision’ into section 337, providing that the term has the meaning given by (new) section 338B of the Migration Act (inserted by item 86).
2. A ‘reviewable general character decision’ is a decision made by a delegate of the Minister under subsection 501(1) to refuse to grant a visa, or under subsection 501(2) to cancel a visa, on character grounds (other than a decision relating to a protection visa applicant or holder) unless the Minister has issued a conclusive certificate under section 339 (see item 86). Such decisions, currently reviewable by the AAT in accordance with the AAT Act, will in future be reviewable by the ART under Part 5 of the Migration Act (see items 71 and 90).
1. This item inserts a definition of ‘reviewable general visa decision’ into section 337, providing that the term has the meaning given by section 338 of the Migration Act.
2. This new term covers decisions which are currently ‘MRT-reviewable decisions’ as defined in section 338, as well as business visa cancellation decisions (see items 72 to 85). Section 338 decisions are currently reviewable by the MRT, while business visa cancellations are currently reviewable by the AAT. Both types of decisions will, in future, be reviewable by the ART under Part 5 of the Migration Act (see items 71 and 90).
1. This item inserts a definition of ‘reviewable protection visa character decision’ into section 337, providing that the term has the meaning given by (new) section 338C of the Migration Act (inserted by item 86).
2. A ‘reviewable protection visa character decision’ is:
• a decision of a delegate of the Minister to refuse to grant under subsection 501(1), or to cancel under subsection 501(2), a protection visa; or
• a decision to refuse to grant, or to cancel, a protection visa relying on one or more of Articles 1F, 32 or 33(2) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (the Refugees Convention);
unless the Minister has issued a conclusive certificate under section 339 in relation to the decision or, in the case of the second bullet point above, a certificate under section 502 relates to the decision.
3. Such decisions, currently reviewable by the AAT in accordance with the AAT Act, will in future be reviewable by the ART under Part 5 of the Migration Act (see items 71 and 90).
1. This item inserts a definition of ‘reviewable protection visa decision’ into section 337, providing that the term has the meaning given by (new) section 338A of the Migration Act (inserted by item 86).
2. This new term covers decisions which are currently ‘RRT-reviewable decisions’ as defined in existing section 411. A ‘reviewable protection visa decision’ is a decision to refuse to grant, or a decision to cancel, a protection visa, unless that decision:
• comes within one of the other types of reviewable decisions;
• relates to a non-citizen who is not in the migration zone when the decision is made;
• is one in respect of which the Minister has issued a conclusive certificate under section 339; or
• is a non-reviewable Minister’s decision.
3. Decisions to refuse to grant, or decisions to cancel, protection visas are currently reviewable by the RRT under Part 7 of the Migration Act. In future, such decisions will be reviewable by the ART under Part 5 of the Migration Act (see items 71 and 90). Part 7 of the Migration Act will be repealed (see item 202).
1332. Item 67: Section 337 (definition of Senior Member)
1. This item effects a technical amendment by replacing the existing definition of ‘Senior Member’ in section 337 with a new definition referring to the ART Bill which provides for the appointment, by the Governor-General, of senior members and other members to the ART.
1. This item inserts a definition of ‘staff’ into section 337 as a consequence of the amendments of Part 5 to provide for review by the ART of all decisions currently reviewable by the MRT and the RRT, and of certain decisions currently reviewable by the AAT (new section 343—see item 90).
2. Under the ART Bill, staff necessary to assist the Chief Executive Officer are to be persons engaged under the Public Service Act 1999. The Chief Executive Officer can also arrange with an Agency Head for the services of officers or employees of the Agency to be made available for the purposes of the Tribunal. The Chief Executive Officer has the power to determine the duties of staff and the locations where staff are to perform those duties.
1334. Item 69: Section 337 (definition of Tribunal)
1. This item effects a technical amendment of the definition of ‘Tribunal’ in section 337 to reflect the amendments of Part 5 which provide for review by the ART of all decisions currently reviewable by the MRT and the RRT, and of certain decisions currently reviewable by the AAT (new section 343—see item 90).
1335. Item 70: Division 2 of Part 5 (heading)
1. This item repeals and substitutes the heading for Division 2 of Part 5 as a consequence of the amendments of Part 5 to provide for review by the ART of all decisions currently reviewable by the MRT and the RRT, and of certain decisions currently reviewable by the AAT (new section 343—see item 90).
1336. Item 71: Before section 338
1. This item inserts new section 337A which sets out the decisions to which Part 5 applies. Part 5 as amended brings together all provisions in the Migration Act providing for the merits review of visa and visa-related decisions. Part 7 of the Migration Act which currently deals with the review of protection visa decisions is repealed (see item 202), as are sections 136 and 500 which currently deal with the review by the AAT of certain other decisions (see items 26 and 217).
2. In addition to those decisions which were previously referred to as ‘MRT-reviewable decisions’ (and which are now referred to as ‘reviewable general visa decisions’), Part 5 also applies to:
• ‘reviewable protection visa decisions’ (currently ‘RRT-reviewable decisions’, reviewable under Part 7 of the Migration Act);
• ‘reviewable general character decisions’ (non-protection visa decisions of a delegate of the Minister under section 501, currently reviewable by the AAT);
• ‘reviewable protection visa character decisions’ (protection visa decisions of a delegate of the Minister under section 501 and decisions refusing to grant or cancelling a protection visa on grounds relating to Articles 1F, 32 or 33(2) of the Refugees Convention, currently reviewable by the AAT); and
• ‘reviewable deportation decisions’ (decisions under section 200 of the Migration Act, currently reviewable by the AAT).
1338. Item 72: Subsection 338(1)
1. This item effects a technical amendment of subsection 338(1) by replacing the reference to ‘an MRT-reviewable decision’ with a reference to ‘a reviewable general visa decision’. This reflects the new terminology consequential to the amendments of Part 5 providing for the review by the ART of decisions currently reviewable by the MRT.
1339. Item 73: Paragraph 338(1)(b)
1. This item effects a technical amendment of paragraph 338(1)(b) by replacing the reference to ‘an RRT-reviewable decision’ with a reference to ‘a reviewable protection visa decision’. This reflects the new terminology consequential to the amendments of Part 5 and the repeal of Part 7 to provide for Part 5 review by the ART of decisions currently reviewable by the RRT.
1340. Item 74: Paragraph 338(1)(c)
1. This item repeals paragraph 338(1)(c) and substitutes new paragraphs 338(1)(c), (d) and (e).
2. New paragraphs 338(1)(c) and (d) exclude reviewable general character decisions and reviewable protection visa character decisions from the definition of ‘reviewable general visa decision’, as there may otherwise be some overlap between the definitions. For example, a decision to refuse to grant a visa could, if the refusal was under section 501, be both a reviewable general visa decision and a reviewable general character decision, but for new paragraph 338(1)(c).
3. New paragraph 338(1)(e) contains the substance of current paragraph 338(1)(c), but also excludes from the definition of reviewable general visa decision other non-reviewable Minister’s decisions.
1341. Item 75: Subsection 338(2)
1. This item effects a technical amendment of subsection 338(2). It is no longer necessary to exclude section 501 decisions from subsection 338(2) as section 501 decisions are already excluded by the amendments of subsection 338(1) (see item 74).
1342. Item 76:
Subsection 338(2)
1343. Item 77:
Subsection 338(3)
1. These items effect a technical amendment of subsections 338(2) and (3) by replacing the reference to ‘an MRT-reviewable decision’ with a reference to ‘a reviewable general visa decision’. This reflects the new terminology consequential to the amendments of Part 5 providing for the review by the ART of decisions currently reviewable by the MRT.
1344. Item 78: Paragraph 338(3)(a)
1. Subsection 338(3) deals with cancellation decisions subsets of which are also dealt with by subsection 338(4) and 338(4A). To avoid any overlap, subsection 338(3)(a) excludes from subsection 338(3) decisions otherwise covered by subsection 338(4) (bridging visa cancellations) or 338(4A) (business visa cancellations).
1345. Item 79: Paragraph 338(3)(b)
1. This item effects a technical amendment of subsection 338(3) which will only have two paragraphs following the repeal of paragraph 338(3)(c) effected by item 80—hence the ‘or’ at the end of subsection 338(3)(b) will be redundant.
1346. Item 80: Paragraph 338(3)(c)
1. This item effects a technical amendment of paragraph 338(3)(c). It is no longer necessary to exclude section 501 decisions from subsection 338(3) as section 501 decisions are already excluded by the amendments of subsection 338(1) (see item 74). Additionally, business visa cancellation decisions (decisions under section 134(1), (3A) and (4)), which were previously excluded from MRT review because they were AAT-reviewable, and which are now reviewable by the ART as reviewable general visa decisions (see item 82), are excluded from subsection 338(3) by the new paragraph 338(3)(a) (see item 78).
1347. Item 81: Subsection 338(4)
1. This item effects a technical amendment of subsection 338(4) by replacing the reference to ‘MRT-reviewable decisions’ with a reference to ‘reviewable general visa decisions’. This reflects the new terminology consequential to the amendments of Part 5 providing for the review by the ART of decisions currently reviewable by the MRT.
1348. Item 82: After subsection 338(4)
1. This item inserts new subsection (4A) into section 338. New subsection 338(4A) brings decisions under section 134 to cancel business visas within the ambit of the term ‘reviewable general visa decisions’. Currently, such decisions are reviewable by the AAT. By virtue of this amendment (and item 26) business visa cancellations will be subject to the same merits review regime as other non-character visa cancellation decisions.
1349. Item 83: Subsections 338(5) to (9)
1. This item effects a technical amendment of subsections 338(5) to (9) by replacing references to ‘an MRT-reviewable decision’ with references to ‘a reviewable general visa decision’. This reflects the new terminology consequential to the amendments of Part 5 providing for the review by the ART of decisions currently reviewable by the MRT.
1350. Item 84: Paragraphs 338(5)(a),
(6)(a) and (7)(a)
1351. Item 85:
Paragraph 338(8)(a)
1. These items effect technical amendments of paragraphs 338(5)(a), (6)(a) and (7)(a), and a similar technical amendment of paragraph 338(8)(a), to make it clear that visas of particular classes may be granted while the non-citizen/visa applicant is in the migration zone or may be granted while the non-citizen is outside the migration zone. The review rights which flow from any decision not to grant a visa of a particular class will depend on whether the non-citizen was in or out of the migration zone at the time the visa application and/or the decision on the visa application were/was made.
2. It is not correct (as the current formulation of the relevant provisions suggest) that there are visas which could not be granted while the non-citizen is in the migration zone: a particular visa may be able to be granted while the non-citizen is in the migration zone, but only if the non-citizen was in the migration zone when the visa application was made. That is, the visa may not be able to be granted while the non-citizen is in the migration zone, not because of their presence in the zone but because of where the non-citizen was when the visa application was made.
3. For example, a spouse visa may be granted while the non-citizen is in or out of the migration zone: where the non-citizen applied from outside the migration zone the visa cannot be granted while the non-citizen is in the migration zone; where the non-citizen applied in the migration zone the visa can be granted while the non-citizen is in the migration zone.
1352. Item 86: After section 338
1. This item inserts four new sections. The new sections define the terms ‘reviewable protection visa decisions’, ‘reviewable general character decisions’, ‘reviewable protection visa character decisions’, and ‘reviewable deportation decisions’.
2. These definitions cover decisions that were previously reviewable by the RRT and the AAT. With the establishment of the ART, these Tribunals will cease to exist and all merits review of visa and visa-related decisions will take place in the IRD of the ART. The provisions dealing with merits review of decisions will be consolidated in the amended Part 5 of the Migration Act (rather than spread across several Parts of the Migration Act).
3. The new defined terms are used throughout Part 5 to refer to the types of decisions reviewable by the IRD, and, in some cases, to differentiate between the distinct types of reviewable decisions where different rules apply in relation to their review (for example, provisions to protect the identities of applicants for, or holders of, protection visas—see items 166 and 179).
1. New section 338A provides that a ‘reviewable protection visa decision’ is a decision to refuse to grant, or a decision to cancel, a protection visa, unless the decision:
• is one in respect of which the Minister has issued a conclusive certificate under section 339;
• relates to a non-citizen who is not in the migration zone when the decision is made;
• is a reviewable protection visa character decision; or
• is a non-reviewable Minister’s decision.
2. Decisions to refuse to grant, and decisions to cancel, protection visas are currently reviewable by the RRT under Part 7 of the Migration Act; that Part is repealed by item 202.
1. New section 338B provides that a ‘reviewable general character decision’ is a decision of a delegate of the Minister under subsection 501(1) to refuse to grant a visa, or under subsection 501(2) to cancel a visa, on character grounds, unless the Minister has issued a conclusive certificate under section 339 in relation to the decision. Such decisions are currently reviewable by the AAT.
1. New section 338C provides that a ‘reviewable protection visa character decision’ is:
• a decision of a delegate of the Minister under subsection 501(1) to refuse to grant, or under subsection 501(2) to cancel, a protection visa; or
• a decision to refuse to grant, or to cancel, a protection visa relying on one or more of Articles 1F, 32 or 33(2) of the Refugees Convention;
unless the Minister has issued a conclusive certificate under section 339 in relation to the decision or, in the case of the second bullet point above, a certificate under section 502 relates to the decision.
2. Such decisions are currently reviewable by the AAT.
1. New section 338D provides that a ‘reviewable deportation decision’ is a decision of the Minister to order the deportation of a non-citizen because of circumstances specified in section 201, unless the Minister has issued a conclusive certificate under section 339 in relation to the decision, or a certificate under section 502 (declaring the subject of the decision to be an excluded person) relates to the decision. Section 201 allows for the deportation of certain non-citizens convicted of certain offences. Such decisions are currently reviewable by the AAT.
1357. Item 87: At the end of section 339
1. This item makes a technical amendment of section 339 by adding new subsection 339(2) to make it clear that the issue of a conclusive certificate under section 339 is not reviewable under Part 5.
1358. Item 88: After Division 2 of Part 5
1. This item inserts new Division 2A after Division 2 of Part 5. New Division 2A comprises new sections 339A to 342 and:
• ensures that notification is given, in respect of all decisions reviewable under Part 5, to the person to whom the decision relates of the decision and of the reasons therefor;
• ensures that when a person is notified of a decision to which Part 5 applies, he or she is also advised of merits review rights;
• contains requirements for the provision of additional documents when reviewable general character or reviewable protection visa character decisions are notified.
1. New subsection 339A(1) imposes a general obligation on the Minister to notify persons in writing of decisions to which Part 5 applies, and of the reasons for such decisions.
2. Specific obligations to notify will continue to exist in sections 66 (in respect of decisions to refuse to grant visas), section 127 (in respect of decisions to cancel visas) and section 501G (in respect of decisions to refuse to grant, or to cancel, visas on character grounds). New section 339A is intended to fill in the gaps by ensuring that notification occurs in respect of any reviewable decisions for which there is not already a specific notification requirement in the Act or regulations.
3. New subsection 339A(2) requires that the notice be given by one of the methods specified in new section 494B (inserted by item 216) or, if the person to whom the decision relates is in immigration detention, by a method prescribed by the regulations.
1. New section 340 requires notification of a decision to which Part 5 applies to include:
• advice that an application may be made to the ART for review of the decision;
• advice about the time period within which a review application can be made and about who can apply; and
• any other information required to be included by the regulations.
1. New section 341 requires that notification of reviewable general character decisions, and of reviewable protection visa character decisions, which relate to persons in the migration zone be accompanied by two copies of all relevant documents in the possession or control of the decision maker (other than documents containing non-disclosable information). This requirement was previously contained in subsection 501G(2) which is repealed by item 228.
1. New section 342 provides that a failure to comply with a requirement of this Division does not affect the validity of a decision. This is consistent with existing provisions dealing with the notification of decisions (subsections 66(4), 127(3), 129(3) and 501G(4)).
1363. Item 89: Division 3 of Part 5 (heading)
1. This item repeals and substitutes the heading for Division 3 of Part 5 as a consequence of the establishment of the ART.
1. This item repeals section 347 and inserts 11 new sections into Division 3 of Part 5. These new sections:
• provide for the review by the IRD of the ART of decisions to which Part 5 applies (new sections 343 and 343A);
• provide that certain provisions of the ART Bill do not apply to reviews conducted in the IRD (new section 343B);
• bring together various provisions in the Migration Act dealing with the question of who has standing to make an application for review (new section 344), the form for making such an application (new section 346), and the time limits within which such an application is required to be made (new section 347).
2. The sections require the Secretary to be notified of an application for review and to provide the Tribunal with all other relevant documents in the Secretary’s possession or control. The new sections also provide when certain character decision reviews may begin.
1. New section 343 provides that an application may be made, in accordance with Part 5, for review by the ART of a decision to which Part 5 applies.
2. The decisions to which Part 5 applies are set out in new section 337A (inserted by item 71). These are decisions which are currently reviewable by the MRT and the RRT and certain decisions which are currently reviewable by the AAT. On establishment of the ART these Tribunals cease to exist and the decisions in question will be reviewable in the ART.
1. New section 343B provides that when the ART reviews a decision to which Part 5 applies, the review is to be take place in the IRD of the Tribunal.
1. New section 343B provides that clause 7 and Parts 4 to 10 of the ART Bill do not apply to the review by the ART of decisions to which Part 5 applies. The application of the definition of ‘core provision’ in section 6 and of the notes below the headings to Parts 2 and 3 of the ART Bill are also disapplied.
2. As amended by this Act, Part 5 of the Migration Act will be a self-contained code for the review by the ART of decisions to which Part 5 applies. This acknowledges that in the migration context there are substantive exceptions to many of the general review procedures contained in the ART Bill. Matters such as standing to apply for review, time limits within which to apply, the lack of a second tier of review, strict limits on appeals to the Federal Court, a Ministerial intervention power to substitute a decision for certain decisions of the review body, review ‘exclusion’ provisions for particular decisions, and prescribed times within which certain review decisions must be made are examples of some of those exceptions.
3. It is made clear in new section 343B that the exclusion of Parts 4 to 10 of the ART Bill includes the exclusion of the core provisions, as defined in clause 7 (and clause 6) of that Bill, located in Parts 4 to 10.
1. New section 344 provides who can apply for merits review of a decision to which Part 5 applies. It combines into one section all existing provisions of the Migration Act dealing with standing to make an application for merits review. The current AAT standing is also translated into the new Part 5 for relevant decisions.
2. Existing sections 347 (for MRT-reviewable decisions), 412 (for RRT-reviewable decisions), and 500 (for deportation and character decisions) are repealed by items 90, 202 and 217 respectively, and the substance of these sections is contained in new section 344.
3. New subsection 344(1) repeats existing subsections 347(2) and (3), prescribing who may make an application for review of a reviewable general visa decision as follows:
• a non-citizen who is the subject of a decision covered by subsection 338(2), (3) or (4), provided he or she is in the migration zone when the application for review is made;
• the sponsor or nominator referred to in a decision covered by subsection 338 (5) or (8);
• the relative referred to in a decision covered by subsection 338(6) or (7);
• the non-citizen who is the subject of a decision covered by subsection 338A(7A), provided he or she was in the migration zone at the time when the decision was made and is in the migration zone when the application for review is made; and
• for decisions covered by subsection 338(9), the person prescribed by the regulations.
4. Standing was not dealt with in section 134 or 136: section 136 merely provided for review by the AAT. The AAT Act provided that a person whose interests are affected by the decision could seek review (the ART Bill similarly provides). In the amended Part 5 of the Migration Act, this has been expressed as ‘a non-citizen who is the subject of a decision covered by subsection 338(4A)’ may seek review of the decision (subsection 338(4A) relates to section 134 cancellation decisions).
5. New subsection 344(2) reflects the content of existing subsections 412(2) and (3) in providing that an application for review of a reviewable protection visa decision may only be made by the non-citizen who is the subject of the decision and provided the non-citizen is in the migration zone when the application for review is made.
6. New subsection 344(3) reflects the content of existing subsection 500(3) in providing that an application for review of a reviewable general character decision may only be made by a person who would have been able to make an application for review if the decision had been a reviewable general visa decision. For example, if the decision is a decision to refuse the visa, the only person who may apply is the person who would have been entitled to apply under new subsection 344(1), had the decision been made under section 65.
7. New subsection 344(4) reflects the essence of existing subsection 500(3) in providing that an application for review of a reviewable protection visa character decision may only be made by the non-citizen who is the subject of the decision and provided the non-citizen is in the migration zone when the application for review is made. Insofar as is relevant, subsection 500(3) provides that a person is not entitled to make an application for review of a decision unless the person would be entitled to seek review of the decision under Part 7 if the decision had been made on another ground. In relation to Part 7 RRT review, subsections 412(2) and (3) provide that an application for review may only be made by the non-citizen who is the subject of the decision and by a non-citizen who is in the migration zone when the application for review is made.
8. New subsection 344(5) reflects the content of existing subsection 500(2) in providing that an application for review of a reviewable deportation decision may only be made by a person whose interests are affected by the decision and who is either an Australian citizen or a lawful non-citizen whose continued presence in Australia is not subject to any limitation as to time imposed by law.
1. New subsection 346(1) provides that an application for review under Part 5 must be made in a manner and form specified in directions under section 353A.
2. New subsection 346(2) provides that an application for review of a reviewable general character decision, or of a reviewable protection visa character decision, which relates to a person in the migration zone must be accompanied by one set of the documents given to the person under section 341 of the Act. This reflects the content of existing subsection 500(6C) which is repealed by item 217.
1. New subsection 346A(1) provides that where a fee is prescribed in respect of the making of an application for review of a decision to which Part 5 applies, the application must be accompanied by the prescribed fee or by an application for waiver of the fee.
2. New subsection 346A(2) provides that the ART must decide, in accordance with the regulations, whether to waive the fee.
3. If the ART does not waive the fee, new subsection 346A(3) requires the Tribunal to notify the applicant of this decision in writing in the manner described in paragraph (a). The applicant must pay the fee within 14 days after receiving such notification. The review application does not comply, and is taken never to have complied, with the requirements of section 346A if the applicant does not pay the fee within the 14 days.
4. This provision is very similar to clause 143 of the ART Bill.
1. New section 347 sets out the time limits within which an application for merits review must be made.
2. New subsection 347(1) states that an application for review of a reviewable general visa decision must be made within the period prescribed by the regulations.
3. Subsections 347(2) and (3) provide the following maximum periods which the regulations may prescribe in respect of the making of an application for review of a reviewable general visa decision:
• if the decision is covered by subsection 338(2), (3), (4) or (7A)—no later than 28 days after the day the person receives notice of the decision; or
• if the decision is covered by subsection 338(5), (6), (7) or (8)—no later than 70 days after the day the person receives notice of the decision.
4. These provisions mirror existing subparagraphs 347(1)(b)(i) and (ii).
5. New subsection 347(4) states that an application for review of a reviewable protection visa decision must be made within the period prescribed by the regulations. It also provides that the maximum period which may be prescribed by the regulations is 28 days after the day on which the person receives notice of the decision. This mirrors existing paragraph 412(1)(b).
6. New subsection 347(5) states that an application for review of a reviewable general character decision or a reviewable protection visa character decision must be made:
• if the decision relates to a person in the migration zone—not later than 9 days after the day on which the person receives notice of the decision (this mirrors current section 500(6B) except that the 9-day period, which presently only relates to current section 500(1)(b) matters, is extended to apply to what are now paragraph 500(1)(c) matters (where a section other than section 501 is used to refuse or cancel a visa on ‘refugee character’ grounds)) and copies of documents in accordance with new section 341 or, if these are received on different days, the later of those days; or
• in any other case—not later than 28 days after the date on which the person receives notice of the decision.
7. New subsection 347(6) states that an application for review of a reviewable deportation decision must be made not later than 28 days after the day on which the person receives notice of the decision.
1. New subsection 347A(1) provides that an applicant for review of a decision to which Part 5 applies may, at any time before the review ends, give the ART written statements about matters of fact for consideration by the ART, and/or written arguments about issues arising in relation to the review and/or any document or thing that the applicant wishes the Tribunal to consider in relation to the review. This section is based on current subsections 358(1) and 423(1). (New section 347D is the parallel provision for the Secretary, based on current subsections 358(2) and 423(2).)
2. New subsection 347(2) provides that written statements, written arguments, documents or things given to the ART under subsection (1) must be given in accordance with directions under section 353A.
1. New subsection 347B(1) requires the Chief Executive Officer of the ART to give the Secretary notice of applications for review of decisions to which Part 5 applies. The notice must be given in accordance with directions made under section 353A. This mirrors the current procedures for applications to the MRT (subsection 352(1) of the Migration Act), RRT (subsection 418(1) of the Migration Act) and AAT (subsection 29(11) of the AAT Act).
2. New subsection 347B(2) requires that directions under section 353A must specify the period within which, and manner in which, notice must be given where the application is for the review of a reviewable general character decision, or a reviewable protection visa character decision, which relates to a person in the migration zone. This will reflect the effect of existing subsection 500(6E) combined with relevant regulations, in respect of decisions made under section 501 and will extend this to current section 500(1)(c) matters (where a section other than section 501 is used to refuse or cancel a visa on ‘refugee character’ grounds).
1. New section 347C outlines the obligations imposed on the Secretary in respect of providing information relevant to reviews of decisions to which Part 5 applies.
2. New subsection 347C(1) requires the Secretary, on notification under new section 347B, to give to the Chief Executive Officer a copy of the decision and the reasons therefor, and all relevant documents which are in the Secretary’s possession or control that have not already been given to the applicant when the decision was notified.
3. This reflects the current requirements in subsections 352(2) and 418(2) and subsections 352(4) and 418(3).
4. Additionally, the latter requirement reflects the current position under subsection 500(6F) for decisions made under section 501, but overcomes an anomaly in subsection 500(6F) which requires the Secretary to provide all relevant documents to the AAT, including those already submitted to the AAT by the applicant when making the review application. (In reviews of character-related decisions where the person is in the migration zone, two sets of such documents have already been provided to the applicant who is obliged to give one set to the AAT on making the review application. This regime is continued in the amended Part 5 (see section 341 and subsection 346(2)) but new paragraph 347C(1)(c) excludes documents already given to the applicant from the documents which the Secretary must give to the Tribunal.)
5. New subsection 347C(2) requires the Secretary, on notification under new section 347B of an application for review of a reviewable general character decision, or a reviewable protection visa character decision, which relates to a person in the migration zone, to provide to the Chief Executive Officer of the ART any documents the Secretary considers relevant and which contain non-disclosable information within 14 working of the notification.
6. New subsection 347C(3) provides that the documents are to be given in the manner and form specified in directions under section 353A and, if the documents are given under new subsection (1), within the period specified in accordance with directions under section 353A.
1. New section 347D provides that the Secretary may, at any time before the review ends, give the ART written statements about any matters of fact that the Secretary wishes the Tribunal to consider in relation to the review, and/or written arguments about issues arising in relation to the review and/or any document or thing that the Secretary wishes the Tribunal to consider in relation to the review. This provision mirrors new 347A relating to the applicant.
2. Subsection (2) provides that the written statements, written arguments, documents or things must be given in accordance with directions under section 353A.
1376. Item 91: Subsection 348(1)
1. This item makes a technical amendment of subsection 348(1). Under the existing subsection 348(1) the MRT must review a decision if an application is properly made under existing section 347. That section currently contains all requirements for making a review application, that is requirements relating to form, fee, time limits and standing.
2. Following the repeal of existing section 347 by item 90, such matters are now dealt with in separate sections:
• new section 344 (standing);
• new section 346 (form);
• new section 346A (fee); and
• new section 347 (time limits).
Subsection 348(1) is amended to refer to these new provisions.
1377. Item 92: After subsection 348(1)
1. This item inserts a new subsection into section 348. New subsection 348(1A) provides that the Tribunal must not review a decision if the application for review does not comply with the requirements of new sections 344, 346, 346A and 347.
2. Subsection 348(1) (as amended by item 91) provides that the Tribunal must review a decision if an application for review complies with the requirements of sections 344, 346, 346A and 347.
1378. Item 93: After section 348
1. New section 348A prevents the Tribunal from beginning to review a reviewable general character decision or a reviewable protection visa character decision until at least 14 days after the Secretary is notified that the application for review has been made. This reflects existing subsection 500(6G) (section 500 is repealed by item 217).
1380. Item 94: Subsection 349(1)
1. This item effects a technical amendment of subsection 349(1) by replacing the reference to ‘an MRT-reviewable decision’ with a reference to ‘a decision to which this Part applies’. This reflects the new terminology consequential to the amendments of Part 5 providing for the review by the ART of decisions currently reviewable by the MRT and the RRT and certain decisions currently reviewable by the AAT.
1381. Item 95: Subsection 349(2)
1. This item repeals subsection 349(2) and substitutes new subsections 349(2), (2A) and (2B).
2. New section 349 modifies the current ‘powers of the Tribunal’ provisions (MRT section 349/RRT section 415), distinguishing more precisely between the Tribunal’s general powers and the Tribunal’s powers in relation to prescribed matters.
3. In relation to prescribed matters, the Tribunal may only affirm the decision or set the decision aside and remit the matter for reconsideration. This is in recognition of the fact that, for many migration decisions, the decision may have ‘unassessed/determined’ parts.
4. For example, there may be a number of criteria specified under the regulations in relation to a particular visa, all of which were not considered by the primary decision maker (who will have stopped their assessment of criteria at the first ‘unmet’ criterion), but all of which must be satisfied before a visa of the particular class can be granted. In such circumstances, the Tribunal will have been reviewing a ‘refusal decision’ which, if overturned, will not be able to found the grant of a visa as there will be outstanding criteria in relation to which assessments and decisions have not been made. That is, the Tribunal will not be in a position to decide that a visa should be granted. Rather, it might only say that it is of the view that the visa applicant meets the particular criterion that the primary decision maker decided the visa applicant did not meet.
5. While the Tribunal no longer has specific power to ‘vary’ a decision, new section 349 makes it clear that the Tribunal may affirm a decision for the same or different reasons and, in relation to non-prescribed matters, the Tribunal may set the decision aside and make a decision in substitution.
1382. Item 96: Subsection 351(1)
1. This item effects a technical amendment of subsection 351(1). Under the subsection as amended, the Minister will be able to substitute a more favourable decision for a decision of the ART relating to a reviewable general visa decision or a reviewable protection visa decision.
2. This brings together into one provision two existing intervention powers of the Minister (section 351 relating to MRT-reviewable decisions and section 417 relating to RRT-reviewable decisions). The intervention power will now apply to decisions relating to the review of section 134 business visa cancellation decisions, as these are reviewable general visa decisions under the amended Part 5.
3. The other intervention powers which currently exist in the Migration Act (see sections 391 and 454) are repealed. This is because those powers are currently exercisable following a decision by the AAT on referral of a review application by the MRT or RRT. Following the merging of the AAT, MRT and RRT into the one Tribunal there is no longer a basis for a power to refer reviews, or for the Minister to intervene following a decision on a referred review, in the manner currently available.
1383. Item 97: Paragraph 351(5)(b)
1. This item amends subsection 351(5) by repealing paragraph 351(5)(b) and inserting new paragraphs 351(5)(b) and (c). Subsection 351(5) provides that certain information is not to be included in the statement tabled in Parliament when the Minister exercises the intervention power in section 351.
2. Currently only the names of the applicant and certain other persons are to be excluded from the statement. As amended, the prohibition in subsection 351(5) will extend to any information that may identify the applicant or the other person. This reflects existing subsection 417(5) (section 417 allows the Minister to intervene in respect of RRT-reviewable decisions).
1. This item replaces existing section 352 (which deals with the requirement that the Secretary be notified of a review application, an issue now dealt with in new section 347B) with a new section 352.
2. New subsection 352(1) provides that an applicant for review may, by way of written notice to the ART in accordance with any directions under section 353A, withdraw the application for review at any time (subsection (1)). Under subsection 352(2), if the application for review is withdrawn, the review ends and the ART is required to notify the Secretary of the ending of the review in accordance with new section 379B (inserted by item 201).
1. This item amends section 353 which relates to the Tribunal’s way of operating. The substance of existing subsection 353(1) (which makes it an objective of the Tribunal to provide review which is fair, just, economical, informal and quick) is repealed. This is because this objective is already provided for in clause 3 of the ART Bill.
2. New paragraphs 353(a) and (b) mirror clauses 91 and 92 of the ART Bill and provide that the Tribunal is to act with as little formality and technicality as a proper consideration of the matters before it permits, and that the Tribunal is not bound by the rules of evidence. New paragraph 353(c) provides that in carrying out its functions under Part 5, the Tribunal must comply with directions under section 353A. Subclause 161(7) of the ART Bill imposes an equivalent requirement.
3. A failure by the Tribunal to comply with a direction under section 353A is addressed in subsections 353A(3) and (4): see item 105.
1388. Item 100: Subsection 353A(1)
1. This item amends the opening words of section 353A(1) to provide that directions may be made under that section by the Minister, the President or the IRD executive member.
2. Currently, section 353A allows the Principal Member of the MRT to make directions. Section 499 of the Act currently allows the Minister to give directions to persons or bodies having functions or powers under the Act. The amendments of section 353A place the power of the Minister to give directions to the Tribunal in Part 5. The reference to the President and IRD executive member is substituted for the existing reference to the Principal Member, to reflect the nomenclature to be used in the new Tribunal.
3. This item also alters the heading to section 353A, omitting ‘Principal Member’ and substituting ‘Minister, President and IRD executive member’.
1389. Item 101: Paragraphs 353A(1)(a) and (b)
1. This item repeals paragraphs (a) and (b) of subsection 353A(1) and substitutes new paragraphs (a) to (f). New paragraphs (a) to (f) set out the matters which can be dealt with in directions.
2. New paragraph (a) allows directions to be given regarding the conduct of reviews. This mirrors existing paragraph (b).
3. New paragraphs (b) to (e) relate to the operation of the Tribunal, but deal with this in a more detailed way than existing paragraph (a), which simply allowed for directions to be given as to the operation of the Tribunal.
4. Pursuant to new paragraphs (b) to (e), directions may be given as to:
• the allocation of the work of the Tribunal (paragraph (b));
• the number of members who are to constitute the Tribunal for particular reviews of decisions, and the expertise of those members (paragraph (c));
• priorities for reviewing decisions (paragraph (d));
• any other aspect of the operation of the Tribunal that relates to the review of decisions (paragraph (e)); and
• any matter that is permitted or required by any provision of the Act or regulations to be dealt with in the directions (paragraph (f)).
1390. Item 102: After subsection 353A(1)
1. This item inserts a new subsection 353A(1A) to prevent the Minister from giving a direction under subsection 353A(1) in relation to a particular review. This will ensure that, while the Minister might, for example, give a direction under paragraph 353A(1)(c) that for the review of reviewable general character decisions two or three members of senior member level or higher are to constitute the Tribunal, the Minister can not direct which particular senior members are to constitute the Tribunal for a particular general character decision review.
1391. Item 103: Subsection 353A(2)
1. This item effects a technical amendment of subsection 353A(2).
1392. Item 104: After subsection 353A(2)
1. This item inserts new subsection 353A(2A) to make it clear which directions prevail in the event of any inconsistency.
2. To the extent of any inconsistency:
• directions given by the Minister are to prevail over directions given by the President or the IRD executive member; and
• directions given by the President are to prevail over directions given by the IRD executive member.
3. This is consistent with the ART Bill which allows for practice and procedure directions given by the Minister responsible for the particular Division to prevail over directions given by the President or the relevant executive member, and for Presidential directions to prevail over executive member directions (subclause 161(6) of the ART Bill).
1393. Item 105: Subsections 353A(3) and (4)
1. This item replaces existing subsections 353A(3) and (4) with new subsections 353A(3) to (5).
2. New subsection 353A(3) provides that failure by the ART to comply with a direction under section 353A does not invalidate a decision made by the ART and does not (subject to new subsection 353A(4)) expose such a decision to judicial review under Part 8 of the Migration Act.
3. New subsection 353A(4) provides the limited circumstances where a failure by the Tribunal to comply with a direction under section 353A is to be judicially-reviewable. Paragraph 353A(4)(b) lists the types of directions which are critical to the decision-making process, to then set up the consequence that non-compliance by the Tribunal with these, and only these, will ground an application for judicial review (see paragraph 353A(3)(b)).
4. The particular directions highlighted in paragraph 353A(4)(a) relate to those directions which prescribe the reviewable decisions before the Tribunal which will be subject to the review on the papers procedure and, on the other hand, those where an appearance is to be permitted, as well as the directions relating to reviewable decisions hearings where representation, assistance to present arguments, and examination and cross-examination will be permitted.
5. Paragraph 353A(4)(b) is a regulation head of power which will enable further directions to be prescribed to permit judicial review in additional circumstances where there has been non-compliance with directions.
6. New subsection 353A(5) makes it clear that directions given under section 353A may provide for adversarial processes. The ART will normally operate in a non-adversarial, rather than adversarial, manner. However, for particular classes of cases, directions may be given that the Tribunal is to conduct reviews in an adversarial way, which may include permitting the representation of parties and allowing each party to appear before the Tribunal to present evidence, cross-examine witnesses of the other party, and make arguments and submissions in support of the party’s case. Particular classes of cases in respect of which it is anticipated that directions may be made for adversarial processes include the review of decisions under section 501 of the Act, where the character of the visa applicant or visa holder is at issue.
1394. Item 106: After section 353A
1. This item inserts new section 353B which provides the ART with the ability to determine its own practice and procedure (see clause 108 of the ART Bill).
1. New section 353B provides that the ART may determine its own practice and procedure for the conduct of a review (subsection (1)), provided any determination made by the ART is not inconsistent with the Migration Act, the regulations, or directions under section 353A.
1396. Item 107: Subsection 354(1)
1. This item amends subsection 354(1) to provide that for the review of a decision to which Part 5 applies the ART is to be constituted in accordance with directions under section 353A.
1397. Item 108: At the end of paragraph 354(1)(a)
1. This item effects a technical amendment of paragraph 354(1)(a), adding an ‘or’ (consistent with current drafting convention).
1398. Item 109: Paragraph 354(1)(c)
1. This item amends subsection 354(1) to require the members (except in the case of a member who is the President) who constitute the Tribunal for the review of a decision to which Part 5 applies to be IRD members.
1399. Item 110: Subsection 354(2)
1. This item amends subsection 354(2) to provide that directions about who is to constitute the Tribunal for a particular review are to given by either the President or the IRD executive member acting in accordance with directions under section 353A.
1400. Item 111: Subsection 354(2)
1. This item effects a technical amendment of subsection 354(2) to make the wording of that subsection consistent with the wording of subsection 354(1).
1401. Item 112: Subsection 354(3)
1. This item repeals subsection 354(3), which permits the Principal Member of the MRT to give to the Senior Members guidelines for giving directions about who is to constitute the Tribunal for particular cases. Under the amended Part 5 there will be no guidelines in relation to constitution matters: there will be directions under section 353A. Further, the power to constitute and reconstitute the Tribunal (under sections 354, 355 and 355A) is vested in the President and the executive member.
2. New subsection 354(3) deals with when subsection 354(1) constitution directions may be given providing for two or three member Tribunals.
3. It is intended that the Tribunal will normally be constituted by a single member for reviews under Part 5. However, the President or IRD executive member may, subject to any directions under section 353A, direct that two or three members are to review a particular decision, if the President or IRD executive member considers it is appropriate to do so:
• because the review raises a principle or issue of general significance; or
• because one or more of the members have particular expertise of relevance.
1402. Item 113: Subsection 355(1)
1. This item effects a technical amendment of subsection 355(1) to ensure consistency of expression.
1403. Item 114: Subsection 355(2)
1. This item effects a technical amendment of subsection 355(2) by substituting a reference to the President or IRD executive member for the current reference to the Principal Member. The amendment also ensures that a direction reconstituting the Tribunal under section 355 is given in writing.
1404. Item 115: Subsection 355(3)
1. This item effects a technical amendment of subsection 355(3) by substituting a reference to the President or IRD executive member for the current reference to the Principal Member. The amendment also ensures that a direction reconstituting the Tribunal under section 355 is given in writing.
1405. Item 116: Paragraph 355(3)(b)
1. This item makes a minor amendment of paragraph 355(3)(b) to make it clear that where the Tribunal is reconstituted under section 355, the new member or members must be an IRD member or IRD members.
1406. Item 117: Subsection 355(4)
1. This item makes a technical amendment of subsection 355(4), substituting the word ‘must’ for the word ‘shall’ to ensure consistency of expression.
1407. Item 118: Subsection 355(4)
1. This item effects a technical amendment, omitting ‘of the proceedings’ as this expression is not consistent with the conduct of reviews provided for in the amended Part 5.
1408. Item 119: Subsection 355(5)
1. This item repeals subsection 355(5). This subsection currently requires the Principal Member, in exercising the reconstitution powers under section 355, to have regard to the objective set out in section 353. The amended section 353 does not contain any ‘objectives’ and there is no longer a Principal Member of the Tribunal.
1409. Item 120: Subsections 355A(1) and (2)
1. This item replaces existing subsections 355A(1) and (2) with two new subsections.
2. Section 355A deals with the power to reconstitute the Tribunal to ensure the conduct of reviews is fair, just, economical, informal and quick and/or to ensure the conduct of reviews is in accordance with section 353A directions. Existing subsections 355A(1) and (2), which deal with circumstances in which the Tribunal may be reconstituted and how such reconstitution is to take place, have been redrafted so that new subsection 355A(1) now:
• reflects the replacement of the office of the Principal Member of the Tribunal by the President or IRD executive member;
• ensures that a direction reconstituting the Tribunal under section 355A is given in writing;
• ensures that any reconstitution of the Tribunal under section 355A is either for the purposes of ensuring that the review is fair, just, economical, informal and quick, or for the reason that a member or members of the Tribunal have not complied with a direction under section 353A.
3. New subsection 355A(2) makes it clear that the Tribunal may be reconstituted more than once.
1410. Item 121: Subsection 355A(3)
1. This item makes a minor technical amendment of subsection 355A(3).
1411. Item 122: Subsection 355A(3)
1. This item effects a technical amendment of subsection 355A(3), omitting ‘of the proceedings’ as this expression is not consistent with the conduct of reviews provided for in the amended Part 5.
1412. Item 123: After section 355A
237. This item inserts new section 355B, which provides that members of the ART must comply with directions under section 354, 355, or 355A. These sections allow the President or the IRD executive member to make directions about who is to constitute the Tribunal for the purposes of a particular review (section 354), and to make directions reconstituting the Tribunal where a member is unavailable (section 355) or for other reasons (section 355A). Non-compliance with section 353A directions or with section 354, 355 and 355A directions may result in the removal of a member (see section 343B(2)—inserted by item 90—and ART clause 28).
1414. Item 124:
Subsection 356(1)
1415. Item 125:
Subsection 356(1)
1416. Item 126:
Subsection 356(2)
1417. Item 127:
Subsection 356(2)
1418. Item 128:
Subsection 357(1)
1. These items effect technical amendments of relevant subsections to ensure consistency of expression.
1419. Item 129:
Subsection 357(2)
1420. Item 130:
Subsection 357(2)
1. These items effect technical amendments of subsection 357(2) to replace references to the Principal Member with references to the President.
1421. Item 131: Subsection 357(3)
1. This item replaces existing subsection 357(3) with new subsections 357(3) and (3A). Section 357 determines who is to preside at a particular review.
2. New subsection 357(3) provides that where the IRD executive member is one of the members of the Tribunal, and the President is not a member of the Tribunal, as constituted for the purpose of the particular review, the IRD executive member is to preside.
3. New subsection 357(3A) is similar to existing subsection 357(3) and provides that, if one of the members is a senior member and there is no other more senior person (such as the IRD executive member) who is a member of the Tribunal for the purpose of the particular review, then that senior member will preside.
1422. Item 132: Subsection 357(4)
1. This item effects a technical amendment of subsection 357(4) as a consequence of the addition of new subsection 357(3A) by item 131. The amendment also replaces the reference to the Principal Member with a reference to the President or IRD executive member.
1. This item repeals section 358. The content of this section now appears in new sections 347A and 347D which are both inserted by item 90.
1424. Item 134: Subsection 359(1)
1. This item effects a technical amendment of subsection 359(1) to ensure consistency of expression.
2. This item also alters the heading to section 359 to better reflect the purpose of the section.
1425. Item 135: Subsection 359(2)
1. This item amends subsection 359(2) by omitting the reference to the information sought being ‘additional’ information. The amendment also makes it clear that the invitation to provide information must be given by the Tribunal in writing.
1426. Item 136: Subsections 359(3) and (4)
1. This item replaces existing subsections 359(3) and (4) with new subsections 359(3) and (4).
2. New subsection 359(3) incorporates the content of existing subsections 359(3) and (4) and provides more detailed information on how an invitation is to be given to an applicant in detention.
3. It does this by providing that an invitation by the Tribunal under subsection 359(2) to a person to give information must be given to that person by one of the methods specified in new section 379A (inserted by item 201). However, if the person is an applicant who is in immigration detention, the invitation must be given to that person by a method prescribed by the regulations.
4. The new subsection also requires an invitation to contain a summary of the effect of new section 362C (see existing section 359C) which is inserted by item 160 and provides for the consequences of failing to respond to an invitation to give information.
5. New subsection 359(4) provides that an invitation to the Secretary must be given by one of the methods specified in new section 379B (inserted by item 201).
1427. Item 137: Subsection 359A(1)
1. This item omits the words ‘subject to subsection (2)’ in subsection 359A(1), and replaces them with ‘subject to sections 375A and 376’. Subsection 359A(1) creates an obligation on the Tribunal to provide adverse information to the applicant for comment. Given the change to the formulation of subsection 359A(2) effected by item 138, the existing reference in subsection 359A(1) to subsection (2) is otiose (subsection (2) provides for the means by which the invitation to comment is to be given to the applicant) and is therefore deleted.
2. The new references to sections 375A and 376 are intended to provide a more detailed scheme of exemption from the general obligation to provide adverse information than currently exists in section 359A. Currently, information which is ‘non-disclosable information’ does not have to be disclosed (paragraph 359A(4)(c)). Non-disclosable information is defined in section 5 of the Act. Whether or not information is non-disclosable information depends upon the opinion of the Minister.
3. Section 375A enables the Minister to certify that certain information or documents can only be disclosed to the Tribunal. Section 376 enables the Minister to certify that disclosure of information or a document would be contrary to the public interest, and to give the Tribunal advice about the significance of the document or information. The Tribunal must have regard to any such advice in deciding whether it is appropriate to disclose the information or document to the applicant.
4. The relationship between these sections and section 359A is currently unclear. By making section 359A subject to sections 375A and 376, it is clear that the obligation in section 359A to provide adverse information to the applicant does not apply to information or documents in respect of which a section 375A certificate has been issued, and may not apply to information and documents the subject of a section 376 certificate. This is a more certain test than the current exemption in section 359(4)(c) relating to non-disclosable information, which depends upon the Minister’s opinion, rather than on a written certification.
1428. Item 138: Subsections 359A(2) and (3)
1. This item repeals subsections 359A(2) and (3), and substitutes a new subsection 359A(2).
2. New subsection 359A(2) incorporates the content of existing subsections 359A(2) and (3) and provides more detailed information on how an invitation is to be given to an applicant in detention.
3. It does this by providing that certain information and an invitation to comment on that information must be given to the review applicant by one of the methods specified in new section 379A (inserted by item 201). However, if the applicant is in immigration detention, the information and invitation must be given by a method prescribed by the regulations.
1429. Item 139: Paragraphs 359A(4)(b) and (c)
1. This item replaces existing paragraphs 359A(4)(b) and (c) with new paragraphs (b) and (c).
2. The new paragraphs add the following types of information to the list of information which does not have to be given to the applicant under section 359A for comment:
• information given by the person to whom the decision relates (where this is not the same person as the review applicant); and
• information already given to the applicant or to the person to whom the decision relates (where this is not the same person as the review applicant).
3. These types of information are added because the information would have already been available to the review applicant.
4. Removed from the list is information which is ‘non-disclosable information’. This is consequential to the amendment made by item 137. That amendment is intended to provide a more certain test for when disclosure should be denied in the public interest, by making section 359A subject to sections 375A and 376, rather than the current provision which exempts from disclosure any ‘non-disclosable information’. Sections 375A and 376 enable the Minister to certify that certain information is not to be disclosed by the Tribunal, or is only to be disclosed where it is appropriate to do so having regard to advice from the Minister regarding the significance of the information. It is anticipated that any information which would be ‘non-disclosable information’ (which is defined in section 5 of the Act and depends upon the Minister’s opinion) will be the subject of such a certification.
1430. Item 140: Subsection 359B(1)
1. This item effects a technical amendment of subsection 359B(1) consequential upon the amendment made by item 135 to subsection 359(2).
2. This item also makes a similar consequential amendment of the heading to section 359B.
1431. Item 141: Subsection 359B(2)
1. This item effects a technical amendment of subsection 359B(2) consequential upon the amendment made by item 135 to subsection 359(2).
1432. Item 142: Subsection 359B(2)
1. This item amends subsection 359B(2) to provide that information or comments given in response to an invitation under section 359 or 359A, where no interview is to be held, must be given to the Tribunal within a period specified in the invitation in accordance with directions under section 353A. Currently, subsection 359B(2) provides for the time for giving information or comments to be prescribed by the regulations. If no period is prescribed, the time is a reasonable period.
1433. Item 143: Paragraph 359B(3)(b)
1. This item amends paragraph 359B(3)(b) to provide that, where an invitation is given under section 359 or 359A to provide information or comments at an interview, the interview is to take place within a period specified in the invitation in accordance with directions under section 353A. Currently, paragraph 359B(3)(b) provides for regulations to prescribe the period within which the interview is to be held. If no period is prescribed, the interview is to take place within a reasonable period.
1434. Item 144: Subsection 359B(4)
1. This item effects a technical amendment of subsection 359B(4), consequential upon the amendment made by item 142.
1435. Item 145: Subsection 359B(4)
1. This item amends subsection 359B(4). That subsection allows the Tribunal to extend the period within which a person must provide information or comments sought under section 359 or 359A other than at an interview. Under this amendment, the extension is to be for a further period or periods in accordance with directions under section 353A. Currently, the extension is to be for a further period prescribed by the regulations.
1436. Item 146: Subsection 359B(5)
1. This item effects a technical amendment of subsection 359B(5), consequential upon the amendment made by item 143.
1437. Item 147: Paragraph 359B(5)(b)
1. This item amends paragraph 359B(5)(b). That paragraph allows the Tribunal to extend the period within which a person must provide information or comments sought under section 359 or 359A at an interview. Under this amendment, the extension is to be for a further period or periods in accordance with directions under section 353A. Currently, the extension is to be for a further period prescribed by the regulations.
1438. Item 148: Sections 359C, 360, 360A, 361 and 362
1. This item repeals sections 359C, 360, 360A, 361 and 362 and substitutes 10 new sections.
2. The new sections deal with:
• the Tribunal’s power to require the Secretary to provide the Tribunal with certain documents in certain circumstances (new section 359C);
• review on the papers (new sections 360, 360A, 360B, and 360C);
• appearing before the Tribunal and calling witnesses (new sections 361, 361A and 361B); and
• the role of particular information in particular reviews (new section 362).
1439. Tribunal requiring documents
1. New section 359C provides that the Tribunal may, in writing, require the Secretary to provide the Tribunal with documents the Tribunal considers may be relevant to its review of a reviewable general character decision or a reviewable protection visa character decision where the decision relates to a person in the migration zone. New section 359C contains the effect of existing subsection 500(6K) (which relates to character decisions made under section 501 where the applicant is onshore—section 500 is repealed by item 217). It also extends the provision to protection visa character decisions made under sections other than section 501 (as well as to such decisions made under section 501).
1441. Review on the papers
1. New sections 360, 360A, 360B, and 360C set out a procedure whereby the Tribunal may conduct a review of a particular decision on the papers without the need for a hearing. The Tribunal may use this power to reach a decision that is either favourable or adverse to the applicant. This is consistent with the general powers of the Tribunal contained in the ART Bill. Currently, the MRT and the RRT may only decide on the papers if the decision is favourable to the applicant, or the applicant consents to not appearing, or the applicant fails to respond to an invitation to provide information or to comment on information, or to appear at a scheduled hearing (current subsections 360(2) and 425(2) and subsections 362B(1) and 426A(1)).
2. The Tribunal’s power to conduct a review on the papers is subject to directions made under section 353A. This section allows directions to be made by the Minister, the President or the IRD executive member on a range of matters, including the conduct of the review of decisions, and any matter that is permitted or required by any provisions of the Act to be dealt with in the directions (see item 101). This will allow directions to be made specifying that for particular groups of cases the Tribunal is not to conduct a review on the papers but must hold a hearing before reaching its decision.
3. The new provisions specify at what stage the Tribunal is to consider whether to conduct a review on the papers. The provisions ensure that, before an adverse decision is made on the papers, the applicant has the opportunity to argue that the review should not be conducted on the papers, and to submit arguments and documents in support of his or her application for review. For both favourable and adverse reviews on the papers, the Secretary is to be informed and invited to make written submissions, but only where section 353A directions so require.
1. New section 360 requires the Tribunal to consider whether the review of a particular decision should be conducted without the applicant or any other person being permitted to appear before the Tribunal and without any person being summoned before the Tribunal to give evidence.
2. If the Tribunal has invited a person to give information under section 359, the Tribunal must not consider whether to conduct the review on the papers until the time for providing that additional information has passed (new paragraph 360(1)(c)). Similarly, if the Tribunal has invited the applicant to comment on adverse information under section 359A, the Tribunal must not consider whether to conduct the review on the papers until the time for commenting has passed (new paragraph 360(1)(d)).
3. This ensures that where the Tribunal has sought information which may assist it in deciding whether to proceed on the papers, it will not proceed to making that decision until the information has been received or the time for providing it has passed.
4. By virtue of new subsection 360(2) the obligation in section 360 to consider whether to proceed on the papers is subject to directions under section 353A. Those directions may provide that, in respect of certain groups of cases, the Tribunal must not proceed on the papers but must permit the applicant to appear before reaching a decision on the review (see new subsection 361(3)).
1. New section 360A allows the Tribunal to make a decision on the papers which is favourable to the applicant.
2. While the Tribunal is not required to inform the applicant that it is intending to make a favourable decision, new subsection 360A(2) provides that directions under section 353A may require that, for a particular review, the Tribunal is to notify the Secretary of its view that the review should be decided on the papers in the applicant’s favour, and to invite written submissions from the Secretary about whether the review should be conducted in that manner.
3. New subsection 360A(3) requires such notice or invitation to be given to the Secretary by one of the methods specified in section 379B (inserted by item 201).
4. New subsection 360A(4) provides that any written submissions provided by the Secretary in response to an invitation from the Tribunal must be given within the time, and in the manner and form, specified in directions under section 353A.
5. New subsection 360A(5) provides that, provided the Tribunal has complied with any directions under section 353A and taken into account any written submissions given in accordance with new subsection 360A(4), then the Tribunal may make a favourable decision on the papers.
1. New section 360B applies where the Tribunal considers that the review should proceed on the papers, and has not reached a decision in favour of the applicant. In such cases, the Tribunal is required by virtue of new subsection 360B(1) to inform the applicant that it intends to conduct the review on the papers, and to invite the applicant to give:
• written submissions about whether the review should proceed on the papers;
• written statements about any matters of fact that the applicant wishes the Tribunal to consider;
• written arguments about issues relating to the review; and
• any documents or things that the applicant wishes the Tribunal to consider.
2. The invitation is to state, in accordance with directions under section 353A, the period within which, and the manner or form in which, the applicant must submit such material to the Tribunal.
3. New subsection 360B(2) provides that the notice (including the invitation) to the applicant must be given by one of the methods specified in new section 379A (inserted by item 201) or, where the applicant is in immigration detention, by a method prescribed by the regulations.
4. New subsection 360B(3) provides that the notice (including the invitation) referred to in subsection (1) may be given in a single document, or in two or more documents that are given to the applicant together.
5. New subsection 360B(4) states that directions under section 353A may provide that, in the case of a particular review, the Tribunal must notify the Secretary in writing that it considers that the review should proceed on the papers, and invite written submissions from the Secretary about whether the review should be conducted in that manner. This will allow flexibility for the Tribunal to reach a decision on the papers in certain classes of cases without the need to inform the Secretary or to invite submissions from the Secretary.
6. By virtue of new subsection 360B(5), the notice or invitation referred to in new subsection 360B(4) must be given to the Secretary by one of the methods specified in new section 379B (inserted by item 201).
7. New subsection 360B(6) requires the Secretary to comply with directions under section 353A as to the time within which, and the manner and form in which, a response to an invitation under new subsection 360B(4) is to be given.
1. New section 360C provides that where the Tribunal, having taken into account any material given to it under new section 360B and having complied with any relevant directions under section 353A, still considers that the review should be conducted on the papers, it may proceed to so conduct the review.
1446. Appearing before the Tribunal and calling witnesses
1. New sections 361, 361A and 361B deal with appearances before the Tribunal. The Tribunal has a discretion, subject to section 353A directions, to allow a person to appear before the Tribunal. The discretionary nature of the Tribunal’s power to permit appearances is consistent with clause 96 of the ART Bill.
2. The new sections also allow the Tribunal to impose conditions or make directions regarding a person’s appearance. An applicant who is invited to appear may ask the Tribunal to take evidence from another person or to obtain written material relevant to the review. The Tribunal must have regard to the request, but is not required to comply with it.
3. If the Tribunal invites an applicant to appear, section 353A directions may require the Tribunal to permit the Secretary also to appear.
1. New subsection 361(1) gives the Tribunal a discretion, at any stage in the review of a decision to which Part 5 applies, to permit a person to appear before it. The person may be permitted to do any one or more of the following:
• give evidence;
• make statements;
• present arguments;
• answer questions put by the Tribunal or another person appearing;
• ask questions of the Tribunal or another person giving evidence.
2. New subsection 361(2) allows the Tribunal to:
• impose conditions on a person appearing or doing any of the things listed in new subsection 361(1);
• withdraw its permission for a person to appear or do any of the things listed; or
• direct the person as to the manner in which the person is to do any of the things listed.
3. New subsection 361(3) provides a specific power to make directions under section 353A providing that, in particular circumstances, the Tribunal must permit the applicant or a specified person to appear. For example, a direction may be made providing that the Tribunal must permit the applicant to appear in reviews of reviewable general character decisions, reviewable protection visa character decisions and reviewable deportation decisions. Subsection 361(3) also allows directions to be made under section 353A providing that the Tribunal cannot do particular things otherwise permitted by subsection (2).
4. This mirrors the qualification in new section 360 that reviews on the papers are subject to any section 353A directions. Where a section 353A direction is made preventing reviews on the papers under new section 360 for certain classes of cases, it is envisaged that a corresponding direction will be made for the purposes of new section 361, requiring an invitation to the applicant to appear for those classes of cases.
1. New subsection 361A(1) requires the Tribunal to give written notice to an applicant who is permitted to appear:
• stating that the applicant is permitted to appear before the Tribunal for one or more of the purposes referred to in new subsection 361(1);
• stating the day on which, and the time and place at which, the applicant is permitted to appear;
• inviting the applicant to give the Tribunal any written statements of fact, written arguments, and documents or things that the applicant wishes the Tribunal to consider;
• stating, in accordance with any directions under section 353A, the period within which, and the requirements as to the manner or form in which, such statements, arguments, documents or things are to be given to the Tribunal; and
• summarising the effect of sections 361B (which allows the applicant to ask the Tribunal to obtain evidence from another person), 362B (which deals with the consequences of failure of an applicant to appear pursuant to an invitation) and 374 (which deals with fees for witnesses).
2. New subsection 361A(2) provides that the notice must be given by one of the methods in new section 379A or, where the applicant is in immigration detention, by a method prescribed by the regulations.
3. New subsection 361A(3) provides that the time specified in the notice for the applicant’s appearance must be after the end of the period specified for the giving of any written material or things.
4. New subsection 361A(4) states that directions under section 353A may provide that, in particular circumstances, the Tribunal must:
• notify the Secretary that it has permitted the applicant to appear; and
• either invite the Secretary to appear or to give the Tribunal written submissions about whether the Secretary should be permitted to appear.
5. This recognises that there will be cases in which the Tribunal may allow the applicant to appear without permitting an appearance by the Secretary, but ensures that where a direction so provides, the Secretary will have a right of appearance before the Tribunal. Where no direction applies, it will still be open to the Tribunal, in its discretion, to invite the Secretary to appear under new subsection 361(1).
6. New subsection 361A(5) requires that any notice or invitation must be given to the Secretary by one of the methods specified in new section 379B (inserted by item 201).
7. New subsection 361A(6) requires the Secretary to comply with directions under section 353A as to the time within which, and the manner and form in which, a response to an invitation under new subsection 361A(4) is to be given.
1. New subsection 361B(1) provides that, within 7 days of receiving a section 361A notice, an applicant may give the Tribunal written notice that he or she wants the Tribunal to obtain evidence (oral or written) from a person or persons named in the notice, or to obtain other relevant written material.
2. Pursuant to new subsection 361B(2) the Tribunal must have regard to such a notice but is not required to comply with it.
3. New subsection 361B(3) makes it clear that the Tribunal is not required to adjourn the review or delay making a decision in order to obtain evidence from any person.
1450. Role of particular information in particular reviews
1. New section 362 replicates the content of existing section 416 (which is repealed by item 202) in relation to the Tribunal:
• not being required to consider information considered in an earlier application for review of a reviewable protection visa decision; and
• being able to have regard to, and take to be correct, any decision the Tribunal made about or because of that information.
1452. Item 149: Subsection 362A(1)
1. This item effects a technical change to subsection 362A(1), consequential upon the changes made by items 153 and 154.
2. In addition, the note at the end of the item replaces the current heading ‘Applicant entitled to have access to written material before Tribunal’ with ‘Access to documents and information—reviewable general visa decisions’. The new heading reflects the operation of the new section 362A, as amended by items 149 to 156.
1453. Item 150: Subsection 362A(1)
1. This item omits ‘assistant under section 366A’ and substitutes ‘authorised review assistant’ (a definition of which is inserted by item 156).
2. Subsection 366A(1) currently provides that an applicant may be assisted by another person ‘while appearing before the Tribunal’ and subsection 366A(2) limits the role of the assistant. (In general, assistants are not allowed to present arguments or address the Tribunal—but the Tribunal may permit an assistant to present arguments or to address the Tribunal in exceptional circumstances.) Current subsection 366A(4) makes it clear that a review applicant is entitled to engage a person to assist the review applicant otherwise than while the review applicant is appearing before the Tribunal.
3. The current MRT review procedure presupposes that an applicant will be given a hearing, the only exception being where the Tribunal can make a decision in the applicant’s favour on the papers. Entitling the applicant’s assistant to have access to written material given or produced to the Tribunal for the purposes of the review only at the stage when the applicant is appearing before the Tribunal would not seem to be very logical: it is arguably too late in the process.
4. The review procedure in the new Part 5 is based on review on the papers and discretionary hearings. As is the case now, applicants will be entitled to be assisted at any time or all times during the review process and, where an applicant is permitted to appear before the Tribunal, the limitations on the ability of the applicant’s assistant to present arguments or address the Tribunal will be preserved (see items 172 to 174).
5. However, the change effected by this item ensures that the applicant’s assistant can have access to documents at any time before the review is ended (subject to sections 375A and 376).
1454. Item 151: Subsection 362A(1)
1. Section 362A is subject to sections 375A and 376, provisions dealing with (limitations on) disclosure. These sections relate to ‘documents or information’.
2. For this reason, item 151 effects a technical amendment of subsection 362A(1) to achieve consistency, omitting ‘written material, or a copy of any written material’ and substituting ‘document or information’.
1455. Item 152: Subsection 362A(1)
1. Section 362A currently relates to MRT-reviewable decisions only. There is currently no equivalent provision in Part 7 dealing with RRT-reviewable decisions.
2. Item 152 inserts ‘of a reviewable general visa decision’ to preserve the status quo: section 362A will not operate in relation to reviewable protection visa decisions, reviewable deportation decisions, reviewable general character decisions or reviewable protection visa character decisions.
1456. Item 153: Subsection 362A(2)
1. This item inserts the words ‘subject to subsection (2A)’ at the beginning of subsection 362A(2). Existing subsection 362A(2) provides that section 362A ‘does not override any requirements of the Privacy Act 1988’ and, in particular, that section 362A is not to be taken, for the purposes of that Act, to require or authorise disclosure of information.
2. The effect of the amendment made by item 153 is to acknowledge/recognise that new subsection 362A(2A) inserted by item 154 does authorise the disclosure of personal information.
3. Disclosure authorised by or under law is an exception to the general rule about non-disclosure of personal information (see Information Privacy Principle 11.1(d) as set out in section 14 of the Privacy Act 1988).
1457. Item 154: After subsection 362A(2)
1. This item inserts a new subsection (2A) into section 362A. The new subsection provides that, where an applicant for review of a reviewable general visa decision is a person other than the person to whom the decision relates, that applicant is entitled to have access to the same material as the subject of the decision would be entitled to have access to if the subject of the decision were seeking review in his or her own right.
2. This amendment is necessary to ensure that, for example, an Australian sponsor who is seeking review of a reviewable general visa decision on behalf of a visa applicant outside the migration zone can have access to the same material that the visa applicant would be able to have access to if he or she were able to seek review on his or her own behalf.
1458. Item 155: Subsection 362A(3)
1. This item repeals subsection 362A(3) substituting a new subsection which makes it clear that the applicant’s right to seek access to documents or information ceases when his or her review is ended. A review may be ended by the Tribunal giving a decision (see section 367, item 179), by the Tribunal ending the review without making a decision (see section 362B, item 159; and sections 362C and 362D, item 160), or by the applicant withdrawing his or her application (see section 352, item 98).
1459. Item 156: At the end of section 362A
1. This item inserts a definition of ‘authorised review assistant’ for the purposes of section 362A. An authorised review assistant is a person authorised to act on behalf of the applicant concerned in connection with the applicant’s review.
1460. Item 157: Subsection 362B(1)
1. This item effects a technical change to subsection 362B(1) to ensure consistency of expression.
1461. Item 158: Paragraph 362B(1)(a)
1. This item makes a consequential amendment of paragraph 362B(1)(a). The change is necessary because of the repeal of existing section 360 (dealing with invitation to the applicant to appear before the MRT) by item 148 and the insertion of new section 361A (notice of permission to appear) by item 148. This item therefore substitutes the existing reference in paragraph 362B(1)(a) to ‘is invited under section 360 to appear before the Tribunal’ with a reference to ‘is given notice of permission to appear before the Tribunal under section 361A’.
1462. Item 159: Subsection 362B(1)
1. This item omits and substitutes the final words of subsection 362B(1). Existing subsection 362B(1) provides that, where an applicant fails to appear at a scheduled hearing, after having been invited to do so, the Tribunal may make a decision without taking any further action to allow or enable the applicant to appear. Item 159 amends this subsection to provide that the ART may either make a decision without taking further action to allow the applicant to appear, or end the review without making a decision. This is consistent with the ART’s powers in the ART Bill. For more detail on ending review without making a decision, see item 160 below.
2. The power to end the review or make a decision under section 362B only applies where the applicant has been given notice of the date, time and place scheduled for his or her appearance.
3. Existing subsection 362B(2) clarifies that the Tribunal is not required to end the review or make a decision where the applicant fails to appear—the Tribunal may reschedule the applicant’s appearance.
1463. Item 160: After section 362B
1. This item inserts four new sections, dealing with ending review, notice of a decision to end a review, and reinstatement of review.
1464. Ending review without making a decision
1. Currently, the MRT and RRT cannot end a review without making a decision. If a person fails to give information requested by the MRT or RRT under section 359 or 424, or the applicant fails to provide comments on adverse information provided by the MRT or RRT under section 359A or 424A, the MRT or RRT may make a decision without taking further action to obtain the information or comments (sections 359C and 424C). If the applicant fails to appear at a scheduled hearing, the MRT or RRT may make a decision without taking further action to enable the applicant to appear (sections 362B and 426A).
2. The ART Bill gives the Tribunal power to end a review if the applicant fails to appear at a hearing (clause 128) or fails, without reasonable excuse, to comply with any practice or procedure direction, or any direction given or obligation imposed by the Tribunal (clause 129). In the migration context, similar provision is made as follows.
1. New section 362C applies where:
• the Tribunal has invited the applicant or another person to give information under section 359, and the applicant or other person fails to do so before the time for giving the information has passed; or
• the Tribunal has invited the applicant to comment on information under section 359A, and the applicant fails to do so before the time for commenting has passed.
2. It replaces current sections 359C and 424C and also makes provision for the ending of a review without a decision in certain circumstances.
3. Where the failure to give information is by a person other than the applicant, subsection 362C(1) allows the Tribunal to make a decision on the review without taking further action to obtain the information. The Tribunal may not simply end the review, but must (at some time) make a decision.
4. Where the failure to give information, or to comment on information, is by the applicant, subsections 362C(2) and (3) respectively provide that the Tribunal may:
• make a decision on the review without taking further action to obtain the information or comments; or
• end the review without making any decision.
1. New section 362D applies where the applicant fails to comply with a direction given or condition or obligation imposed by the Tribunal under subsection 361(2) or with a direction under section 353A. Subsection 361(2) (inserted by item 148) permits the Tribunal to control appearances before it by imposing conditions on persons appearing or doing certain things, and by directing how a person appearing before it is to do certain things.
2. Where the applicant fails to comply with such a condition or direction, or with a direction under new section 353A, the Tribunal may end the review without making a decision. This is consistent with clause 129 of the ART Bill.
1467. Notice of decision to end review
1. New section 362E provides that where the Tribunal ends the review without making a decision, the Tribunal must notify the applicant and the Secretary in writing that it has done so. The notice must be given within 14 days of the ending of the review by the Tribunal. The notice to the applicant must contain a summary of the effect of new section 362F (dealing with applying to the Tribunal to reinstate a review which has ended without a decision) and new paragraph 362E(3)(a) sets out how the notice is to be given. The notice to the Secretary must be given by one of the methods specified in section 379 (new subsection 362E(4)).
1469. Reinstatement of review
1. New section 362F reflects parts of clause 132 of the ART Bill. New section 362F provides that, where the Tribunal ends the review of a decision to which Part 5 of the Migration Act as amended by this Bill applies without making a decision on the review, the applicant may apply to the Tribunal for reinstatement of the review. Subject to directions under new section 353A, the Tribunal may then reinstate the review and give such directions as to its conduct as the Tribunal thinks appropriate.
2. New subsection 362F(1) provides that the applicant may apply for reinstatement within 14 days of receiving the notice given under new section 362E. This time limit is to ensure that applications for reinstatement are made promptly once the review is ended and the applicant notified.
3. New subsection 362F(3) requires the Tribunal, where it reinstates a review, to notify the applicant and the Secretary of this within the period specified in accordance with section 353A directions. Paragraphs 362F(3)(b) and (c) set out how the notification is to be given.
4. New subsection 362F(4) makes it clear that the Tribunal cannot reinstate a review where the application for reinstatement is made outside the 14-day time limit. It also makes clear that a decision by the Tribunal to not reinstate a review, following an application for it to do so, is reviewable under Part 8 of the Migration Act as a decision of the Tribunal.
1471. Item 161: Sections 363 and 363A
1. This item repeals existing sections 363 and 363A and substitutes new section 363.
1. New section 363 replaces existing subsections 363(1) and 363(5) (dealing with the conduct of review by the MRT), and existing subsections 427(1) and 427(5) (dealing with the conduct of review by the RRT). New section 363 provides that, for the purposes of the review of a decision to which Part 5 of the Migration Act as amended by this Bill applies, the Tribunal may:
• take evidence on oath or affirmation (in accordance with directions made under new section 353A);
• adjourn the review from time to time;
• give information to the applicant (subject to sections 375A and 376 which restrict the disclosure of certain information); and
• give information to the Secretary.
2. In addition, for the purpose of a reviewable general visa decision or a reviewable protection visa decision, the Tribunal may require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination. This reflects the existing powers of the MRT and RRT in current paragraphs 363(1)(d) and 427(1)(d) respectively.
3. The effect of the other subsections of sections 363 and 427, repealed by this item, will be maintained as follows:
• subsections 363(2) and 427(2) (MRT may, and RRT must, combine reviews)—this is a matter which will be dealt with in section 353A directions;
• subsections 363(3) and (4) and 427(3) and (4) (powers of MRT and RRT to issue summons)—dealt with in new section 364A (item 165);
• subsection 427(6) (representation of persons appearing before RRT and examination and cross-examination)—dealt with in section 366A (as amended by items 172 to 174) and section 366D (as amended by item 177); and
• subsection 427(7) (use of interpreters in RRT)—dealt with in section 366C (as amended by item 176).
1473. Item 162: Paragraph 364(1)(c)
1. This item amends paragraph 364(1)(c) by providing that the President or IRD executive member, rather than the Minister, may approve a person (other than a member or a person appointed or engaged under the Public Service Act 1999) to take evidence on oath or affirmation on behalf of the Tribunal. An approved person may only do so where the member presiding at the particular review so authorises the person. Section 364 as amended by this item also replaces existing section 428 (which is the identical provision for the RRT).
1474. Item 163: Subsection 364(4)
1. This item makes a technical amendment of subsection 364(4) to ensure consistency of expression.
1475. Item 164: Subsection 364(5)
1. This item amends subsection 364(5) to omit reference to section 360. This amendment is necessary as a consequence of the repeal of existing section 360 by item 148.
1476. Item 165: After section 364
1. Item 165 inserts new sections 364A and 364B.
1. New section 364A replaces existing subsections 363(3) and (4) (dealing with the MRT’s ability to issue a summons), and existing subsections 427(3) and (4) (dealing with the RRT’s ability to issue a summons). New section 364A provides that, for the purposes of the review of a decision to which Part 5 of the Migration Act as amended by this Bill applies, the Tribunal may summon a person to:
• appear before the Tribunal to give evidence; and/or
• produce to the Tribunal documents or things referred to in the summons that are in the person’s possession or under the person’s control.
2. However, in either of the above cases, the Tribunal must not summon a person unless the person is in Australia and the Tribunal must summon the person in accordance with any requirements prescribed for the purpose (new subsections 364A(2) and (3)).
3. Under new section 364A the Tribunal may also:
• require a person appearing before the Tribunal to give evidence either to take an oath or to make an affirmation; and/or
• administer an oath or affirmation to a person so appearing.
1. New section 364B provides that the review of reviewable protection visa decisions and reviewable protection visa character decisions must be conducted in private. This reflects current section 429 which provides that reviews by the RRT are to be conducted in private (section 429 is repealed by item 202). Reviews of other decisions are generally to be conducted in public (section 365 as amended by items 166 to 168).
1479. Item 166: Subsection 365(1)
1. This item amends subsection 365(1) as a consequence of the insertion of new section 364B, and inserts new subsection 365(1A). New subsection 365(1) provides that the general rule, that reviews of decisions are to be conducted in public, does not apply to the review of reviewable protection visa decisions or reviewable protection visa character decisions. Special provision is made for these decisions in new section 364B, which provides that review of these decisions is to be conducted in private (see item 165). New subsection 365(1A) provides that the general rule regarding reviews taking place in public is subject to subsections (2), (2A) and (3).
2. The note following item 166 alters the heading to section 365, as a consequence of the insertion of new section 364B (item 165).
1480. Item 167: After subsection 365(2)
1. This item inserts new subsection 365(2A), which provides that in circumstances specified in directions under section 353A, the Tribunal must direct that oral evidence is to be taken in private.
1481. Item 168: Subsection 365(4)
1. This item amends subsection 365(4) to provide that the Tribunal’s power to give directions as to who may be present when oral evidence is given, when the Tribunal directs that the evidence is to be given in private, must be exercised in accordance with directions under section 353A. The item also effects a technical amendment of subsection 365(4) as a consequence of the insertion of new subsection 365(2A) (inserted by item 167).
1482. Item 169: Subsection 366(1)
1. This item effects a technical drafting change to subsection 366(1) to ensure consistency of expression.
1483. Item 170: Subsection 366(1)
1. This item effects a technical drafting change to subsection 366(1) to correct an error (the verb is omitted).
1484. Item 171: Subsection 366(2)
1. This item amends subsection 366(2) (which provides that where an applicant gives evidence by telephone or other remote means, the Tribunal must preserve the public nature of the proceedings) to ensure that the subsection applies not only where the entire hearing is in public, but also where part of a hearing is in public.
1485. Item 172: Subsection 366A(2)
1. This item amends subsection 366A(2) so that an assistant to an applicant is entitled to present arguments to the Tribunal, or address the Tribunal, where directions under section 353A so provide. This is in addition to the power of the Tribunal to allow an assistant to present arguments and address the Tribunal where the Tribunal is satisfied that, because of exceptional circumstances, the assistant should be allowed to do so.
2. This item also amends the heading to subsection 366A to better reflect the purpose of the section.
1486. Item 173:
Subsection 366A(3)
1487. Item 174:
At the end of subsection 366A(3)
1. These items amend subsection 366(3). The effect of these amendments is that the general rule in subsection 366(3)—that the applicant is not entitled, while appearing before the Tribunal, to be represented by another person—is subject to directions under new section 353A, which might provide otherwise.
1488. Item 175: Subsection 366B(1)
1. This item repeals subsection 366B(1) and inserts new subsection 366B(1) to ensure consistency of expression, and to provide that the prohibition on persons, other than applicants, being assisted or represented before the Tribunal in the review of decisions to which Part 5 of the Migration Act as amended by this Bill applies, is subject to directions under section 353A, which might provide otherwise.
1489. Item 176: Subsections 366C(1) and (3)
1. This item effects a technical amendment of subsections 366C(1) and (3) to ensure consistency of expression.
1490. Item 177: At the end of section 366D
1. This item amends section 366D to ensure consistency of expression, and to provide that the prohibition on the examination or cross-examination of persons appearing before the Tribunal applies unless directions under section 353A provide otherwise.
2. The item also amends the heading to section 366D consequential upon this change.
1. This item repeals section 367. This section currently applies to the review of bridging visa decisions, where the applicant is in detention because of the decision. The section requires the MRT to decide the review, and notify the applicant, within a prescribed period. The effect of section 367 will be maintained, in new section 366E (making of decision within prescribed period) and new section 368(3) (notification of decision within prescribed period) (item 179).
1492. Item 179: Sections 368 to 369
1. This item repeals sections 368 and 369 and inserts seven new sections dealing with the giving of decisions by the Tribunal, and with the notification and publication of decisions.
1. New section 366E requires the Tribunal to give its decisions on certain reviews within a prescribed time. This applies to decisions relating to bridging visas, where the applicant is in detention because of the decision, and any other decision prescribed by the regulations. The time may be extended by the Tribunal if the applicant agrees to the extension.
2. This provision is similar to current section 367, which provides that the MRT must decide reviews on bridging visa decisions (where the applicant is in detention because of the decision), within the prescribed time or an extended time as agreed to by the applicant.
3. However, new section 366E goes further, by providing that other decisions may also be prescribed as requiring Tribunal decisions within a set period. This ensures that, should the need arise in future for certain other decisions to be made expeditiously, an appropriate regulation may be made.
1494. Giving and notification of decisions
1. New sections 367, 368 and 368A provide a scheme for the giving and notification of decisions by the Tribunal. These sections are intended to ensure that the applicant is made aware of the decision quickly, without the need to wait until the Tribunal has written up its full statement of the decision, with the reasons for the decision, etc. The ‘hand down’ procedure currently followed by the MRT and RRT will no longer apply (sections 368A to 368D and 430A to 430D are repealed—see items 179 and 202). That procedure required those Tribunals to delay informing the applicant of the Tribunal’s decision, often for 14 days after the decision was made, in order to give sufficient time to invite the applicant to the handing down. These new provisions will ensure that applicants can be informed more quickly of the Tribunal’s decision.
2. The Tribunal has a separate obligation, in new section 368A, to give the applicant and the Secretary a written statement which sets out the decision, the reasons for the decision and the evidence on which the decision is based.
1. New subsection 367(1) provides that the Tribunal may give its decision orally or in writing. The decision must be given in accordance with directions under section 353A.
2. Subsection 367(2) provides that if a decision is to be given orally, it must either be given in the presence of the applicant (or the applicant’s representative), or it must be communicated to the applicant at the time it is given by telephone, closed circuit television, or by a means specified in a section 353A direction.
3. Subsection 367(3) provides that an oral decision on a reviewable protection visa decision or a reviewable protection visa character decision must be given in private.
1. New section 368 provides for a copy of a decision given in writing to be given to the applicant. Subsection 368(1) provides that a copy of the decision must be given to the applicant by one of the methods specified in section 379A, unless the applicant is in immigration detention, in which case it must be given by a method prescribed by the regulations.
2. Subsection 368(2) provides that the copy of the decision must be given to the applicant within the time specified in accordance with section 353A directions, unless subsection 368(3) applies.
3. Subsection 368(3) maintains the effect of current subsection 367(1) (repealed by item 178), by providing that where the decision under review is a bridging visa decision, and the applicant is in detention because of the decision, the copy of the decision (where the decision is a written decision) is to be given within the time prescribed by the regulations.
4. New subsection 368(4) allows the Tribunal to extend the time for giving the copy of decision to the applicant, where the applicant agrees.
1. Under new section 368A, the Tribunal has a separate obligation to give the applicant and the Secretary a written statement setting out the decision, the reasons for the decision, the findings on any material questions of fact in relation to the decision, and referring to the evidence on which the findings of fact were based (subsection 368A(1)). New section 368A (which replaces current sections 368 and 430) provides that this statement must be given to the applicant and the Secretary within 14 days of the Tribunal giving its decision (subsection 368A(2)). The time for seeking any judicial review of this decision does not commence until that statement is received (see item 207 which amends section 478). New section 379C and new section 379D (inserted by item 201) provide when the statement is taken to be received by the applicant and by the Secretary respectively.
2. New subsection 368A(2) also requires the Tribunal to return to the Secretary any document, part of a document or thing that the Secretary has provided, and give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.
3. New subsection 368A(3) provides the methods by which the Tribunal must provide the statement to the applicant and Secretary.
1. New section 368B allows the Tribunal to correct obvious errors in the text of its statement of reasons for decision (where it is satisfied that these exist). This is consistent with clause 138 of the ART Bill, which gives the same general power to the Tribunal when reviewing decisions in divisions other than the IRD. Under new subsection 368B(3), the Tribunal’s powers to alter the text of the statement may be exercised by the President, the IRD executive member, or the member who presided at the review to which the statement relates.
2. If the Tribunal alters the text of a statement, then under paragraph 368B(4)(a), the text as altered is taken to be the statement. The Tribunal must give a copy of the altered statement to the applicant and the Secretary by the methods set out in subsection 368B(2). Under paragraph 368B(4)(b), the time for seeking judicial review of the decision under Part 8 of the Migration Act commences when the applicant or Secretary receives the copy of the altered statement.
1. New section 368C deems the Tribunal to have affirmed certain reviewable general character decisions and reviewable protection visa character decisions. The section applies only where the reviewable decision relates to a person who is in the migration zone. The Tribunal is deemed to have affirmed the decision where the Tribunal fails to make a decision on the review within 84 days after the applicant is notified of their right to seek ART review, and has received two copies of the relevant documents, as required by sections 340 and 341. This reflects current subsection 500(6L), which applies the same rule to reviews by the AAT of decisions taken under section 501 (section 500 is repealed by item 217). It also extends the rule to decisions to cancel or to refuse to grant protection visas which rely on Article 1F, 32 or 33(2) of the Refugees Convention. The provision ensures that decisions which turn upon the applicant’s character, where the applicant is in Australia, are made expeditiously.
1. New section 369 replaces existing sections 369 (relating to MRT decisions) and 431 (relating to RRT decisions). New section 369 allows the Chief Executive Officer to publish statements of reasons prepared under subsection 368A(1). This power is subject to any directions under new section 353A and any direction under section 378 (which allows the Tribunal to prohibit or restrict the publication of any evidence or information given to the Tribunal, or the contents of any document produced to the Tribunal).
2. Under new subsection 369(2), certain restrictions apply if the statement relates to a reviewable protection visa decision or reviewable protection visa character decision: the published version must not identify, or be able to be used to identify, the applicant or any relative or dependant of the applicant. These restrictions are designed to protect the identity of persons seeking refugee status.
1501. Item 180: Division 7 of Part 5
1. This item repeals current Division 7 of Part 5 of the Migration Act (the ‘Offences’ Division relating to the MRT), and substitutes a new Division 7 (Offences) to apply to the review by the ART of all decisions to which Part 5 of the Migration Act as amended by this Bill relates. (New section 337A, inserted by item 71, sets out these decisions.) The new Division 7 also replaces current Division 6 of Part 7 of the Migration Act (the ‘Offences’ Division relating to the RRT), which is repealed by item 202.
2. The new Division 7 of Part 5 consists of seven new sections, which broadly combine the effect of the existing offence provisions relating to the MRT and RRT in Part 5 and Part 7 of the Migration Act, with some parts of the ‘Offence’ Division of the ART Bill (Division 4 of Part 9 of that Bill).
3. The custodial penalties specified for the offences in new Division 7 of Part 5 are consistent with the custodial penalties specified for the relevant offences in existing Division 7 of Part 5 and Division 6 of Part 7 of the Migration Act. However, the offences in new Division 7 of Part 5 also specify pecuniary penalties as an alternative to imprisonment. The penalties specified are maximum penalties: see section 4D of the Crimes Act 1914.
1. New section 370 replaces existing section 370 and subsection 371(2) (dealing with the MRT) and existing section 432 and subsection 433(2) (dealing with the RRT). Under new subsections 370(1) and (2) it is an offence to refuse or fail to comply with a summons under Part 5 of the Migration Act as amended by this Bill (see for example new section 364A inserted by item 165) to appear before the Tribunal to give evidence, or, subject to section 375, to give the Tribunal a document or other thing. Subject to section 375, it is also an offence under new subsection 370(3) to refuse or fail to comply with a requirement (other than a summons) under amended Part 5 to give the Tribunal a document or a thing.
2. New section 370 is broadly similar to clauses 145(1) and (2) of the ART Bill (failure to comply with summons). The maximum penalty for each of the offences in new section 370 is 30 penalty units or imprisonment for 6 months. (A penalty unit is currently $110: see section 4AA of the Crimes Act 1914.)
1. New section 371 replaces existing subsection 371(1) (dealing with the MRT) and subsection 433(1) (dealing with the RRT). It is an offence under new subsections 371(1) and (2) for a person, appearing before the Tribunal to give evidence under Part 5 of the Migration Act as amended by this Bill, to:
• refuse or fail to take an oath / make an affirmation when appearing to give evidence, required to be given under new Part 5 on oath or affirmation; or
• refuse or fail to answer a question that he or she is required by the Tribunal to answer (subject to section 375 which restricts disclosure of certain information).
2. New section 371 is broadly similar to clauses 146(1) and (2) of the ART Bill (refusal to take oath etc. or to answer questions). The maximum penalty for each of the offences in new section 371 is 30 penalty units or imprisonment for 6 months. (A penalty unit is currently $110: see section 4AA of the Crimes Act 1914.)
1. New section 372 replaces existing subsection 371(3) (dealing with the MRT) and subsection 433(3) (dealing with the RRT). It is an offence under new section 372 to give evidence to the Tribunal, under Part 5 of the Migration Act as amended by this Bill, that the person knows is false or misleading in a material particular.
2. New section 372 is broadly similar to clause 147 of the ART Bill (false or misleading evidence). The maximum penalty for the offence in new section 372 is 60 penalty units or imprisonment for 12 months. (A penalty unit is currently $110: see section 4AA of the Crimes Act 1914.)
1. New section 372A replaces existing section 372 (dealing with the MRT) and section 434 (dealing with the RRT). It is an offence under new section 372A to obstruct or hinder the Tribunal or a member in the exercise of powers or performance of functions under the Migration Act.
2. New section 372A is broadly similar to clause 149 of the ART Bill (contempt of Tribunal). The maximum penalty for the offence in new section 372 is 60 penalty units or imprisonment for 12 months. (A penalty unit is currently $110: see section 4AA of the Crimes Act 1914.)
1. New section 372B replaces existing section 377 (dealing with the MRT) and section 439 (dealing with the RRT). The new section provides special protection for information described in subsection 372B(2): that is, information or a document concerning a person, which is obtained by a person to whom the section applies, in the course of performing functions or exercising powers under the Migration Act. New section 372B applies to a person who holds or acts in, or has held or acted in, a specified type of office or has exercised specific powers or functions.
2. It is an offence under new subsection 372B(3), for a person to whom the section applies to record, or divulge or communicate to any person, information described in subsection (2)—unless the recording, divulging or communicating of the information was for the purposes of the Migration Act or for the purposes of or connected with the performance of a function or duty or the exercise of a power under that Act. This is the case whether the divulging or communicating of the information was direct or indirect: see new subsection 372B(4).
3. In addition, under new subsection (5), a person to whom the section applies must not be required to:
• produce any document (under new subsection (8) ‘produce’ has its natural meaning and also includes ‘permit access to’); or
• divulge or communicate any information described in subsection (2)
to a court, tribunal or any other authority or person (other than the Ombudsman) having power to require the production of documents or the answering of questions, except where it is necessary to do so for the purposes of carrying into effect the provisions of the Migration Act.
4. New subsection (6) provides, consistently with existing sections 377 and 439, that nothing in new section 372C affects a person’s rights under the Freedom of Information Act 1982. In addition, new paragraph 372B(5)(c) clarifies that new subsection (5) does not restrict the powers of the Ombudsman to require production of documents or the answering of questions. This is an additional safeguard over and above the provisions of existing sections 377 and 439.
5. The persons to whom the section applies are the same as in existing sections 377 and 439 (members, acting members, persons providing interpreting services in connection with a review), except that the term ‘officer of the Tribunal’ is replaced with a reference to ‘the Chief Executive Officer, staff, or a consultant’. In addition, new paragraph 372B(1)(e) provides that a person who is exercising powers under subsection 364(1) (which provides that the power of the Tribunal to take evidence on oath or affirmation for the purpose of a review may be exercised on behalf of the Tribunal by specified persons) is also a person to whom new section 372B applies.
6. New section 372B is broadly similar to clause 151 of the ART Bill. The maximum penalty for the offence in new subsection 372B(3) is 120 penalty units or imprisonment for 2 years. (A penalty unit is currently $110: see section 4AA of the Crimes Act 1914.)
7. New subsection 372B(7), which replaces current subsection 377(7) and subsection 439(7), states that a person who is providing interpreting services in connection with a review by the Tribunal is taken to be performing a function under the Migration Act.
1. New section 372C replaces existing subsection 378(3) (dealing with the MRT) and subsection 440(3) (dealing with the RRT). It is an offence under new section 372C for a person to refuse or fail to comply with any direction given by the Tribunal under subsection 378(1) that is applicable to the person.
2. New section 372C is broadly similar to clause 148 of the ART Bill (failure to comply with confidentiality direction). The maximum penalty for the offence in new section 372C is 120 penalty units or imprisonment for 2 years. (A penalty unit is currently $110: see section 4AA of the Crimes Act 1914.)
1. New section 372D applies Chapter 2 of the Criminal Code, which sets out general principles of criminal responsibility, to offences against new Division 7 of Part 5. This section is similar to clause 150 of the ART Bill.
1509. Item 181: Sections 373 and 374
1. Item 181 repeals sections 373 and 374, and substitutes new sections 373, 373A, and 374. New section 373 (legal protection and liabilities of members and other persons) and new section 374 (fees for witnesses) replace existing sections 373, 374, 435 and 436. New section 373A (applicants to bear their own costs) is an additional provision modelled on clause 155 of the ART Bill.
1. New section 373 replaces existing section 373 (dealing with the MRT) and section 435 (dealing with the RRT). The existing sections provide, in respect of review by the MRT or RRT as applicable, that:
• a member has, in the performance of his or her duties as a member, the same protection and immunity as a member of the AAT; and
• a person summoned to attend, or appearing, before the relevant Tribunal to give evidence has the same protection, and is (in addition to the penalties provided by existing Part 5 or 7 as applicable) subject to the same liabilities, as a witness in proceedings in the AAT.
2. New section 373 is modelled on clause 144 of the ART Bill. The wording of the new section reflects the replacement of the AAT with the ART. It provides for protection (and liabilities) equivalent to those applicable in the High Court (rather than the AAT) for the persons mentioned in existing sections 373 and 435. In addition to these persons, new section 373 also extends this protection (and liabilities) to:
• a person exercising powers under subsection 364(1);
• a person giving documents or things to the Tribunal;
• a person appearing at an interview to respond to an invitation to give information or comments to the Tribunal under section 359 or 359A;
• a person attending such an interview to represent or otherwise assist an applicant or other person; and
• a person appearing before the Tribunal to represent or otherwise assist an applicant or other person involved in the review.
1. New section 373A provides that an applicant for review of a decision to which Part 5 of the Migration Act as amended by this Bill applies must bear his or her own costs. This new section is similar to clause 155 of the ART Bill.
1. New section 374 replaces existing section 374 (dealing with the MRT) and section 436 (dealing with the RRT). The existing sections provide, in respect of review by the MRT or RRT as applicable, that:
• a person, other than the applicant, summoned to appear before the Tribunal to give evidence is entitled to be paid, in respect of his or her attendance, fees and allowances for expenses (fixed by the regulations); and
• the fees and allowances must be paid by the applicant if the applicant notifies the Tribunal that he or she wants the Tribunal to obtain evidence from the person, or by the Commonwealth in any other case.
2. New section 374 is modelled on clause 153 of the ART Bill. In addition to the provisions outlined above, new subsection 374(4) provides that the fees and allowances payable by the applicant to a person summoned at the applicant’s request are recoverable by that person as a debt due to him or her from the applicant. As an alternative, new subsection 374(3) provides that the Tribunal may direct that the fees and allowances of a person summoned at the request of an applicant be paid by the Commonwealth, in whole or in part.
1. This item effects a technical drafting change to section 375 to ensure consistency of expression.
1514. Item 183: At the end of
paragraph 375A(1)(b)
1515. Item 184:
Subsection 376(2)
1516. Item 185:
Paragraph 376(2)(a)
1. These three items effect technical drafting changes to paragraphs 375A(1)(b) and 376(2)(a) and subsection 376(2) to ensure consistency of expression.
1517. Item 186: Paragraph 376(3)(b)
1. This item amends paragraph 376(3)(b), which deals with the persons to whom the Tribunal may disclose documents or information in respect of which the Minister has made a certification under section 376. As section 376 currently stands, the MRT may make disclosure to the applicant or to any other person who has given oral or written evidence to the MRT. This item omits the reference to other persons who have given oral or written evidence to the MRT, ensuring that the Tribunal will only be able to disclose such documents or information to the applicant.
1518. Item 187: At the end of section 376
1. This item adds new subsection 376(4) to section 376. New subsection 376(4) provides that, in respect of the review of a reviewable protection visa decision or a reviewable protection visa character decision, where the Tribunal discloses a document or information to an applicant under subsection 376(3), the Tribunal must make a direction under section 378. Section 378 enables the Tribunal to make directions prohibiting or restricting the publication of any evidence or information given to the Tribunal, or the contents of any document produced to the Tribunal. This amendment will ensure that the identity of persons seeking refugee status is protected, consistently with existing subsection 438(4). (Existing subsection 438(4) (repealed by item 202) requires the RRT to give a direction under section 440 in relation to information disclosed to the applicant under subsection 438(3)).
1. This item repeals section 377. That section makes it an offence for certain persons connected with the MRT to make a record of, or divulge, information obtained while performing duties or exercising powers under the Act, unless the person does so for the purposes of the Act or for the performance of a duty, function or power under the Act. The full effect of section 377 has been maintained in new section 372B (item 180). The relocation of section 377 to section 372B will place this provision together with all other Part 5 offence provisions.
1520. Item 189: Subsection 378(1)
1. This item effects a technical drafting change to subsection 378(1) to ensure consistency of expression.
1521. Item 190: Subsection 378(1)
1. This item amends subsection 378(1) by inserting the words ‘or otherwise disclosed’ after ‘published’ (wherever occurring). Subsection 378(1) allows the Tribunal to prohibit or restrict the publication of any evidence or information given, or the contents of any document produced, to the Tribunal. The amendment will ensure that it is not only publication, but any form of disclosure, which may be prohibited or restricted.
1522. Item 191: After subsection 378(1)
1. This item inserts new subsection 378(1A), to clarify that the Tribunal may, at any time revoke, vary or substitute a direction given under subsection 378(1) (prohibiting or restricting the publication of evidence or information given, or the contents of documents produced, to the Tribunal).
1523. Item 192: Subsection 378(2)
1. This item amends subsection 378(2) by inserting the words ‘or disclosure’ after ‘publication’. This change is consequential upon the amendment made by item 190, which allows the Tribunal to prohibit or restrict not just the publication of any evidence or information given, or the contents of any document produced, to the Tribunal, but also to prohibit or restrict any disclosure of such material.
1524. Item 193: Paragraph 378(2)(a)
1. Existing paragraph 378(2)(a) provides that a direction by the MRT prohibiting the publication of evidence, information, or the contents of a document, does not excuse the Tribunal from its obligations under existing section 368. Existing section 368 requires the MRT to prepare a statement of reasons for its decisions on review. The obligation on the IRD of the ART to prepare a statement of reasons for its decisions will, on commencement of this Act, be contained in section 368A rather than section 368 (item 179). Paragraph 378(2)(a) therefore requires amendment to reflect this new arrangement.
1525. Item 194: Subsection 378(3)
1. This item repeals existing subsection 378(3). Existing subsection 378(3) makes it an offence for any person to contravene a direction given by the Tribunal under subsection 368(3). That provision allows the Tribunal to make a direction prohibiting or restricting the publication or disclosure of any evidence or information given to it, or the contents of any document produced to it. The effect of subsection 378(3) is maintained in the Act, but is moved to new section 372C (see item 180). This move will ensure that the offence of contravening a publication direction will be placed together with all other Part 5 offence provisions.
1526. Item 195: After section 378
1. This item inserts new section 378A. This new section provides for the delegation of the President’s and IRD executive member’s powers and functions under Part 5.
1. Subsection 378A(1) provides that the President may delegate all or any of his or her powers or functions under Part 5 to an IRD member, the Chief Executive Officer, or a member of staff of the Tribunal. (The expression ‘staff’ is defined in section 337 to have the same meaning as in the ART Bill.) The delegation must be in writing.
2. Subsection 378A(2) provides that the IRD executive member may delegate all or any of his or her powers or functions under Part 5 to an IRD member, the Chief Executive Officer, or a member of staff of the Tribunal. The delegation must be in writing.
3. However, subsection 378A(3) restricts the delegation powers of both the President and the IRD executive member by providing that neither of them may delegate their powers to give directions under new section 353A.
4. To avoid doubt, subsection 378A(4) provides that the powers and functions that the President or IRD executive member may delegate do not include powers and functions that either has in his or her capacity as a member of the Tribunal constituted under Division 4.
1528. Item 196: Subsection 379(1)
1. This item effects a technical drafting change to subsection 379(1) by omitting the words ‘Sittings of the Tribunal shall’ and substituting the words ‘Reviews by the Tribunal of decisions to which this Part applies, are to’. The note following this item also alters the heading to section 379 to reflect this wording change.
1529. Item 197:
Subsection 379(2)
1530. Item 198:
Subsection 379(2)
1531. Item 199:
Subsection 379(2)
1. These items effect technical drafting changes to subsection 379(2) to ensure consistency of expression; and omit the superfluous words ‘sit and’ and ‘sitting and’ from the subsection.
1. This item repeals existing section 379A (methods of dispatch of certain documents). The giving and receiving of review documents is dealt with in new Division 9 of Part 5, inserted by item 201.
1533. Item 201: Division 9 of Part 5
1. This item repeals the existing Division 9 of Part 5 to the Migration Act and replaces it with a new Division 9 that contains rules that are designed to provide certainty when the Tribunal gives and receives documents.
1. New section 379AA authorises the Tribunal to use any method that it considers to be appropriate in order to give a document to a person in circumstances where the method for giving the document has not been specified by the Act or prescribed by the regulations. This new section does not prevent the Tribunal from opting to use one of the methods specified in new section 379A or 379B, or which may have been prescribed by the regulations.
2. While only certain documents (notices, invitations, written statements etc.) are required to be given by one of the methods specified in section 379A or 379B, other documents might be given in these ways and, if they are, then the provisions of new sections 379C and 379D may be invoked to determine the time when the document is taken to have been received.
1. New section 379A specifies alternative methods that control the ways in which the Tribunal is authorised to give documents to any person (other than the Secretary) for the purposes of new Part 5. One of these methods must be used whenever a provision in new Part 5 requires the document to be given in conformity with this section, but the Tribunal is left free to determine which method to use in any given case.
2. A Tribunal member, staff or consultant is authorised to give documents in any of four alternative ways, namely:
• by handing the document to the recipient (subsection (2)); or
• by handing the document to another person who appears to be at least 16 years of age and who appears to be living at the last residential address that was provided by the intended recipient, or who appears to be working at the last business address that was provided by the intended recipient (subsection (3)); or
• by dating the document and then sending it to the intended recipient by prepaid post, or by any other prepaid method (that is, courier service, etc.), within 3 working days; the document may be sent to any of 3 addresses provided by the recipient, namely the most recent address for service of review-related documents, or the recipient’s last notified residential address for the purposes of the review, or the recipient’s last notified business address for the purposes of the review (subsection (4)); or
• by fax, e-mail, or other electronic means to the most recently provided fax number, e-mail address or other electronic address that the intended recipient provided for the purposes of the review (subsection (5)); these methods are not intended to operate independently: for example, the Tribunal is authorised to use the most recent fax number even though it has been given an even more recent e-mail address.
1. New section 379B specifies alternative methods that control the ways in which the Tribunal is authorised to give documents to the Secretary for the purposes of new Part 5. One of these methods must be used where a provision in new Part 5 requires the document to be given in conformity with this section, but the Tribunal is left free to determine which method to use. The methods are the same as those for the giving of documents to a person (see new section 379A) except that there is no need for a separate provision dealing with giving documents to a person at the Secretary’s notified address.
1. New section 379C provides rules for determining the time when a person is taken to have received a document. The section incorporates the deemed receipt elements of current section 379A, together with regulation 5.03 of the Migration Regulations 1994.
2. The rules will only apply if the Tribunal uses one of the methods specified in new section 379A, and includes circumstances where the Tribunal gives a document under new section 379AA (where no method has been specified in the legislation) and the Tribunal chooses to use one of the methods in new section 379A.
3. The following rules determine the time when a document that the Tribunal has given under new section 379A is taken to have been received:
• where the document is given by hand under new subsection 379A(2), the document is taken to be received at the time that it is handed to the person specified in new subsection 379A(2);
• where the document is given by hand under new subsection 379A(3), the document is taken to be received at the time that it is handed to the person specified in new subsection 379A(3);
• where the document is given by post or other means under new subsection 379A(4), the document is taken to be received 7 working days after the date of the document if the document is sent to an address in Australia, or 21 days after the date of the document in all other cases.
• where the document is given by fax, e-mail or other electronic means under new subsection 379A(5), the document is taken to be received at the end of the day on which the document was transmitted.
1. New section 379D provides rules for determining the time when the Secretary is taken to have received a document.
2. The rules will only apply if the Tribunal uses one of the methods specified in new section 379B, and includes circumstances where the Tribunal gives a document under new section 379AA (where no method has been specified in the legislation) and the Tribunal chooses to use new section 379B. The rules are the same as those for determining the time when a document is taken to have been given to a person (see new section 379C), except that there is no need for a separate provision dealing with giving documents to a person at the Secretary’s notified address.
1. New section 379E authorises the Tribunal to give a copy of any document to a person instead of the original copy.
1. New section 379F specifies the way in which a person must give documents to the Tribunal, and is modelled on similar provisions in the ART Bill (see clauses 157 and 158). Two methods are contemplated, namely:
• by giving the document directly to the Chief Executive Officer of the Tribunal or to Registry staff; or
• by following a method set out in directions that have been given under amended section 353A (which permits the Minister, the Principal Member, or the executive member of the IRD to give directions).
1. New subsection 379G(1) authorises the review applicant to notify the Tribunal in writing that the applicant has authorised another person (the ‘authorised recipient’) to receive documents in connection with the review, or to do things that include the receiving of such documents. The Tribunal must give such documents to the authorised recipient. Subsection (2) provides that the Tribunal discharges its obligation to give a document to the applicant if it gives the document to the authorised recipient. Subsection (3) permits the applicant to vary or withdraw the authorisation, and prevents the applicant from having more than one authorised recipient at the same time. Subsection (4) permits the Tribunal to communicate directly with the applicant, but requires the Tribunal give the authorised recipient a notice of any such direct communication. Subsection (5) removes a possible source of confusion by providing that new section 379G does not apply to the giving of documents directly to the applicant when the applicant is appearing before the Tribunal.
1. This item repeals existing Parts 6 and 7 of the Migration Act. Part 6 and Part 7 are exclusively concerned with the operation of the MRT and the RRT respectively. Both tribunals are abolished at the commencement of the ART and the existing provisions will be obsolete.
1543. Item 203: Paragraphs 475(1)(a) and (b)
1. Subsection 475(1) of the Migration Act specifies those administrative decisions which are judicially reviewable by the Federal Court. This item amends the subsection to substitute a reference to the ART for the existing references to the MRT and RRT.
1544. Item 204: Paragraphs 475(2)(c) and (d)
1. This item amends subsection 475(2) of the Migration Act which specifies those administrative decisions which are not judicially reviewable under Part 8 of the Migration Act. The existing references to MRT-reviewable decisions and RRT reviewable decisions are repealed, and new paragraphs (c) and (d) are inserted. New paragraph 475(2)(c), which replaces repealed paragraphs (c) and (d), excludes judicial review of the primary merits decision. This ensures that only the decision of the Tribunal will be reviewable for legal error by the Federal Court. New paragraph 475(2)(d) provides that there is no judicial review of a Tribunal decision to end a review without making a decision.
1545. Item 205:
Paragraph 475(2)(e)
1546. Item 206:
Paragraphs 475(2)(f) and (g)
1. Existing paragraphs 475(2)(f) and (g), which are repealed, provided that referrals of matters to the AAT by the MRT or RRT, for reconsideration by a multi-member panel, are not reviewable under Part 8. The referral mechanism was never used by the MRT, and only very infrequently by the RRT. The new IRD will be empowered to sit as a multi-member panel, so there is no point in retaining a mechanism that would permit referring a matter to a less specialised division of the ART. The referral mechanism has, therefore, not been continued in the ART, and paragraphs 475(2)(f) and (g) are therefore repealed.
1547. Item 207: Paragraph 478(1)(b)
1. Paragraph 478(1)(b) of the Migration Act, which is repealed, currently imposes a strict time limit within which an application must be made to the Federal Court for the judicial review of a decision. New paragraph (b) contains more detailed rules. The existing 28-day limit for the making a judicial review application is retained in all cases, but the new provision is designed to achieve greater certainty in determining when the time period for making a judicial review application commences.
2. In particular, this item inserts a note which points out the three new sections that detail when a person is taken to have received a document which has been given by one of the prescribed methods in new section 379A or 379B. The written statement of the decision to which subparagraphs 478(1)(b)(i) and (ii) refer (that is, the written statement prepared under section 368A) is one such document that is required to be given by one of the prescribed methods in new section 379A or 379B.
1548. Item 208:
Paragraph 479(a)
1549. Item 209:
Paragraph 479(a)
1550. Item 210:
Paragraph 480(a)
1551. Item 211:
Paragraph 480(a)
1. These items are minor and consequential in nature. They operate together to amend existing paragraphs 479(a) and 480(a) so that the existing indirect references to the MRT and RRT are repealed and a direct reference to the ART is inserted.
1552. Item 212: Paragraph 481(1)(b)
1. Existing subsection 481(1) empowers the Federal Court to make any of the orders that are specified in that subsection. The amended paragraph 481(1)(b) will give the Federal Court the further power to refer the matter back to the Tribunal, subject to such directions as the court thinks fit.
1553. Item 213: After subsection 481(1)
1. This item inserts a new subsection (1A) into section 481. The new subsection provides that where the Federal Court refers a matter back to the ART for further consideration, the ART is not required to constitute itself in the same way to consider the referred matter.
1554. Item 214: Subsection 485(2)
1. The AAT Act is repealed by clause 4 of this Bill. This item repeals existing subsection 485(2) of the Migration Act which deals with the jurisdiction of the Federal Court with respect to matters under the AAT Act.
1555. Item 215: At the end of subsection 488(2)
1. Section 488 of the Migration Act makes it an offence for a person to access the Department of Immigration and Multicultural Affairs’ computer databases of visa and movement information unless the person has been authorised to do so under subsection 488(2). This item adds a new category of authorised user, namely members of the ART, the Chief Executive Officer and staff of the ART, and ART consultants, and then only for the purpose of reviewing a decision under the Migration Act.
1556. Item 216: After section 494
1. New section 494A authorises the Minister to use any method that he or she considers to be appropriate in order to give a document to a person in circumstances where the method for giving the document has not been specified by the Act or prescribed by the regulations. This new section does not prevent the Minister from opting to use one of the methods specified in new section 494B or which may have been prescribed by the regulations and, where the Minister does so, then the provisions of new section 494C may be invoked to determine when the document is taken to have been received.
1. New section 494A specifies alternative methods that control the ways in which the Minister is authorised to give documents to any person for the purposes of the Migration Act. One of these methods must be used whenever a provision in the Migration Act requires the document to be given in conformity with this section, but the Minister is left free to determine which method to use in any given case.
2. This provision mirrors the methods in new section 379A by which the Tribunal gives documents.
3. The Minister is authorised to give documents in any of four alternative ways, namely:
• by handing the document to the recipient (subsection (2)); or
• by handing the document to another person who appears to be at least 16 years of age and who appears to be living at the last residential address that was provided by the intended recipient, or who appears to be working at the last business address that was provided by the intended recipient (subsection (3)); or
• by dating the document and then sending it to the intended recipient by prepaid post, or by any other prepaid method, within 3 working days; the document may be sent to any of 3 addresses provided by the recipient, namely the most recent address for service of review-related documents, or the recipient’s last notified residential address for the purposes of the review, or the recipient’s last notified business address for the purposes of the review (subsection (4)); or
• by fax, e-mail, or other electronic means to the most recently provided fax number, e-mail address or other electronic address that the intended recipient provided for the purposes of the review (subsection (5)); these methods are not intended to operate independently: for example, the Tribunal is authorised to use the most recent fax number even though it has been given an even more recent e-mail address.
1. New section 494C provides rules for determining the time when a person is taken to have received a document. The section incorporates the deemed receipt elements of current subsections 53(3) and (6), together with regulation 5.03 of the Migration Regulations 1994.
2. These rules will only apply if the Minister uses one of the methods specified in new section 494B, and includes circumstances where the Minister gives a document under new section 494B (where no method has been specified in the legislation) and the Minister chooses to use one of the methods in new section 494B.
3. The following rules determine the time when a document that the Minister has given under new section 494B is taken to have been received:
• where the document is given by hand under new subsection 494B(2), the document is taken to be received at the time that it is handed to the person specified in new subsection 494B(2);
• where the document is given by hand under new subsection 494B(3), the document is taken to be received at the time that it is handed to the person specified in new subsection 494B(3);
• where the document is given by post or other means under new subsection 494B(4), the document is taken to be received 7 working days after the date of the document if the document is sent to an address in Australia, or 21 days after the date of the document in all other cases.
• where the document is given by fax, e-mail or other electronic means under new subsection 494B(5), the document is taken to be received at the end of the day on which the document was transmitted.
1. New subsection 494D(1) authorises a person (the first person) to notify the Minister in writing that the first person has authorised another person (the authorised recipient) to receive documents in connection with matters arising under the Migration Act, or to do things that include the receiving of such documents. The Minister must give such documents to the authorised recipient. Subsection (2) provides that the Minister discharges his or her obligation to give a document to the first person if the Minister gives the document to the authorised recipient. Subsection (3) permits the first person to vary or withdraw the authorisation, and prevents the first person from having more than one authorised recipient at the same time. Subsection (4) permits the Minister to communicate directly with the first person, but requires the Minister give the authorised recipient a notice of any such direct communication.
1. This item repeals existing section 500. This Bill moves the substantive provisions of existing section 500 into the new Part 5 so as to locate all provisions dealing with merits review in one Part. There is the ability to retain the adversarial processes used in the review of section 500 decisions in the new Part 5 by the use of section 353A directions.
2. The substantive provisions of section 500 are moved into the new Part 5 as follows:
• paragraph 500(1)(a) (decisions under section 200 to order deportation of non-citizens reviewable by AAT): new section 338D (see item 86) makes such decisions ‘reviewable deportation decisions’ reviewable by the ART;
• paragraph 500(1)(b) (decisions of delegates refusing to grant or cancelling visas under section 501 reviewable by AAT): new section 338B (see item 86) makes such decisions ‘reviewable general character decisions’ reviewable by the ART; decisions under section 501 relating to protection visas are ‘reviewable protection visa character decisions’ under section 338C (see item 86);
• paragraph 500(1)(c) (decisions refusing to grant, or cancelling, protection visas relying on one or more of Articles 1F, 32 or 33(2) of the Refugees Convention, reviewable by AAT): new section 338C (see item 86) makes such decisions ‘reviewable protection visa character decisions’ reviewable by the ART;
• subsection 500(2) (standing to make an application for review of a deportation decision): new subsection 344(5) (see item 90);
• subsection 500(3) (standing to make an application for review of a character decision made under section 501): new subsection 344(3) (see item 90);
• subsection 500(4) (decisions which are not currently reviewable under existing Parts 5 or 7): not needed, as Part 7 is repealed, and the review of such decisions will take place under new Part 5;
• subsection 500(5) (constitution of Tribunal): not needed, as the ART does not have presidential members, and subsection 354(1) provides a general presumption in favour of single member Tribunals (see items 107 to 109);
• subsection 500(6) (stay orders): no corresponding provision, as the IRD of the ART has no power to grant stays;
• subsection 500(6A) (excludes section 28 of AAT Act (statement of reasons) from review of certain section 501 decisions): not needed, as the AAT Act is repealed by this Bill and requirements for providing statements of reasons will now be provided for by new section 340 (see item 88);
• subsection 500(6B) (time limits for lodging applications): new subsection 347(5) (see item 90);
• subsection 500(6C) (documents to accompany applications for review of character decisions): new subsection 346(2) (see item 90);
• subsection 500(6D) (excludes section 37 of AAT Act (decision maker’s duty to provide documents) from review of section 501 decisions): not needed as AAT Act is repealed by this Bill and the duty to provide relevant documents is now provided for by section 347C (see item 90);
• subsection 500(6E) (AAT to notify Minister of review applications under section 501): new subsection 347B(2) (see item 90);
• subsection 500(6F) (time limits for lodgement of documents by Minister): new subsection 347C(2) (see item 90);
• subsection 500(6G) (Minister to be notified of application for review at least 14 days before Tribunal holds hearing or makes decision): new section 348A provides when review can begin (see item 93);
• subsection 500(6H) (AAT cannot have regard to information presented orally unless contained in written statement to Secretary at least 2 business days before): no corresponding provision as this provision is no longer appropriate in the ART context where oral hearings are at the discretion of the Tribunal; if such a requirement is to be retained for certain cases, this can be done by way of section 353A directions;
• subsection 500(6J) (AAT cannot have regard to documents unless a copy of the document submitted to Secretary at least 2 business days before): no corresponding provision as this provision is no longer appropriate in the ART context where oral hearings are at the discretion of the Tribunal; if such a requirement is to be retained for certain cases, this can be done by way of section 353A directions;
• subsection 500(6K) (AAT may require Minister to lodge relevant documents): new section 359C (see item 148);
• subsection 500(6L) (AAT taken to have affirmed decision if no decision made within 8 days after person notified of the decision): new section 368C (see item 179);
• subsections 500(7) and (8) (definitions): not needed.
1562. Item 218: After subsection 501(2)
1. This item inserts a note to the effect that a decision of a Ministerial delegate under subsections 501(1) or (2) is reviewable by the ART as a reviewable general character decision.
1563. Item 219: Paragraph 501A(1)(b)
1. This item changes the reference to the AAT to a reference to the ART.
1564. Item 220: Subsection 501A(7)
1. This item repeals existing subsection 501A(7). Existing subsection 501A(7) provides that a decision under section 501A (which must be made by the Minister personally) is not reviewable under the existing Part 5 (MRT) or Part 7 (RRT). Such decisions will now be included in the new definition in section 337 of ‘non-reviewable Minister’s decisions’ (item 58), and are not reviewable under new Part 5 (see items 74 and 86).
1565. Item 221: Subsection 501B(4)
1. This item repeals existing subsection 501B(4). Existing subsection 501B(4) provides that a decision under section 501B (which must be made by the Minister personally) is not reviewable under the existing Part 5 (MRT) or Part 7 (RRT). Such decisions will now be included in the new definition in section 337 of ‘non-reviewable Minister’s decisions’ (item 58), and are not reviewable under new Part 5 (see items 74 and 86).
1566. Item 222: Subsection 501B(5)
1. This item changes the reference to the AAT to a reference to the ART.
1567. Item 223: Subsection 501C(11)
1. This item effects a minor technical drafting change that reflects the amalgamation of existing Part 5 and Part 7 of the Migration Act into new Part 5.
1568. Item 224: Subsection 501F(5)
1. This item repeals existing subsection 501F(5). Existing subsection 501F(5) ensures that a decision taken to have been made under section 501F (consequential cancellation and refusal of other visas and visa applications) is not reviewable under the existing Part 5 (MRT) or Part 7 (RRT). Such decisions will now be included in the new definition in section 337 of ‘non-reviewable Minister’s decisions’ (item 58), and are not reviewable under new Part 5 (see items 74 and 86).
1569. Item 225: Paragraph 501G(1)(e)
1. This item effects a technical drafting change to paragraph 501(1)(e) consequential upon the repeal of paragraph 501G(1)(f) by item 226.
1570. Item 226: Paragraph 501G(1)(f)
1. This item repeals existing paragraph 501G(1)(f) which specifies certain matters which must be included in a decision record where a visa has been refused or cancelled on character grounds under subsection 501(1) or (2). This function is now performed by section 340 (item 88).
1571. Item 227: At the end of subsection 501G(1)
1. This item inserts a new note referring to the new notification provisions at sections 340 and 341 which, when taken together, have the same effect as existing paragraph 501G(1)(f) and subsection 501G(2).
1572. Item 228: Subsection 501G(2)
1. This item repeals existing subsection 501G(2) which requires the Minister, when notifying of a decision under section 501, to give two copies of all relevant documents to the person to whom the decision relates, where that person is in the migration zone. New section 341 (item 88) will impose the same requirement.
1573. Item 229: Subsection 501H(2)
1. This item repeals existing subsection 501H(2) which simplified existing Part 5 by ensuring that any reference to section 501 also included sections 501A, 501B, 501C and 501F (so that none of these decisions were reviewable by the MRT under Part 5). While decisions of a delegate under section 501 are now reviewable under Part 5 (new sections 338B and 338C, item 86), decisions under sections 501A, 501B, 501C and 501F are expressly excluded from Part 5 review, as ‘non-reviewable Minister’s decisions’ (see items 58, 74 and 86).
2. This item also inserts a note after section 501H amending the heading to that section to reflect the repeal of subsection 501H(2).
1574. Item 230: At the end of section 502
1. Existing section 502 permits the Minister (but not a delegate) to issue a certificate that prevents the Tribunal from reviewing specified decisions. This item inserts new subsection 502(4) to clarify that the decision to issue such a certificate is not itself a reviewable decision.
1575. Item 231: At the end of
subparagraph 504(1)(a)(ii)
1576. Item 232:
At the end of
subparagraph 504(1)(a)(iv)
1577. Item 233:
At the end of
paragraph 504(1)(b)
1578. Item 234:
At the end of
subparagraph 504(1)(c)(iii)
1579. Item 235:
At the end of
paragraph 504(1)(d)
1580. Item 236:
At the end of
subparagraph 504(1)(e)(i)
1581. Item 237:
At the end of
paragraph 504(1)(e)
1582. Item 238:
At the end of
paragraph 504(1)(f)
1583. Item 239:
At the end of
paragraph 504(1)(g)
1584. Item 240:
At the end of
paragraph 504(1)(h)
1585. Item 241:
At the end of paragraph 504(1)(i)
1. Section 504 authorises the Governor-General to make regulations prescribing all matters which are required or permitted to be prescribed by the Migration Act, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Migration Act. These 11 items make minor stylistic adjustments to the wording of subsection 504(1) to make it easier to read. They do not affect the existing meaning in any way.
1586. Item 242: At the end of subsection 504(1)
1. This item inserts a new paragraph at the end of subsection 504(1) and will authorise the making of regulations for summoning a person for the purpose of reviewing those decisions to which new Part 5 of the Act applies.
1588. Item 243: Subsection 52A(1)
1. This item changes the reference to the AAT to a reference to the ART.
1589. Item 244: After subsection 52A(2)
1. This item provides that all merits review of decisions under the Australian Citizenship Act is to take place in the Commercial and General Division of the ART rather than the IRD. As the decisions are left out of the new Part 5 of the Migration Act, the review of the decisions becomes subject to the ART procedures in the ART Bill (that is, Parts 4 to 10 of that Bill will govern the conduct of these reviews).
1590. Item 245: Subsection 52A(3)
1. This item changes the reference to the AAT Act to a reference to the ART Bill.
1591. Item 246: After section 52A
1. This item inserts new section 52AB after amended section 52A. New section 52AB has the effect that clause 170 of the ART Bill (which allows for appeals from ART decisions to the Federal Court to be transferred to the Federal Magistrates Court) does not apply to decisions made under the Australian Citizenship Act.
2. This preserves the same position as currently exists under the AAT Act which prevents the transfer of matters from the Federal Court to the Federal Magistrates Court (see section 44AA of the AAT Act) which relate to the lawfulness of a decision made by the AAT with respect to a decision made under the Australian Citizenship Act or the citizenship regulations.
1593. Item 247: Subsection 52B(1)
1. This item changes the reference to the AAT Act to a reference to the ART Bill.
1594. Item 248: Subsection 52B(1)
1. This item changes the reference to the AAT to a reference to the ART.
1596. Item 249: Subsection 11A(1) (definition of decision)
1. This item changes the reference to the AAT Act to a reference to the ART Bill.
1597. Item 250: Subsection 11A(6)
1. This item changes the reference to the AAT to a reference to the ART.
1598. Item 251: At the end of section 11A
1. This item inserts a new subsection 11A(7) which provides that all merits review of decisions under the Immigration (Guardianship of Children) Act is to take place in the Commercial and General Division of the ART rather than the IRD. As the decisions are left out of the new Part 5 of the Migration Act, the review of the decisions becomes subject to the ART procedures in the ART Bill (that is, Parts 4 to 10 of that Bill will govern the conduct of these reviews).
1599. Item 252: After section 11A
1. This item inserts new section 11AB after section 11A. New section 11AB provides that, in spite of clause 170 of the ART Bill, the Federal Court must not transfer an appeal to the Federal Magistrates Court if the appeal relates to a decision given by the ART on review of a decision under the Immigration (Guardianship of Children) Act or regulations under that Act.
2. Currently, paragraph 44AA(2)(b) of the AAT Act prevents appeals relating to review of decisions under the Immigration (Guardianship of Children) Act from being transferred to the Federal Magistrates Court. New section 11AB therefore maintains the status quo.
1601. Item 253: Paragraph 11B(2)(b)
1. This item changes the reference to the AAT Act to a reference to the ART Bill.
1602. Item 254: Paragraph 11B(2)(b)
1. This item changes the reference to the AAT to a reference to the ART.
1603. Item 255: Subsection 11B(3)
1. This item changes the reference to the AAT Act to a reference to the ART Bill.
1604. Item 256: Subsection 11B(3)
1. This item changes the reference to the AAT to a reference to the ART.
1. This Schedule makes provision for the transition from the AAT to the ART. These provisions are designed to ensure that the transition from review by the AAT to review by the ART takes place efficiently, subject to the need to have due regard to existing rights and obligations.
2. Special provision is made in relation to review by the AAT of decisions that have already been reviewed by the SSAT under the Social Security (Administration) Act 1999 (SS (Administration) Act) or the A New Tax System (Family Assistance) (Administration) Act 1999 (FA (Administration) Act). Some Parts of this Schedule do not apply in relation to certain decisions reviewable by the AAT.
1. This Part defines key terms used in this Schedule.
1607. Item 1: Definitions etc.
1. This item defines a number of terms used in this Schedule. A particularly important definition is AAT abolition time, which means the time when clause 4 of the ART (CTP) Bill (which repeals the AAT Act) commences.
2. Paragraph 1(2)(c) applies where an application for review of an ‘SSAT decision’ is made to the AAT under section 179 of the SS (Administration) Act or section 142 of the FA (Administration) Act before AAT abolition time. The item ensures that such an application is dealt with in accordance with the ART Bill, as modified only by this Schedule. In particular, item 40 of this Schedule modifies the operation of the ART Bill in a similar way to which the AAT Act is modified by the family assistance and social security laws.
3. The modifications made to the ART Bill by Schedules 11 and 13 to this Bill (that have the effect of preserving some key features of SSAT review into the new ART regime) would not apply in relation to the review of these decisions.
4. The overall effect is to preserve the status quo, to the greatest extent possible, for persons who have applied for AAT review of an SSAT decision before AAT abolition time but whose application has not been determined before that time.
1608. Item 2: Parts 5 to 9 not to apply to certain decisions
1. Subitem (1) provides that Parts 5 to 9 of this Schedule do not apply to a decision made before AAT abolition time, where an application for review by the AAT of the decision could be made under section 136 or subsection 500(1) of the Migration Act 1958 as then in force. However, regulations under clause 6 of the ART (CTP) Bill may make provision in relation to such decisions.
2. Subitem (2) provides that Parts 5 to 9 of this Schedule also do not apply to a decision made before AAT abolition time, where an application for review by the AAT of the decision could be made under subsection 175(1) of the Veterans’ Entitlements Act 1986 as then in force. However, regulations under clause 6 of the ART (CTP) Bill may make provision in relation to such decisions.
3. Subitem (3) provides that Parts 5 to 9 of this Schedule also do not apply to a decision made before AAT abolition time by the SSAT, where an application for review by the AAT of the decision could be made other than under section 179 of the SS (Administration) Act or section 142 of the FA (Administration) Act. However, regulations under clause 6 of the ART (CTP) Bill may make provision in relation to such decisions.
1. This Part makes provision with respect to the entitlement of certain deputy presidents of the AAT (including former deputy presidents who retired before AAT abolition time) to pensions under the Judges’ Pensions Act 1968.
1610. Item 3: Entitlement of Deputy Presidents of AAT to pensions under the Judges’ Pensions Act 1968
1. This item ensures that, despite the repeal of the AAT Act by clause 4 of the ART (CTP) Bill, the entitlement of certain deputy presidents of the AAT to pensions under the Judges’ Pensions Act is preserved.
2. The pensions of retired deputy presidents are calculated by reference to the remuneration of current deputy presidents. For a number of years prior to AAT abolition time, the remuneration of a deputy president of the AAT has been set by the Remuneration Tribunal at 82% of the salary payable to a judge of the Federal Court (other than the Chief Judge). Subitem (2) ensures that, for the purpose of determining under the Judges’ Pensions Act the appropriate current judicial salary by reference to which the pensions of former deputy presidents are calculated, the salary is 82% of the salary payable to a Judge of the Federal Court (not being the Chief Judge).
3. Subitem (3) provides that if, before AAT abolition time, a deputy president had been granted leave under subsection 12(2) of the AAT Act, and that leave was granted in order to allow the person to perform duties in another Commonwealth office, then, notwithstanding the repeal of the AAT Act, the person is taken to remain a deputy president after AAT abolition time until the person stops performing duties in the other office. The effect of this is to ensure that service in the other office after AAT abolition time continues to count as service for the purposes of the Judges’ Pensions Act (including that Act as applying by virtue of item 4 of this Schedule).
1611. Item 4: Pensions for certain Deputy Presidents of AAT who are under 60
1. This item applies where a person who is a deputy president of the AAT immediately before AAT abolition time is under 60 years of age at that time and would not otherwise be entitled to a pension under the Judges’ Pensions Act. Generally, a deputy president of the AAT becomes entitled to a pension under the Judges’ Pensions Act once the deputy president has served at least 10 years (as a deputy president and in any other office that counts as service for the purposes of that Act) and reaches 60 years of age.
2. However, where a deputy president did not originally make an election under section 16 of the AAT Act, the item does not apply to entitle the person to a pension under the Judges’ Pensions Act.
3. The item makes provision for a person to whom it applies to be paid a pension, taking into account the period of the person’s service as a deputy president (and in any other office that counts as service for the purposes of the Judges’ Pensions Act), the value to the person of a pension that commences when the person’s service as a judge (within the meaning of that Act) actually ends compared to the value to the person of a pension that commences when the person turns 60, and the superannuation contributions surcharge legislation.
1612. Item 4A: Superannuation surcharge assessments after pensions begin
1. This item applies where a retired deputy president of the AAT, who held the office immediately before the AAT ceased to exist, is in receipt of a pension under the Judges’ Pensions Act and that part of the pension which accrued after 21 August 1996 has been reduced by 15% in relation to the superannuation contributions surcharge. The item also applies where a spouse or child of a deputy president is receiving a pension.
2. The item provides that, if an amount of surcharge is assessed after the first pension payment has been made, the trustee of the scheme constituted under the Judges’ Pensions Act is liable to pay the amount. In the absence of the item, under the Superannuation Contributions Tax (Assessment and Collection) Act 1997, the retired deputy president, the spouse or child, as the case may be, would be liable for the amount in the assessment.
3. This item ensures that retired deputy presidents and their families will not be penalised by having both their pension reduced by 15% and also being liable for payment of any surcharge assessment received after retirement.
1613. Item 4B: Rate of pension where surcharge was paid in part
1. This item applies where a retired deputy president of the AAT, who held the office immediately before the AAT ceased to exist, has made a payment or payments, under subsection 16(7) of the Superannuation Contributions Tax (Assessment and Collection) Act 1997, to the trustee of the scheme constituted under the Judges’ Pensions Act to reduce the amount in his or her surcharge debt account, but has not totally discharged the debt at retirement. Under the Judges’ Pensions Act, such payments are only fully effective if they totally discharge the amount in the surcharge debt account when a pension becomes payable in respect of the retired deputy president or a spouse or child of the person.
2. The item provides for the recognition of payments by a deputy president which do not fully discharge his or her surcharge debt by allowing the Attorney-General to increase the deputy president’s pension rate by an amount certified by the Australian Government Actuary as being fair and reasonable having regard to any such payments.
1. This Part makes provision for the transfer to the ART of certain records, documents and other things in the possession of the AAT, the Federal Court and the Federal Magistrates Court immediately before AAT abolition time. It also allows the President of the ART to return certain documents to a person who originally gave them to the AAT.
1615. Item 5: Transfer of records and documents
1. Records, documents and other things relating to the review of decisions by the AAT that are in the possession of the AAT immediately before AAT abolition time are to be transferred to the ART.
1616. Item 6: Return of documents by Courts
1. Documents that the Federal Court and the Federal Magistrates Court have immediately before AAT abolition time that those Courts would have been required to return to the AAT are to be transferred to the ART at the time those Courts would otherwise have had to return them to the AAT.
2. The President of the ART may return these documents to the person who gave them to the AAT.
1. This Part provides for the final annual report of the AAT.
1. As soon as practicable after AAT abolition time, the President of the ART must give the Attorney-General a report on the AAT’s activities during the period since the end of the financial year in respect of which the President of the AAT last prepared a report in accordance with section 24R of the AAT Act. The report must include financial statements, and an audit report on those statements, as required by sections 49 and 57 respectively of the Financial Management and Accountability Act 1997.
1. This Part preserves a person’s right to receive notice of certain decisions made before AAT abolition time and notice of review rights in relation to them and to apply for statements of reasons for decisions made before that time. It also provides for a number of other related matters of a transitional nature.
1620. Item 8: Notice of pre-AAT abolition time decision and review rights
1. Clause 56 of the ART Bill does not apply to decisions made before AAT abolition time. Clause 56 of the ART Bill requires a person who makes a ‘notifiable decision’ within the meaning of that clause to take reasonable steps to give notice of certain matters to any person whose interests are affected by the decision.
2. However, a requirement that subsection 27A(1) of the AAT Act imposed on a person that had not been met by AAT abolition time continues after that time, despite the repeal of the AAT Act by clause 4 of this Bill. Subsection 27A(1) of the AAT Act requires a person who makes a ‘reviewable decision’ within the meaning of section 27A to take reasonable steps to give notice of certain matters to any person whose interests are affected by the decision.
1621. Item 9: Application of ART Act statement of reasons provisions to pre-AAT abolition time decisions
1. Clauses 57 to 60 of the ART Bill apply in accordance with this Part in relation to decisions made before AAT abolition time.
2. Clauses 57 to 60 deal with the giving, by decision-makers, of statements of reasons and additional statements of reasons for decisions, circumstances in which no statements need to be given or where material can be excluded in the public interest, and various related matters.
1622. Item 10: Where no request for statement under subsection 28(1) of AAT Act
1. If a decision was made before AAT abolition time and no request for a statement in relation to the decision was made before that time under subsection 28(1) of the AAT Act, then clauses 57 to 60 of the ART Bill apply to the decision.
1623. Item 11: Where no response to request for statement under subsection 28(1) of AAT Act
1. This item applies where, before AAT abolition time, a request for a statement of reasons for a decision was made under subsection 28(1) of the AAT Act and the statement had not been given and no requirement to give a notice under subsection 28(1AA) of the AAT Act in relation to the request for the statement had arisen. Subsection 28(1AA) requires a person who is of the opinion that an applicant for a statement of reasons is not entitled to the statement to give the applicant notice stating his or her opinion.
2. In such a case, clauses 57 to 60 of the ART Bill apply as if the request for a statement had been a request made under subclause 57(1) of the ART Bill.
1624. Item 12: Where subsection 28(1AA) of AAT Act applied in relation to request for statement
1. This item applies where, before AAT abolition time, a requirement to give a notice under subsection 28(1AA) of the AAT Act in relation to a request for a statement arose (that is, a person to whom a request to give a statement of reasons for a decision has been made is of the opinion that the applicant for the statement is not entitled to it and is therefore required to give notice of that opinion to the applicant) but the notice was not given or a notice was given but no application had been made to the AAT under subsection 28(1AC) of the AAT Act before AAT abolition time. Under subsection 28(1AC) a person who has been notified that he or she is not entitled to a statement of reasons for a decision can apply to the AAT for a decision whether or not the person is so entitled.
2. In such a case, clauses 57 to 60 of the ART Bill apply as if the requirement or notice was a requirement or notice under subclause 57(4) of the ART Bill in relation to a request for a statement of reasons under subclause 57(1).
1625. Item 13: Where subsection 28(1AC) of AAT Act applied in relation to statement but no AAT decision made
1. This item applies where, before AAT abolition time, an application was made to the AAT under subsection 28(1AC) of the AAT Act for a decision by the AAT on whether the applicant was entitled to a statement of reasons for a decision and the AAT had not made a decision on the application
2. In such a case, clauses 58 to 60 of the ART Bill apply as if the application were made to the ART, under subclause 58(1) of the ART Bill, for a decision whether the decision-maker is required to give a statement of reasons in relation to a request for the statement made under subclause 57(1).
1626. Item 14: Where subsection 28(1AC) of AAT Act applied in relation to statement and AAT decision made
1. This item applies where, before AAT abolition time, an application was made under subsection 28(1AC) of the AAT Act for a decision by the AAT on whether the applicant was entitled to a statement of reasons for a decision and the AAT decided that the applicant was entitled to be given the statement but the statement was not furnished before AAT abolition time.
2. In such a case, subclause 58(3) of the ART Bill applies as if the decision of the AAT were a decision of the ART under that subclause and clauses 59 and 60 of the ART Bill apply to any statement of reasons that is given as a result.
1627. Item 15: Where notice under subsection 28(1A) of AAT Act not given in relation to statement
1. This item applies where, before AAT abolition time, a requirement to give a notice arose under subsection 28(1A) of the AAT Act but the notice had not been given. Subsection 28(1A) empowers a person to whom a request for a statement of reasons is made to refuse to prepare and give the statement where the request was not made within the applicable time period (whether a reasonable time or otherwise). Where a person refuses, the person is required to notify the applicant in writing that the statement will not be given and why.
2. In such a case, the requirement to give the notice is taken for the purposes of clauses 57 to 60 of the ART Bill to be a requirement under subclause 57(4) in relation to a notice about a statement of reasons that the applicant had requested under subclause 57(1).
1628. Item 16: Where application under subsection 28(1B) of AAT Act in relation to statement but no AAT decision made
1. This item applies where, before AAT abolition time, an application was made to the AAT under subsection 28(1B) of the AAT Act and the AAT had not made its decision on the application. An application under subsection 28(1B) is an application for the AAT to declare that a request for a statement of reasons for a decision has been made within a reasonable time for the purposes of paragraph 28(1A)(b).
2. In such a case, clauses 58 to 60 of the ART Bill apply as if the application were an application to the ART under subclause 58(1) in relation to a notice about a statement of reasons that the applicant had requested under subclause 57(1).
1629. Item 17: Where application under subsection 28(5) of AAT Act in relation to statement but no AAT declaration made
1. This item applies where, before AAT abolition time, an application was made to the AAT under subsection 28(5) of the AAT Act for a declaration in relation to a statement but the AAT had not made the declaration. Under subsection 28(5) of the AAT Act the AAT may, upon application by certain persons, make a declaration that a statement did not contain adequate particulars of findings on material questions of fact, or an adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for the decision.
2. In such a case, clauses 59 and 60 of the ART Bill apply as if the application were an application under subclause 59(1) in relation to a statement of reasons that the applicant had requested under subclause 57(1).
1630. Item 18: Where application under subsection 28(5) of AAT Act in relation to statement and no statement given
1. If, before AAT abolition time, a requirement to furnish an additional statement or statements had arisen under subsection 28(5) of the AAT Act but the statement or statements had not been furnished, the requirement continues despite the repeal of the AAT Act by this Bill.
1631. Item 19: Where certificate under subsection 28(2) of AAT Act given in relation to a statement of reasons
1. This item applies where, before AAT abolition time, the Attorney-General had given a certificate under subsection 28(2) of the AAT Act that the disclosure of matter contained in a statement under subsection 28(1) of that Act in relation to a decision would be contrary to the public interest, and the ART Bill applies in relation to the decision, either because of this Part or Part 7.
2. For the purposes of that application of the ART Bill, the certificate has effect as if it had been given under clause 60 of the ART Bill.
1. This Part provides for applications to be made to the ART under clause 61 of the ART Bill for first-tier review of certain decisions that were made before AAT abolition time.
1633. Item 20: Applications for ART review of pre-AAT abolition time decisions to be made in certain cases only
1. An application under clause 61 of the ART Bill for review of a decision made before AAT abolition time can only be made in accordance with this Part.
1634. Item 21: Applications for ART review of pre-AAT abolition time decisions where time limit has not expired
1. This item applies where, before AAT abolition time, time limits in which to make an application to the AAT for review of a decision apply, and the applicable time limit has not ended before AAT abolition time and a person entitled to apply for review has not done so before AAT abolition time.
2. In such a case, the person may apply to the ART under clause 61 of the ART Bill for first-tier review of the decision, within the applicable time limit (which may be a prescribed time that was extended by the AAT) or that time limit as extended, on application, by the ART.
1635. Item 22: Applications for ART review of pre-AAT abolition time decisions in other circumstances
1. This item gives the ART a discretion to allow a person who was entitled before AAT abolition time to apply for review of a decision and who had not done so before that time to make an application to the ART for first-tier review of the decision. The Tribunal must be satisfied that it would be reasonable in all the circumstances to allow the person to make the application. The item applies in circumstances where the preceding item does not apply.
2. Where such a person is permitted to make an application, the person must do so within the time fixed by the ART.
1. This Part provides for the ART to conduct reviews of certain decisions made before AAT abolition time where applications for review had been made to the AAT. This Part also makes provision for other related matters.
1637. Item 23: ART to conduct first-tier review where application for AAT review and no time limit
1. This item applies where an application that was not subject to a time limit was duly made to the AAT for review before AAT abolition time, the AAT had not formed a view about whether the application was lodged within a reasonable time after the decision was made, and the ART is satisfied that it was lodged with the AAT within a reasonable period or that there are special circumstances to justify the ART Bill applying. For an application to have been duly made under the AAT Act (disregarding subsections 29(4) to (6) of that Act), the applicable fees (if any) would have had to be paid and various other conditions be met.
2. In such a case, the ART Bill and any other Act that relates to review under the ART Bill apply in relation to the application, as if the application were an application for first-tier review of the decision by the ART that complied with the requirements of Division 2 of Part 9 of the ART Bill and that was made immediately after AAT abolition time.
1638. Item 24: ART to conduct first-tier review where application for AAT review duly made but no AAT decision made etc.
1. This item applies where, before AAT abolition time, a person duly made an application to the AAT for review of a decision, item 23 does not apply, the AAT did not make a decision on the application under subsection 42C(2) or 43(1) of the AAT Act before that time, and the application had not been dismissed or dismissed and reinstated.
2. In such a case, and subject to the remaining provisions of this Part, the ART Bill and any other Act relating to review under the ART Bill apply in relation to the application as if the application were an application for first-tier review of the decision by the ART that complied with the requirements of Division 2 of Part 9 of the ART Bill and that was made to the ART immediately after AAT abolition time.
1639. Item 25: Modified ART review where pre-AAT abolition time notice or statement of reasons given
1. This item applies where, before AAT abolition time, any of the following circumstances applies:
• an application for review of a decision to which item 24 applies (except an SSAT decision) had been made to the AAT and the AAT had notified the person who made the decision of the application; or
• a person who made a decision had lodged copies of a statement and documents with the AAT under subsection 37(1) of the AAT Act; or
• a person who made a decision had lodged copies of a document with the AAT in accordance with subsection 37(1AB) of the AAT Act.
2. Paragraph (d) of the item provides that, in the first circumstance, clause 76 of the ART Bill (providing for notice of an application for review of a decision to be given to a decision-maker) does not apply in relation to the first-tier review by the Tribunal of the decision but the ART Bill applies as if notice of the application for review had been given under that clause to the person who made the decision and had related to that review.
3. Paragraph (e) of the item provides that, in the second or third circumstance, clause 77 of the ART Bill (providing for statements of reasons and certain documents relevant to a decision to be given to the ART) does not apply in relation to the first-tier review by the Tribunal of the decision but the ART Bill applies as if the copies had been given to the Tribunal under that clause and had related to that review.
1640. Item 26: Modified ART review where pre-AAT abolition time order to provide additional statements
1. This item applies where, before AAT abolition time, the AAT, under section 38 of the AAT Act, ordered the person (other than, as a result of the application of section 187 of the SS (Administration) Act, the Executive Director of the SSAT) who made the decision to which item 24 applies to lodge an additional statement or statements with the AAT and that had not been done by AAT abolition time.
2. In such a case, the person must give the additional statement or statements to the Tribunal within the time specified in the order and clause 78 of the ART Bill (which deals with the powers of the Tribunal to require a decision-maker to give the Tribunal an additional statement or statements of reasons in certain circumstances) does not apply in relation to first-tier review by the Tribunal of the decision.
1641. Item 27: Modified ART review where pre-AAT abolition time provision of other documents
1. This item applies where, before AAT abolition time, a person gave the AAT any document relating to an application for review of the decision to which item 24 applies and the person would, apart from this item, be required by clause 79 or 80 of the ART Bill to give the document to the Tribunal.
2. In such a case, clause 79 or 80 of the ART Bill does not apply to the document in relation to the first-tier review by the Tribunal of the decision.
1642. Item 28: Modified ART review—pre-AAT abolition time parties to become participants
1. This item provides that a person who was a party to a proceeding before the AAT before AAT abolition time for review of a decision to which item 24 applies becomes a participant in the first-tier review of the decision by the ART, subject to Division 2 of Part 6 of the ART Bill (other than subclause 84(1) and, where the decision is mentioned in section 144 of the FA (Administration) Act, clause 85) and paragraphs 128(1)(e) and 129(d) of the ART Bill.
1643. Item 29: Modified ART review—pre-AAT abolition time applications to be made parties to be treated as applications to become participants
1. This item applies where, before AAT abolition time, a person had applied to the AAT under subsection 30(1A) of the AAT Act to be made a party to a proceeding before the AAT for the review of a decision to which item 24 applies and the AAT had not made a decision under that subsection on the application.
2. In such a case, paragraph 84(1)(d) of the ART Bill applies to the application as if it were an application by the person to become a participant in the first-tier review of the decision by the ART.
1644. Item 30: Modified ART review—pre-abolition time right to representation preserved
1. This item preserves, in relation to review by the ART (whether first- or second-tier), and despite clause 105 of the ART Bill, a right to representation that a person had before AAT abolition time in a proceeding before the AAT on the review of a decision to which item 24 applies.
1645. Item 31: Modified ART review—certificates by Attorney-General
1. This item applies where, before AAT abolition time, the Attorney-General issued a certificate under section 36 of the AAT Act in relation to the review by the AAT of a decision to which item 24 applies.
2. In such a case, the certificate has effect in relation to the first-tier review by the ART of the decision and in any resulting second-tier review as if it had been issued under clause 101 of the ART Bill.
3. Certificates issued under section 36 of the AAT Act and clause 101 of the ART Bill protect certain information and matters from disclosure in certain circumstances.
1646. Item 32: Modified ART review—continuation of pre-AAT abolition time stay orders and requests
1. This item applies where, immediately before AAT abolition time, an order under subsection 41(2) of the AAT Act was in force in relation to a decision to which item 24 applies. Subsection 41(2) makes provision for orders to be made by the AAT affecting the operation or implementation of a decision, or part of a decision, to which proceedings relate.
2. In such a case, the order has effect in relation to the first-tier review by the ART of the decision as if it were a direction made under subclause 121(3) of the ART Bill. Directions under subclause 121(3) of the ART Bill allow the operation or implementation of certain decisions to be stayed or otherwise affected in certain circumstances.
3. This item also applies where, before AAT abolition time, a request was made under subsection 41(2) of the AAT Act for the making of an order in relation to the review of a decision to which item 24 applies but no decision had been made on the request before that time. In such a case, the ART must, as soon as practicable, consider whether to make such an order under subclause 121(3) of the ART Bill in relation to the ART’s first-tier review of the decision.
1647. Item 33: Modified ART review—continuation of inadmissibility of conference and mediation evidence etc.
1. This item makes provision for the continuation, after AAT abolition time, of restrictions on the use of evidence of things said or done at a conference under section 34 of the AAT Act, or a mediation under section 34A of that Act, in relation to the review by the AAT of a decision to which item 24 applies. The parties to a conference, or participants in a review by the ART following mediation, may agree to a lifting of those restrictions.
1648. Item 34: Modified ART review—continuation of pre-AAT abolition time confidentiality directions
1. This item applies where, immediately before AAT abolition time, an order under subsection 35(2) of the AAT Act was in force giving directions in relation to a decision to which item 24 applies. Subsection 35(2) empowers the AAT to make certain orders to protect the confidential nature of any evidence or matter or for any other reason.
2. In such a case, the directions have effect in relation to the first-tier review by the ART of the decision as if they were directions given by the Tribunal under subclause 100(3) of the ART Bill. Directions may be made under subclause 100(3) of the ART Bill to protect the confidential nature of any part of a review.
1649. Item 35: Modified ART review—continuation of effect of summons
1. This item applies where, before AAT abolition time, in relation to the review by the ART of a decision to which item 24 applies, a person had been summoned to appear before the AAT and the time for the person to appear was after AAT abolition time. The summons has effect for the purposes of the ART’s review of the relevant decision as if it had been issued under clause 95 of the ART Bill.
1650. Item 36: Modified ART review—effect of pre-AAT abolition time consent agreements
1. This item provides that if, before AAT abolition time, an agreement between the parties of the kind mentioned in paragraph 42C(1)(a) of the AAT Act had been made as to the terms of a decision to which item 24 applies and the AAT had not made a decision under subsection 42C(2) or 43(1) of the AAT Act in relation to the agreement, then clause 109 of the ART Bill applies in relation to the agreement as if the agreement related to the first-tier review by the ART of the decision.
2. Clause 109 empowers the Tribunal to make a decision or take action that accords with an agreement reached by the participants in a review.
1651. Item 37: Modified ART review—need for efficiency etc.
1. This item is designed to ensure the efficient transition from review by the AAT to review by the ART.
2. Subitem (1) imposes a duty on the new Tribunal to ensure, in conducting first-tier reviews of decision to which item 24 applies, that the transition from review by the AAT takes place as efficiently as possible, in the light of the objects set out in clause 3 of the ART Bill.
3. Subitem (2), in particular, requires the ART to have regard, in conducting first-tier reviews of decisions to which item 24 applies, to all evidence, records, documents and other things (including those in electronic form) relating to review by the AAT that are transferred to the new Tribunal.
4. The new Tribunal may, of course, permit a person who has already given evidence etc. to the AAT to present the same evidence etc. to the ART. However, if the new Tribunal decides in a particular case that this is not necessary, this is not a ground for an appeal to the Federal Court or for seeking review by that Court or the Federal Magistrates Court.
1652. Item 38: Continuation of pre-AAT abolition time references of questions of law to Federal Court
1. This item applies where, before AAT abolition time, the AAT had referred a question of law to the Federal Court, being a question arising in a proceeding before the AAT in relation to the review of a decision to which item 24 applies.
2. This item provides both for where the Federal Court has given its opinion before AAT abolition time and where it has not.
3. Subitem (2) provides that where the Federal Court has given its opinion on the question before AAT abolition time, the ART must not, in its first-tier review of the decision in accordance with item 24, proceed in a manner or make a decision which is inconsistent with the opinion of the Federal Court on the question.
4. Subitem (3) provides that where the Federal Court has not given its opinion on the question, the jurisdiction of the Federal Court to hear and determine the question is not affected by the repeal of the AAT Act and the ART must not, in its first-tier review in accordance with item 24 make any decision to which the question is relevant while the reference to the Federal Court is pending or proceed in a manner, or make a decision, that is inconsistent with the opinion of the Federal Court on the question. Subject to modifications set out in subitem (4) to accommodate the change from the AAT to the ART, section 46 of the AAT Act applies to the reference despite the repeal of the AAT Act.
1653. Item 39: Reinstatement of pre-AAT abolition time review
1. This item applies where, before AAT abolition time, an application to the AAT for review of a decision was dismissed.
2. Subitem (1) applies where, before AAT abolition time, an application for review of a decision was dismissed and a party applied to the AAT under subsections 42A(8) or (10) of the AAT Act for the application for the review to be reinstated and the AAT had not made its decision on the application.
3. In such a case, the party is deemed to have applied to the ART for the review to be reinstated as a first-tier review by the Tribunal of the decision and subclauses 132(2) and (3) of the ART Bill apply in relation to the application as if it were an application under subclause 132(1) of the ART Bill.
4. Subitem (2) applies where, before AAT abolition time, an application for review of a decision was dismissed but the other elements of subitem (1) are not satisfied.
5. In such a case, a party may apply to the ART for the application to be reinstated as an application for first-tier review by the ART of the decision. If a party makes such an application, subclauses 132(2) and (3) of the ART Bill apply in relation to the application as if it were an application under subclause 132(1) of that Bill.
1654. Item 40: Modified ART review—SSAT decisions
1. This item further modifies the operation of the ART Bill in relation to an SSAT decision to which item 24 applies. Item 24 operates to ensure that any application for AAT review of an SSAT decision that is made but not determined before AAT abolition day is taken to be an application for first-tier review by the ART.
2. Subitem (2) provides that second-tier review is not available in relation to an SSAT decision to which item 24 applies. This modification ensures that a two-tier system of external review is maintained for such decisions.
3. Subitem (3) modifies the operation of clause 76 of the ART Bill. The modification operates where an application has been made to the ART for review of an SSAT decision or for leave to apply for review of such a decision. It ensures that the Chief Executive Officer of the ART notifies each person who was a party to the SSAT review (except the applicant or a person who was so notified before AAT abolition time) of the application.
4. This modification to the ART Bill is similar to the current modification to the AAT Act provided for in section 184 of the SS (Administration) Act and section 147 of the FA (Administration) Act.
5. Subitem (4) deals with the situation where, before AAT abolition time, copies of statements and documents were not lodged with the AAT in accordance with subsection 37(1) of the AAT Act. This requirement, as modified by subsection 186(1) of the SS (Administration) Act or subsection 149(1) of the FA (Administration) Act, is continued into the new ART regime by a modified clause 77 of the ART Bill.
6. Subitem (5) deals with the situation where the Chief Executive Officer of the Commonwealth Services Delivery Agency or the Secretary to the Department of Family and Community Services has not lodged statements or documents with the AAT as required under paragraph 37(1)(a) of the AAT Act, as modified by subsections 186(2) and (4) of the SS (Administration) Act or subsection 149(2) of the FA (Administration) Act. The ART Bill is modified so that the Chief Executive Officer or Secretary is taken to have complied with the obligation in paragraph 77(1)(a) of the ART Bill when the Chief Executive Officer or Secretary provides the relevant statement or document to the ART.
7. Subitem (6) continues the effect of subsection 186(3) of the SS (Administration) Act or subsection 149(3) of the FA (Administration) Act.
8. Subitem (7) modifies the ART’s power in subclause 121(3) of the ART Bill to stay a decision. This modification operates in the same way as subsection 186(3) of the SS (Administration) Act and subsection 149(3) of the FA (Administration) Act modify the equivalent AAT Act provision. The modification ensures that the ART, in ordering a stay or otherwise affecting the operation or implementation of a decision, takes SSAT decisions into account.
9. Subitem (8) makes minor modifications to clauses 128 and 129 of the ART Bill by replacing references to ‘decision-maker’ with references to the ‘Secretary to the Department of Family and Community Services’. These modification have the same effect as the modifications made to the AAT Act by section 189 of the SS (Administration) Act and section 152 of the FA (Administration) Act.
10. Subitem (9) modifies the operation of subclause 133(1) of the ART Bill so that the ART, in exercising its powers and discretions under that provision, cannot exercise the Secretary’s power under subsection 1218A(2) of the Social Security Act 1991. This modification continues the effect of section 190 of the SS (Administration) Act into the new ART regime.
11. Subitem (10) modifies clause 167 of the ART Bill as it applies to the first-tier review of SSAT decisions. While subclause 167(1) will not apply in relation to these decisions, subclause 167(2) is modified so that a person who was a participant in a first-tier review of an SSAT decision may appeal to the Federal Court on a question of law.
1656. Item 41: Continuation of other pre-AAT abolition time AAT jurisdiction
1. This item makes provision for the ART to finish exercising certain powers or performing certain functions being exercised or performed by the AAT before AAT abolition time. Such powers or functions do not include the power etc. to review decisions or to do other things under the AAT Act. Such a power or function must also be one that the Tribunal may exercise or perform as a related Tribunal function, within the meaning of the ART Bill.
1657. Item 42: Continuation of enquiries etc. under the ASIO Act
1. This item provides for the ART to finish taking action that the AAT had taken and not finished by AAT abolition time under section 65 of the Australian Security Intelligence Organisation Act 1979.
1. This Part preserves the effect of decisions made on review by the AAT. It also requires the ART to furnish statements of reasons for certain decisions given by the AAT and preserves certain appeals in progress and rights to appeal and makes certain other provision.
1659. Item 43: Preservation of effect of AAT decisions
1. This item preserves the effect, after AAT abolition time, of decisions of the AAT under subsection 42C(2) or 43(1) of the AAT Act.
1660. Item 44: Preservation of obligation to give statement of reasons for AAT decision
1. This item requires the ART to give a party a statement of reasons for a decision by the AAT within 28 days of the commencement of the item if, before AAT abolition time, a party to a proceeding before the AAT had requested a statement of reasons for the decision under subsection 43(2A) of the AAT Act and the AAT had not furnished the statement to the party by AAT abolition time.
1661. Item 45: Preservation of right to apply for statement of reasons for AAT decision
1. This item preserves a person’s right, in specified circumstances, to ask the ART to give the person a statement of reasons for a decision of the AAT and requires the new Tribunal to give the statement, and give a copy of the statement to each other party to the proceeding, within a specified period.
1662. Item 46: Preservation of AAT requirement for decision-maker to reconsider a decision or matter
1. This item continues the requirement for certain decisions and matters to be reconsidered where the AAT has, before AAT abolition time, remitted such a decision or matter for reconsideration and the decision or matter had not been reconsidered by AAT abolition time.
1663. Item 47: Preservation of Federal Court appeal rights and appeals in progress under the AAT Act
1. This item preserves certain appeal rights from a decision of the AAT to the Federal Court and preserves other appeals already in progress prior to AAT abolition time. It does this by providing that certain provisions of the AAT Act continue to apply, with specified modifications to accommodate the change from the AAT to the ART.
1664. Item 48: Preservation of Federal Court and Federal Magistrates Court appeal rights and appeals in progress under the ADJR Act
1. This item preserves the right to make an application, after AAT abolition time, to the Federal Court or the Federal Magistrates Court under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) for review of certain matters. It provides that the ADJR Act continues to apply in relation to the decision, and any application for review under the ADJR Act, of the AAT despite the repeal of the AAT Act.
2. This item also provides that if an application had been lodged, before AAT abolition time, with the Federal Court or the Federal Magistrates Court under the ADJR Act for review of certain AAT matters and the Federal Court, the Family Court or the Federal Magistrates Court had not heard and determined the application before that time, then the ADJR Act applies to the application despite the repeal of the AAT Act.
3. Subitem (3) makes specific provision with respect to the application of the ADJR Act in accordance with this item to accommodate the change from the AAT to the ART.
1665. Item 49: Preservation of other review application rights and reviews in progress
1. This item preserves the right to make an application, after AAT abolition time, to a court (other than under the AAT Act or the ADJR Act), tribunal, person or authority for review of certain AAT matters and provides that any such application is, subject to the modifications made by subitem (3), to be heard and determined in the same way as it would if the AAT Act had not been repealed.
2. This item also provides that if an application had been made before AAT abolition time to a court (other than under the AAT Act or the ADJR Act), tribunal, person or authority for review of certain AAT matters and the court etc. had not heard and determined the application before that time, then, subject to the modifications made by subitem (3), the application is to be heard and determined in the same way as it would if the AAT Act had not been repealed.
1666. Item 50: Preservation of powers to waive and refund fees
1. This item makes provision in relation to the waiver of the payment of fees relating to applications made under the AAT before AAT abolition time. This item also makes provision in relation to the refund of fees paid in relation to proceedings under the AAT Act that terminated before AAT abolition time.
1667. Item 51: Preservation of costs directions etc.
1. This item applies where, before AAT abolition time, directions had been given for costs to be taxed and, by that time, the costs had not been taxed or had not been taxed and settled. In such a case, the Tribunal or the Chief Executive Officer must tax the costs.
2. This item also makes provision for where, before AAT abolition time, an application had been made to the AAT for review of an amount taxed and, by that time, the AAT had not reviewed the amount. In such a case, clause 156 of the ART Bill applies as if the application had been made to the new Tribunal.
1. This Part makes provision with respect to other transitional matters.
1669. Item 52: Attorney-General’s certificate under subsection 38(2) of the ASIO Act
1. This item provides for the continuing effect, after AAT abolition time, of a certificate given by the Attorney-General under subsection 38(2) of the Australian Security Intelligence Organisation Act 1979 before that time.
1. This Part ensures that appointments to, and the performance of functions by, the Administrative Review Council, and certain other matters, are not affected by the repeal of the AAT Act. Part V of the AAT Act made provision for the establishment and operations of the Council.
1671. Item 53: Administrative Review Council appointments, performance of functions etc.
1. This item provides that, after the ART (CTP) Bill repeals Part V of the AAT Act, certain things done before that time concerning the Administrative Review Council have effect as if they had taken place, when they took place, under Part 11 of the ART Bill.
2. Those things are appointments of Council members made under Part V of the AAT that were in force just before that Part was repealed, the conduct of any inquiry or the doing of any other thing by the Council that began or was completed under that Part, the referral of any matter to the Council or the doing of any other thing by the Attorney-General that took place under that Part, or the doing of any other thing under that Part.
3. This item also ensures that the operations of the Council during the whole or part of a financial year that have not been covered by an annual report under subsection 58(2) of the AAT Act are dealt with in the first report of the Council under the ART Bill.
1. This Schedule makes provision for the transition from the MRT and RRT to the ART. It is intended that that transition be achieved as smoothly and efficiently as possible. To this end, undecided applications for review by the MRT or RRT are to be dealt with by the ART under the provisions of new Part 5 of the Migration Act 1958, subject to the modifications dealt with in this Schedule. Actions already taken by the MRT and RRT are preserved, to avoid duplication of processes by the ART. This Schedule also includes provision for the appointment of MRT and RRT members to the ART for a 12-month period.
1. This Division defines key terms used in this Part.
1. This item defines a number of terms for the purposes of this Part. Of particular importance are the following definitions:
• ‘ART’ means the Administrative Review Tribunal established by the ‘ART Act’ which, in turn, is defined to mean the ART Bill;
• ‘MRT’ means the Migration Review Tribunal established by Division 1 of Part 6 of the Migration Act, as in force immediately before MRT abolition time; and
• MRT abolition time means the time when Schedule 14 to this Bill (dealing with the amendments of the migration legislation) commences. That Schedule will commence on the date that Parts 4 to 10 of the ART Bill commence (see paragraph 5 of this memorandum).
1. This Division provides for MRT members to be taken to be appointed to the ART for a period of 12 months after MRT abolition time. This will help to ensure that, in the transition to the ART for the migration merits review workload, review decision-making continues with minimal disruption.
1677. Item 2: Deemed appointment of MRT members as ART members
1. Subitem 2(1) provides that a person who was a member of the MRT immediately before MRT abolition time is taken to be appointed, from that time, as a member of the ART.
2. Subitem 2(2) provides that such a person is taken to have been appointed, for a period of 12 months, to the Immigration and Refugee Division of the ART (IRD) as a member who is not an executive or senior member.
1. This Division makes provision for the transfer to the ART of certain material in the possession of the MRT immediately before MRT abolition time, and for the return by the Federal Court of certain documents to the ART instead of the MRT.
1679. Item 3: Transfer of records and documents
1. This item makes provision for the transfer to the ART of any evidence, records, documents or other things relating to the MRT’s review of decisions and in possession of the MRT immediately before MRT abolition time. This item then links to item 29, which provides that the ART must, in conducting its review of ‘transitional applications for review’, have regard to all evidence, records, documents or other things relating to the MRT’s review of the decision that have been transferred to it.
1680. Item 4: Return of documents by Federal Court
1. This item provides that any documents which may be in the possession of the Federal Court immediately before MRT abolition time, and which would be required to be returned to the MRT, must be returned to the ART instead. The item enables the President of the ART to return such documents to the person who gave them to the MRT.
1. This Division provides for the final annual report of the MRT to be provided by the President of the ART.
1. This item requires the President of the ART to give, as soon as practicable after MRT abolition time, a report on the MRT’s activities during the period since 30 June 2000, to the Minister for Immigration and Multicultural Affairs. The report is for presentation to the Parliament and must be prepared in accordance with guidelines approved on behalf of the Parliament by the Joint Committee of Public Accounts and Audit.
1. This Division preserves a person’s right to receive notice of reviewable decisions (and of relevant review rights) made before MRT abolition time.
1684. Item 6: Notice of pre-MRT abolition time decision and review rights
1. This item provides that the notification provisions in new sections 339A (notification of decisions) and 340 (notification of review rights) of the Migration Act apply in relation to a decision made before MRT abolition time only if notice of that decision had not already been given under the notification provisions in force before MRT abolition time (that is, sections 66 and 127 of the Migration Act as in force before MRT abolition time). This will obviate the need to renotify decisions made prior to the ART’s commencement, while at the same time ensuring that where no such notification has been given, the item will require that notice of the decision, including reasons (new section 339A), together with notice of the review rights relating to that decision (new section 340), is given.
1. This Division provides for applications to be made to the ART for review of certain decisions made before MRT abolition time.
1686. Item 7: Applications for ART review of pre-MRT abolition time decisions reviewable by MRT to be made in certain cases only
1. This item provides that, after MRT abolition time, an application for ART review of a decision made before MRT abolition time which would have been reviewable by the MRT can only be made in accordance with this Part. This has the effect of subjecting such applications to the provisions of this Part, which, for the most part, will apply the provisions of the new Part 5 of the Migration Act (Schedule 14 to this Bill).
1687. Item 8: Applications for ART review of pre-MRT abolition time decisions reviewable by MRT where time limit has not expired
1. This item provides that a person who, being entitled to do so, had not made an application for MRT review before MRT abolition time is entitled, after that time, to make an application for ART review, provided the person makes the application before the end of the period within which the MRT application would have had to be made. The time within which to make an application will not start again on commencement of the ART.
1. This Division provides for the ART to conduct reviews of certain decisions made before MRT abolition time where applications for review had been made to the MRT. The Division also makes provision for other related matters.
1689. Item 9: ART to conduct review where application for MRT review properly made but no MRT decision made
1. This item applies where, before MRT abolition time, a person had properly made an application to the MRT for review of a decision and the MRT had not made its decision on the application before MRT abolition time.
2. In such a case, subject to the exceptions highlighted in the remainder of this Part, the new Part 5 of the Migration Act as in force after MRT abolition time applies to the application as if it were an application for review by the ART of a reviewable general visa decision (the new name for ‘MRT-reviewable decision’) that:
• complied with the requirements of new sections 344, 346, 346A and 347 (relating to standing, form, fee and time limits for applying for ART review) of the Migration Act; and
• was made to the ART at the time when it was made to the MRT.
3. The reason the time the application is taken to have been made to the ART at the time when it was made to the MRT (see the second dot point in the previous paragraph) is to preserve the effect of the time limits within which the Tribunal must make certain decisions: see new section 366E (bridging visa decisions) and new section 368C (character decisions).
1690. Item 10: Modified ART review—constitution of ART
1. This item applies for the purposes of the ART’s review of a decision to which item 9 applies.
2. In such a case, the President of the ART is taken to have given, immediately after MRT abolition time, a direction under subsection 354(2) of the Migration Act that the member or members who constituted the MRT for the particular review is or are to constitute the ART (see paragraph (1)(a)).
3. If the direction under subsection 354(2) before MRT abolition time constituting the MRT for its review of the decision required two or three members to constitute the MRT and as a result of paragraph (1)(a) fewer than the two or three members constitute the ART for the purposes of its review of the decision (that is, not all members of the multi-member Tribunal pre ART are members post ART), then the President may give a direction under subsection 354(2) (and in accordance with directions under section 353A) that an additional member or members are to constitute the ART provided this does not result in more than the two or three members mentioned above constituting the ART. Where pre-ART there was a single member Tribunal, and post ART that member does not continue as a member, the ART is to be constituted, in accordance with a written direction of the President or the executive member of the IRD, under new subsection 354(2).
4. Subitem (2) provides that, for the purposes of giving a direction
under paragraph (1)(b), subsection 354(3) (the statutory presumption
for single-member Tribunals) does not
apply.
1691. Item 11: Modified ART review
where pre-MRT abolition time notice of application given
1. This item provides that:
if, before MRT abolition time:
then, after MRT abolition time:
• notice of the application for MRT review of a decision to which item 9 applies was given to the Secretary to the Department of Immigration and Multicultural Affairs (Secretary) in accordance with subsection 352(1) of the Migration Act;
• new section 347B of the Migration Act does not apply in relation to the ART’s review, but the new Part 5 applies as if the notice of the application had been given under that section and had related to the review;
• a requirement had arisen under subsection 352(2) or (3) for the Secretary to give copies of a statement to the Registrar of the MRT, but that obligation had not been complied with by MRT abolition time;
• the requirement to give the copies continues, but is instead a requirement to give them to the Chief Executive Officer of the ART;
• a requirement had arisen under subsection 352(4) for the Secretary to give documents or parts of documents to the Registrar of the MRT, but that obligation had not been complied with by MRT abolition time;
• the requirement to give the documents or parts of documents continues, but is instead a requirement to give them to the Chief Executive Officer of the ART;
• the Secretary gave documents or parts of documents to the Registrar of the MRT in accordance with subsection 352(4);
• new subsection 347C(1) of the Migration Act does not apply in relation to the ART’s review, but the new Part 5 applies as if the documents or parts of documents had been given to the ART under that subsection and had related to that review.
1692. Item 12: Modified ART review—continuation of invitations to give additional information or comment etc.
1. This item applies where, before MRT abolition time, a person was invited under sections 359, 359A or 360 of the Migration Act to give additional information, to comment on information, or to appear before the MRT to give evidence and present arguments, respectively, and by MRT abolition time the person had not done so.
2. In such circumstances, the invitation has effect after MRT abolition time as if it had been given under new sections 359, 359A or 361, respectively, and had related to the ART’s review.
1693. Item 13: Modified ART review—continuation of non-appearance requirement
1. This item provides that where, before MRT abolition time, an applicant for MRT review of a decision to which item 9 applies was, because of subsection 360(3) of the Migration Act, not entitled to appear before the MRT, the applicant is similarly not entitled to appear before the ART in relation to the ART’s review of the decision.
2. Pursuant to subsection 360(3), a person is not entitled to appear before the MRT where:
• the MRT considers that it should decide the review in the applicant’s favour ‘on the papers’; or
• the applicant consents to the MRT deciding the review without the applicant appearing before it; or
• the applicant was invited to give additional information or comment on information within specified time limits and failed to do so.
1694. Item 14: Modified ART review where pre-MRT abolition time invitation to appear
1. This item applies where, before MRT abolition time, the MRT had given notice under section 360A (notice of invitation to appear) to the applicant for review of a decision to which item 9 applies and the time specified in the notice had not passed by ART abolition time.
2. In such a case, for the purposes of the ART’s review of the decision:
• sections 361 (applicant may request Tribunal to call witnesses) and 362B (failure of applicant to appear before Tribunal), as in force immediately before MRT abolition time, have effect after MRT abolition time in relation to the notice as if they had not been repealed or amended by this Bill; and
• new section 361B (applicant may request Tribunal to call witnesses) and new section 362B as in force after MRT abolition time do not apply in relation to the applicant.
3. Section 362B currently allows the MRT to make a decision on the review without taking further action to allow or enable the applicant to appear where the applicant fails to appear at a scheduled hearing. On commencement of Schedule 14 to this Bill, new section 362B will enable the ART to end the review without making a decision where the applicant fails to appear, in addition to the existing provision which enables the Tribunal to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. Item 14 ensures that the status quo is preserved for transitional cases where the applicant fails to appear at a hearing scheduled by the MRT: that is, the new power to end the review without making a decision will not be available in these cases.
1695. Item 15: Modified ART review—continuation of requirement where applicant wishes witnesses etc. to be called
1. This item applies where:
• before MRT abolition time, the MRT was required to have regard to a notice by the applicant to the Tribunal to obtain oral evidence from a person or persons named in relation to the MRT’s review of a decision to which item 9 applies (see subsection 361(3)); and
• by MRT abolition time, the MRT had not complied with the notice.
2. In such a case, the ART must, in its review of the decision, have regard to the notice, but is not required to comply with it. This allows the ART the flexibility to decide to obtain the evidence sought by the applicant, or to decide not to obtain that evidence.
1696. Item 16: Modified ART review—continuation of effect of decision not to obtain evidence at request of applicant
1. This item preserves, in relation to review by the ART, the effect of a decision by the MRT before MRT abolition time not to obtain evidence from a person or from one or more of the persons specified by the applicant in a request under section 362 of the Migration Act (section 362 applies only to the review of bridging visa decisions where the applicant is in detention as a result of the decision). If the MRT decided not to obtain such evidence, then the ART must not obtain such evidence. The fact that this differs from item 15 (which gives the ART flexibility to obtain evidence despite the MRT having decided not to do so) reflects the tight time frames within which bridging visa detention cases must be made by the MRT (and the ART—see new section 366E).
1697. Item 17: Modified ART review—continuation of effect of failure of applicant to appear before MRT
1. This item applies where:
• before MRT abolition time, the MRT was entitled under subsection 362B(1) of the Migration Act to make a decision on its review of a decision to which item 9 applies without taking any further action to allow or enable the applicant for review to appear before it; and
• by MRT abolition time, the MRT had not made such a decision.
2. In such a case, for the purposes of the ART’s review of the decision:
• section 362B (failure of applicant to appear before Tribunal), as in force immediately before MRT abolition time, has effect after MRT abolition time in relation to the review as if it had not been repealed or amended by this Bill; and
• new section 362B as in force after MRT abolition time does not apply in relation to the applicant.
3. Section 362B currently allows the MRT to make a decision on the review without taking further action to allow or enable the applicant to appear where the applicant fails to appear at a scheduled hearing. On commencement of Schedule 14 to this Bill, new section 362B will enable the ART to end the review without making a decision where the applicant fails to appear, in addition to the existing provision which enables the Tribunal to make a decision on the review without taking further action to allow or enable the applicant to appear before it. Item 17 ensures that the status quo is preserved for transitional cases where the applicant fails to appear at a hearing scheduled by the MRT: that is, the new power to end the review without making a decision will not be available in these cases.
1698. Item 18: Modified ART review—continuation of adjournment
1. This item provides that if, before MRT abolition time, the MRT had adjourned its review of a decision to which item 9 applies to a time after MRT abolition time, then the ART must not commence its review of that decision before the expiration of the adjournment time.
1699. Item 19: Modified ART review—continuation of requirement for investigation
1. This item applies where:
• before MRT abolition time, the MRT had, under paragraph 363(1)(d) of the Migration Act, required the Secretary to arrange for the making of an investigation or a medical examination and to report to the MRT; and
• by MRT abolition time, the investigation or examination had not commenced or been completed, or it had been completed but the report about the investigation or examination had not been commenced, completed or given to the MRT.
2. In such a case, the Secretary must, with respect to the ART’s review of the decision, arrange for the investigation, examination or report (as the case may be) to be commenced, completed or given to the ART, as the case requires.
1700. Item 20: Modified ART review—continuation of combined reviews
1. This item provides that where the review by the MRT of two or more decisions to which item 9 applies were combined (under subsection 363(2) of the Migration Act), the ART must combine its review of those decisions.
1701. Item 21: Modified ART review—continuation of effect of summons
1. This item is intended to ensure that certain summonses issued by the MRT presiding member to give evidence or produce documents continue to have effect after MRT abolition time.
2. This item applies where:
• before MRT abolition time, the presiding member of the MRT in relation to the MRT’s review of a decision to which item 9 applies, had summoned a person (under paragraph 363(3)(a) of the Migration Act) to appear before the MRT to give evidence, or (under paragraph 363(3)(b)) to produce documents to the MRT; and
• the time for the person to appear before the MRT to give evidence, or to produce the documents to the MRT, in accordance with the summons was after MRT abolition time.
3. In such a case, the summons has effect, for the purposes of the ART’s review of the decision, as if it had been issued under new paragraph 364A(1)(a) or (b) of the Migration Act, and had required the person to appear before the ART to give the evidence, or to produce the documents to the ART, at the time when the person was required to do so with respect to the MRT. New paragraphs 364A(1)(a) and (b) will, upon the commencement of Schedule 14 to this Bill, effectively replace existing paragraphs 363(3)(a) and (b).
1702. Item 22: Modified ART review—continuation of effect of authorisation to take evidence
1. Subitem (1) applies where, immediately before MRT abolition time, a person was authorised under subsection 364(1) of the Migration Act to take evidence on oath or affirmation for the purpose of the MRT’s review of a decision to which item 9 applies. (Subsection 364(1) allows the MRT presiding member to authorise specified persons in writing to take evidence on oath or affirmation on behalf of the MRT.)
2. In such a case:
• the person is taken to have been authorised immediately after MRT abolition time, under new subsection 364(1) as in force at that time, to take evidence on oath or affirmation for the purpose of the ART’s review of a decision; and
• if any limitations were specified under subsection 364(2) by the MRT presiding member in relation to the exercise of the power, the same limitations are taken to have been specified by the presiding member of the ART.
3. Subitem (2) applies where, before MRT abolition time, a person had taken evidence under subsection 364(1) for the purpose of the MRT’s review of a decision to which item 9 applies.
4. In such a case:
• where, by MRT abolition time, the person had not caused a written record of the evidence to be made and sent, or to be sent, to the MRT presiding member, the person must, after MRT abolition time, cause a written record of the evidence to be made and sent, or to be sent, to the presiding member of the ART; and
• where, by MRT abolition time, the person had caused a written record of the evidence to be made and sent to the MRT presiding member, the ART is taken, for the purposes of its review of the decision, to have given the applicant an opportunity to appear before it to give evidence. This will obviate the need for a reappearance.
1703. Item 23: Modified ART review—continuation of effect of directions requiring review to be in private
1. Subitem (1) applies where, before MRT abolition time, the MRT gave a direction under section 365 of the Migration Act in relation to its review of a decision to which item 9 applies:
• that particular oral evidence was to be taken in private; or
• as to the persons allowed to be present when the particular oral evidence was taken in accordance with a direction mentioned above;
and the particular oral evidence had not been taken by MRT abolition time.
2. In such a case, the direction has effect after MRT abolition time as if it had been given immediately after MRT abolition time under new section 365, and had related to the ART’s review of the decision.
3. Subitem (2) applies where, before MRT abolition time, the MRT gave a direction under section 365 of the Migration Act in relation to its review of a decision to which item 9 applies:
• that oral evidence for the purposes of the review was to be taken in private; or
• as to the persons allowed to be present when oral evidence was taken in accordance with a direction mentioned above.
4. In such a case, the direction has effect after MRT abolition time as if it had been given immediately after MRT abolition time under new section 365, and had related to the ART’s review of the decision.
1704. Item 24: Modified ART review—continuation of permission to allow appearance by telephone etc.
1. This item applies where, before MRT abolition time, in relation to its review of a decision to which item 9 applies, the MRT had allowed the applicant to appear, or allowed the applicant or another person to appear or give evidence, by one of the means listed in subsection 366(1) of the Migration Act (that is, by telephone, closed-circuit television or other means of communication) and that appearance or giving of evidence had not taken place by MRT abolition time.
2. In such a case, the ART is taken, for the purposes of its review of the decision, to have allowed, immediately after MRT abolition time under new subsection 366(1), the relevant appearance or giving of evidence to be by the same means as allowed by the MRT.
1705. Item 25: Modified ART review—continuation of appointment of interpreter
1. This item applies where, before MRT abolition time, in relation to its review of a decision to which item 9 applies, the MRT had appointed an interpreter under section 366C of the Migration Act for the purposes of communication between the MRT and a person.
2. In such a case, the ART is taken to have appointed the interpreter, immediately after MRT abolition time, under new section 366C, for the purposes of communication between the ART and the person in relation to the ART’s review of the decision.
1706. Item 26: Modified ART review—continuation of extension of period for completing certain reviews
1. This item is intended to ensure that parties to certain reviews for which the MRT extended the time for making its decision are not disadvantaged by the transition from the MRT to the ART.
2. This item applies where:
• before MRT abolition time, the MRT had extended, under subsection 367(2) of the Migration Act, the period within which it must make and notify its decision on review of a decision to which item 9 applies (section 367 requires the MRT to give its decisions on certain reviews within a prescribed period but allows the MRT to extend that period under subsection (2) with the applicant’s consent); and
• by MRT abolition time, that period as extended (extended period) had not ended; and
• the period prescribed for the purposes of new section 366E (which replaces existing section 367 and requires the ART to give its decisions on certain reviews within a prescribed period) in relation to the ART’s review of the decision ends before the end of the extended period.
3. In such a case, the ART is taken, immediately after MRT abolition time, under new section 366E, to have extended the relevant period under that section until the end of extended period. (New section 366E allows the ART, with the applicant’s consent, to extend the period within which it must make and notify its decision on certain reviews).
1707. Item 27: Modified ART review—continuation of effect of certificates by Minister for Immigration and Multicultural Affairs
1. This item applies where, before MRT abolition time, the Minister for Immigration and Multicultural Affairs issued a certificate under section 375, 375A or 376 of the Migration Act in relation to the review by the MRT of a decision to which item 9 applies.
2. In such a case, the certificate has effect, after MRT abolition time, as if it had been issued after MRT abolition time under the new section 375, 375A or 376 as in force at that time, and related to the ART’s review of the decision.
3. Certificates issued under section 375, 375A or 376 of the Migration Act protect certain information and matters from disclosure. The new Part 5 of the Migration Act continues these provisions but now applies them in respect of all Part 5 reviewable decisions (that is, decisions currently reviewable by the MRT, the RRT and the AAT).
1708. Item 28: Modified ART review—continuation of pre-MRT abolition directions restricting publication
1. This item applies where, immediately before MRT abolition time, a direction under subsection 378(1) of the Migration Act was in force in relation to a decision to which item 9 applies. Subsection 378(1) empowers the MRT to make written directions to prevent or restrict the publication of evidence, information or documents given to it where satisfied that this is in the public interest.
2. In such a case, section 378 of the Migration Act as in force immediately before MRT abolition time continues to apply to the direction, despite the amendments made by this Bill.
1709. Item 29: Modified ART review—need for efficiency etc.
1. This item is designed to ensure the efficient transition from review by the MRT to review by the ART.
2. Subitem (1) imposes a duty on the ART to ensure that, in conducting its review of a decision to which item 9 applies, the transition from review by the MRT takes place as efficiently as possible, having regard to the objects set out in clause 3 of the ART Bill, other than paragraph 3(d). Paragraph 3(d) of the ART Bill, relating to the object of reviewing decisions in a non-adversarial way, does not apply in all circumstances under the new Part 5 of the Migration Act (see new subsection 353A(5)). This will enable adversarial procedures to still apply in character reviews, for example, which maintains the status quo.
3. Subitem (2), in particular, requires the ART to have regard to all evidence and documents relating to review by the MRT that are transferred to the ART in accordance with item 3.
4. Subitem (3) is intended to clarify that, if:
• when the decision was under review by the MRT, persons appeared before the MRT to give evidence and present arguments on the issues arising in relation to the decision; and
• the ART does not allow the persons to appear before the ART to give the same evidence or present the same arguments;
this cannot form the basis of a ground for review by the Federal Court (under Part 8 of the Migration Act or otherwise) of any decision made, or any other thing done, by the ART. This is intended to obviate the need to rehear matters where there was an appearance pre-ART, but no decision was given prior to the commencement of the ART.
1. This Part:
• preserves the effect of decisions made on review by the MRT;
• requires the ART to furnish statements of reasons for certain decisions given by the MRT;
• preserves certain appeals in progress and rights to appeal; and
• makes certain other transitional and savings provisions made necessary by the establishment of the ART and the abolition of the MRT.
1711. Item 30: Preservation of effect of MRT decisions
1. This item preserves the effect of decisions of the MRT after MRT abolition time which were made under section 349 of the Migration Act.
1712. Item 31: Preservation of requirement to give statement of reasons for MRT decision
1. This item requires the ART to give the review applicant and the Secretary a statement of reasons for a decision by the MRT within 14 days of the commencement of the item if, before MRT abolition time, the MRT had made its decision and was required by section 368B of the Migration Act to hand down the decision but had not done so by MRT abolition time.
2. If the MRT had already prepared a statement under subsection 368(1) of the Migration Act before MRT abolition time, it is that statement which the ART must give to the applicant and the Secretary.
3. If a statement had not been prepared, the ART must prepare a statement of the kind required by current subsection 368(1) and give it to the applicant and the Secretary in accordance with new subsection 368(3) of the Migration Act. New subsection 368(3) requires the written statement of the decision prepared by the ART to be given to the review applicant and the Secretary by one of the methods prescribed by new section 379A or 379B respectively.
4. In addition, this item provides that if the MRT had made its decision before MRT abolition time, and was required under either:
• subsection 368B(6) or (7) of the Migration Act (applicant or Secretary unable to attend handing down of decision—non-attendee to be given copy of reasons within 14 days); or
• subsection 368D(1) of the Migration Act (oral decision only—applicant and Secretary to be given copy of written reasons within 14 days);
to give a copy of its statement of reasons, but had not done so by MRT abolition time, the ART must give the copy within 14 days of the commencement of this item.
1713. Item 32: Preservation of MRT requirement for decision-maker to reconsider a decision or matter
1. This item continues the requirement for certain decisions and matters to be reconsidered by the primary decision maker where the MRT has, before MRT abolition time, remitted such a decision or matter for reconsideration under paragraph 349(2)(c) of the Migration Act and the decision or matter has not been reconsidered by MRT abolition time.
1714. Item 33: Preservation of Minister’s power to substitute more favourable decision
1. This item continues the Minister’s discretionary intervention power, under section 351 of the Migration Act, to substitute for a decision of the MRT under section 349 of that Act a decision more favourable to the applicant. This will ensure that, in respect of transitional cases, the Minister can exercise his or her discretion to substitute a more favourable decision than that of the MRT, even if the Minister has not done so by MRT abolition time.
1715. Item 34: Preservation of offence of disclosing confidential information
1. This item provides that, despite the amendments made by this Bill, section 377 of the Migration Act continues to apply to information or documents obtained before MRT abolition time. Section 377 currently provides that:
• it is an offence for specified persons connected with the MRT to record, divulge or communicate (directly or indirectly) certain information or documents except in specified circumstances; and
• such persons cannot be required to produce, divulge or communicate to a court any document to which the section applies (except where it is necessary to do so for the purposes of carrying into effect the provisions of the Migration Act).
2. The section will ensure that the control over the disclosure of confidential information received by the MRT continues after ART commencement.
1716. Item 35: Preservation of Federal Court application rights and reviews in progress
1. This item preserves certain rights to apply for review of a decision of the MRT to the Federal Court and preserves other appeals already in progress prior to MRT abolition time. It does this by providing that Part 8 of the Migration Act continues to apply, with specified modifications. In particular, the power of the Federal Court to refer a matter for further consideration is a power to refer the matter to the ART, and, if any such order is made, Part 5 of the Migration Act as in force immediately after MRT abolition time applies to the ART’s further consideration. Any power the Federal Court would have had to require the MRT to do any thing is instead a power to require the ART to do the thing.
1717. Item 36: Preservation of other review application rights and reviews in progress
1. This item preserves the right to make an application, after MRT abolition time, to a court (other than under the Migration Act) for review of an MRT matter, and provides that any such application is, subject to the modifications made by subitem (3), to be heard and determined in the same way as it would if the amendments made by this Bill to the Migration Act had not been made.
2. This item also provides that if an application had been made before MRT abolition time to a court (other than under the Migration Act) for review of an MRT matter and the court had not heard and determined the application before that time, then, subject to the modifications made by subitem (3), the application is to be heard and determined in the same way as it would if the amendments made by this Bill to the Migration Act had not been made.
3. The modifications made by subitem (3) are:
• any power of the court to refer the matter for further consideration to the MRT is instead a power to refer the matter to the ART; and
• Part 5 of the Migration Act as in force immediately after MRT abolition time applies to the ART’s further consideration; and
• any other power that the court would have had to require the MRT to do any thing, is instead a power to require the ART to do the thing.
1. This Division defines key terms used in this Part.
1. This item defines a number of terms for the purposes of this Part. Of particular importance are the following definitions:
• ‘ART’ means the Administrative Review Tribunal established by the ‘ART Act’ which, in turn, is defined to mean the ART Bill;
• ‘RRT’ means the Refugee Review Tribunal established by Division 9 of Part 7 of the Migration Act, as in force immediately before RRT abolition time; and
• RRT abolition time means the time when Schedule 14 to this Bill (dealing with the amendments of the migration legislation) commences. That Schedule will commence on the date that Parts 4 to 10 of the ART Bill commence (see paragraph 5 of this memorandum).
1. This Division provides for RRT members to be taken to be appointed to the ART for a period of 12 months after RRT abolition time. This will help to ensure that, in the transition to the ART for the migration merits review workload, review decision-making continues with minimal disruption.
1722. Item 38: Deemed appointment of RRT members as ART members
1. Subitem (1) provides that a person who was a member of the RRT immediately before RRT abolition time is taken to be appointed, from that time, as a member of the ART.
2. Subitem (2) provides that such a person is taken to have been appointed, for a period of 12 months, to the IRD of the ART as a member who is not an executive or senior member.
1. This Division makes provision for the transfer to the ART of certain material in the possession of the RRT immediately before RRT abolition time, and for the return by the Federal Court of certain documents to the ART instead of the RRT.
1724. Item 39: Transfer of records and documents
1. This item makes provision for the transfer to the ART of any evidence, records, documents or other things relating to the RRT’s review of decisions and in possession of the RRT immediately before RRT abolition time. This item then links to item 62 which provides that the ART must, in conducting its review of ‘transitional applications for review’, have regard to all evidence, records, documents or other things relating to the RRT’s review of the decision that have been transferred to it.
1725. Item 40: Return of documents by Federal Court
1. This item provides that any documents which may be in the possession of the Federal Court immediately before RRT abolition time, and which would be required to be returned to the RRT, must be returned to the ART instead. The item also enables the President of the ART to return such documents to the person who gave them to the RRT.
1. This Division provides for the final annual report of the RRT to be provided by the President of the ART.
1. This item requires the President of the ART to give, as soon as practicable after RRT abolition time, a report on the RRT’s activities during the period since 30 June 2000, to the Minister for Immigration and Multicultural Affairs. The report is for presentation to the Parliament and must be prepared in accordance with guidelines approved on behalf of the Parliament by the Joint Committee of Public Accounts and Audit.
1. This Division preserves a person’s right to receive notice of reviewable decisions (and of relevant review rights) made before RRT abolition time.
1729. Item 42: Notice of pre-RRT abolition time decision and review rights
1. This item provides that the notification provisions in new sections 339A (notification of decisions) and 340 (notification of review rights) of the Migration Act apply in relation to a decision made before RRT abolition time only if notice of that decision had not already been given under the notification provisions in force before RRT abolition time (that is, sections 66 and 127 of the Migration Act as in force before RRT abolition time). This will obviate the need to renotify decisions made prior to the ART’s commencement, while at the same time ensuring that where no such notification has been given, the item will require that notice of the decision, including reasons (new section 339A), together with notice of the review rights relating to that decision (new section 340) is given.
1. This Division provides for applications to be made to the ART for review of certain decisions made before RRT abolition time.
1731. Item 43: Applications for ART review of pre-RRT abolition time decisions reviewable by RRT to be made in certain cases only
1. This item provides that, after RRT abolition time, an application for ART review of a decision made before RRT abolition time which could have been reviewed by the RRT can only be made in accordance with this Part. This has the effect of subjecting such applications to the provisions of this Part, which, for the most part, will apply the provisions of the new Part 5 of the Migration Act (Schedule 14 to this Bill).
1732. Item 44: Applications for ART review of pre-RRT abolition time decisions reviewable by RRT where time limit has not expired
1. This item provides that a person who, being entitled to do so, had not made an application for RRT review before RRT abolition time is entitled, after that time, to make an application for ART review, provided the person makes the application before the end of the period within which the RRT application would have had to be made. The time within which to make an application will not start again on commencement of the ART.
1. This Division provides for the ART to conduct reviews of certain decisions made before RRT abolition time where applications for review had been made to the RRT. The Division also makes provision for other related matters.
1734. Item 45: ART to conduct review where application for RRT review properly made but no RRT decision made
1. This item applies where, before RRT abolition time, a person had properly made an application to the RRT for review of a decision and the RRT had not made its decision on the application before RRT abolition time.
2. In such a case, subject to the exceptions highlighted in the remainder of this Part, the new Part 5 of the Migration Act as in force after RRT abolition time applies to the application as if it were an application for review by the ART of a reviewable protection visa decision (the new name for an RRT-reviewable decision) that:
• complied with the requirements of new sections 344, 346, 346A and 347 (relating to standing, form, fee and time limits for applying for ART review) of the Migration Act; and
• was made to the ART at the time when it was made to the RRT.
1735. Item 46: Modified ART review—constitution of ART
1. This item applies for the purposes of the ART’s review of a decision to which item 45 applies.
2. In such a case, the President is taken to have given, immediately after RRT abolition time, a direction under subsection 354(2) of the Migration Act that the member who constituted the RRT for the particular review is to constitute the ART. Where the RRT member does not continue as a member of the ART, the ART is to be constituted, in accordance with a written direction of the President or the executive member of the IRD, under new subsection 354(2).
1736. Item 47: Modified ART review where pre-RRT abolition time notice of application given
1. This item provides that:
if, before RRT abolition time:
then, after RRT abolition time:
• notice of the application for RRT review of a decision to which item 45 applies was given to the Secretary in accordance with subsection 418(1) of the Migration Act;
• new section 347B of the Migration Act does not apply in relation to the ART’s review, but the new Part 5 applies as if the notice of the application had been given under that section and had related to the review;
• a requirement had arisen under subsection 418(2) for the Secretary to give copies of a statement to the Registrar of the RRT, but that obligation had not been complied with by RRT abolition time;
• the requirement to give the copies continues, but is instead a requirement to give them to the Chief Executive Officer of the ART;
• a requirement had arisen under subsection 418(3) for the Secretary to give documents or parts of documents to the Registrar of the RRT, but that obligation had not been complied with by RRT abolition time;
• the requirement to give the documents or parts of documents continues, but is instead a requirement to give them to the Chief Executive Officer of the ART, and, if the documents are given, Part 5 applies as if they were given under section 347C of the Act;
• the Secretary gave documents or parts of documents to the Registrar of the RRT in accordance with subsection 418(3);
• new subsection 347C(1) of the Migration Act does not apply in relation to the ART’s review, but the new Part 5 applies as if the documents or parts of documents had been given to the ART under that subsection and had related to that review.
1737. Item 48: Modified ART review—continuation of invitations to give additional information or comment etc.
1. This item applies where, before RRT abolition time, a person was invited under sections 424, 424A or 425 of the Migration Act to give additional information, to comment on information, or to appear before the RRT to give evidence and present arguments, respectively, and by RRT abolition time the person had not done so.
2. In such circumstances, the invitation has effect after RRT abolition time as if it had been given under new sections 359, 359A or 361, respectively, and had related to the ART’s review.
1738. Item 49: Modified ART review—continuation of non-appearance requirement
1. This item provides that where, before RRT abolition time, an applicant for RRT review of a decision to which item 45 applies was, because of subsection 425(3) of the Migration Act, not entitled to appear before the RRT, the applicant is similarly not entitled to appear before the ART in relation to the ART’s review of the decision.
2. Pursuant to subsection 425(3), a person is not entitled to appear before the RRT where:
• the RRT considers that it should decide the review in the applicant’s favour ‘on the papers’; or
• the applicant consents to the RRT deciding the review without the applicant appearing before it; or
• the applicant is invited to give additional information or comment on information and does not do so within specified time limits.
1739. Item 50: Modified ART review where pre-RRT abolition time invitation to appear
1. This item applies where, before RRT abolition time, the RRT had given notice under section 425A (notice of invitation to appear) to the applicant for review of a decision to which item 45 applies and the time specified in the notice had not passed by ART abolition time.
2. In such a case, for the purposes of the ART’s review of the decision:
• sections 426 (applicant may request Tribunal to call witnesses) and 426A (failure of applicant to appear before Tribunal), as in force immediately before RRT abolition time, have effect after RRT abolition time in relation to the notice as if they had not been repealed or amended by this Bill; and
• new section 361B (applicant may request Tribunal to call witnesses) and new section 362B as in force after RRT abolition time do not apply in relation to the applicant.
3. Section 426A currently allows the RRT to make a decision on the review without taking further action to allow or enable the applicant to appear where the applicant fails to appear at a scheduled hearing. On commencement of Schedule 14 to this Bill, section 362B will enable the ART to end the review without making a decision where the applicant fails to appear, in addition to the existing provision which enables the Tribunal to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. Item 50 ensures that the status quo is preserved for transitional cases where the applicant fails to appear at a hearing scheduled by the RRT: that is, the new power to end the review without making a decision will not be available in these cases.
1740. Item 51: Modified ART review—continuation of requirement where applicant wishes witnesses etc. to be called
1. This item applies where:
• before RRT abolition time, the RRT was required to have regard to a notice by the applicant to the Tribunal to obtain oral evidence from a person or persons named in relation to the RRT’s review of a decision to which item 45 applies (see subsection 426(3)); and
• by RRT abolition time, the RRT had not complied with the notice.
2. In such a case, the ART must, in its review of the decision, also have regard to the notice, but is not required to comply with it. This allows the ART the flexibility to decide to obtain the evidence sought by the applicant, or to decide not to obtain that evidence.
1741. Item 52: Modified ART review—continuation of effect of failure of applicant to appear before RRT
1. This item applies where:
• before RRT abolition time, the RRT was entitled under subsection 426A(1) of the Migration Act to make a decision on its review of a decision to which item 45 applies without taking any further action to allow or enable the applicant for review to appear before it; and
• by RRT abolition time, the RRT had not made such a decision.
2. In such a case, for the purposes of the ART’s review of the decision:
• section 426A (failure of applicant to appear before Tribunal), as in force immediately before RRT abolition time, has effect after RRT abolition time in relation to the review as if it had not been repealed or amended by this Bill; and
• new section 362B as in force after RRT abolition time does not apply in relation to the applicant.
3. Section 426A currently allows the RRT to make a decision on the review without taking further action to allow or enable the applicant to appear where the applicant fails to appear at a scheduled hearing. On commencement of Schedule 14 to this Bill, new section 362B will enable the ART to end the review without making a decision where the applicant fails to appear, in addition to the existing provision which enables the Tribunal to make a decision on the review without taking further action to allow or enable the applicant to appear before it. Item 52 ensures that the status quo is preserved for transitional cases where the applicant fails to appear at a hearing scheduled by the RRT: that is, the new power to end the review without making a decision will not be available in these cases.
1742. Item 53: Modified ART review—continuation of adjournment
1. This item provides that if, before RRT abolition time, the RRT had adjourned its review of a decision to which item 45 applies to a time after RRT abolition time, then the ART must not commence its review of that decision before the expiration of the adjournment time.
1743. Item 54: Modified ART review—continuation of requirement for investigation
1. This item applies where:
• before RRT abolition time, the RRT had, under paragraph 427(1)(d) of the Migration Act, required the Secretary to arrange for the making of an investigation or a medical examination and to report to the RRT; and
• by RRT abolition time, the investigation or examination had not commenced or been completed or it had been completed but the report about the investigation or examination had not been commenced, completed or given to the RRT.
2. In such a case, the Secretary must, with respect to the ART’s review of the decision, arrange for the investigation, examination or report (as the case may be) to be commenced, completed or given to the ART, as the case requires.
1744. Item 55: Modified ART review—continuation of combined reviews
1. This item provides that where the review by the RRT of two or more decisions to which item 45 applies were combined (under subsection 427(2) of the Migration Act), the ART must combine its review of those decisions.
1745. Item 56: Modified ART review—continuation of effect of summons
1. This item is intended to ensure that certain summonses issued by the RRT to give evidence or produce documents continue to have effect after RRT abolition time.
2. This item applies where:
• before RRT abolition time, the RRT in relation to the RRT’s review of a decision to which item 45 applies, had summoned a person (under paragraph 427(3)(a) of the Migration Act) to appear before the RRT to give evidence, or (under paragraph 427(3)(b)) to produce documents to the RRT; and
• the time for the person to appear before the RRT to give evidence, or to produce the documents to the RRT, in accordance with the summons was after RRT abolition time.
3. In such a case, the summons has effect, for the purposes of the ART’s review of the decision, as if it had been issued under new paragraph 364A(1)(a) or (b) of the Migration Act, and had required the person to appear before the ART to give the evidence, or to produce the documents to the ART, at the time when the person was required to do so with respect to the RRT. New paragraphs 364A(1)(a) and (b) will, upon commencement of Schedule 14 to this Bill, effectively replace existing paragraphs 427(3)(a) and (b).
1746. Item 57: Modified ART review—continuation of effect of authorisation to take evidence
1. Subitem (1) applies where, immediately before RRT abolition time, a person was authorised under subsection 428(1) of the Migration Act to take evidence on oath or affirmation for the purpose of the RRT’s review of a decision to which item 45 applies. (Subsection 428(1) allows the RRT to authorise specified persons in writing to take evidence on oath or affirmation on behalf of the RRT).
2. In such a case:
• the person is taken to have been authorised immediately after RRT abolition time, under new subsection 364(1), to take evidence on oath or affirmation for the purpose of the ART’s review of a decision; and
• if any limitations were specified under subsection 428(2) by the RRT in relation to the exercise of the power, the same limitations are taken to have been specified by the presiding member of the ART.
3. Subitem (2) applies where, before RRT abolition time, a person had taken evidence under subsection 428(1) for the purpose of the RRT’s review of a decision to which item 45 applies.
4. In such a case:
• where, by RRT abolition time, the person had not caused a written record of the evidence to be made and sent, or to be sent, to the member of the RRT, the person must, after RRT abolition time, cause a written record of the evidence to be made and sent, or to be sent, to the presiding member of the ART; and
• where, by RRT abolition time, the person had caused a written record of the evidence to be made and sent to the RRT member, the ART is taken, for the purposes of its review of the decision, to have given the applicant an opportunity to appear before it to give evidence. This will obviate the need for a reappearance.
1747. Item 58: Modified ART review—continuation of permission to allow appearance by telephone etc.
1. This item applies where, before RRT abolition time, in relation to its review of a decision to which item 45 applies, the RRT had allowed the applicant to appear, or allowed the applicant or another person to appear or give evidence, by one of the means listed in section 429A (that is, by telephone, closed-circuit television or other means of communication) and that appearance or giving of evidence had not taken place by RRT abolition time.
2. In such a case, the ART is taken, for the purposes of its review of the decision, to have allowed, immediately after RRT abolition time under new subsection 366(1), the relevant appearance or giving of evidence to be by the same means as allowed by the RRT.
1748. Item 59: Modified ART review—continuation of direction about communication through an interpreter
1. This item applies where, before RRT abolition time, in relation to its review of a decision to which item 45 applies, the RRT had made a direction under subsection 427(7) that communication with a person appearing before the RRT proceed through an interpreter.
2. In such a case, the direction continues in force for the purposes of communication with that person in relation to the ART’s review of the decision.
1749. Item 60: Modified ART review—continuation of effect of certificates by Minister for Immigration and Multicultural Affairs
1. This item applies where, before RRT abolition time, the Minister for Immigration and Multicultural Affairs issued a certificate under section 437 or 438 of the Migration Act in relation to the review by the RRT of a decision to which item 45 applies.
2. In such a case, the certificate has effect, after RRT abolition time, as if it had been issued after RRT abolition time under new section 375 or 376, and related to the ART’s review of the decision.
3. Certificates issued under section 437 or 438 of the Migration Act protect certain information and matters from disclosure. The new Part 5 of the Migration Act continues sections 375 and 376, which have the same effect, in relation to the MRT, as sections 437 and 438 have in respect of the RRT, but extend them to apply to all Part 5 reviewable decisions (that is, decisions currently reviewable by the MRT, the RRT and the AAT).
1750. Item 61: Modified ART review—continuation of pre-RRT abolition directions restricting publication
1. This item applies where, immediately before RRT abolition time, a direction under subsection 440(1) of the Migration Act was in force in relation to a decision to which item 45 applies. Subsection 440(1) empowers the RRT to make written directions to prevent or restrict the publication of evidence, information or documents given to it where it is satisfied that this is in the public interest.
2. In such a case, section 440 of the Migration Act as in force immediately before RRT abolition time continues to apply to the direction, despite the amendments made by this Bill.
1751. Item 62: Modified ART review—need for efficiency etc.
1. This item is designed to ensure the efficient transition from review by the RRT to review by the ART.
2. Subitem (1) imposes a duty on the ART to ensure, in conducting its review of a decision to which item 45 applies, the transition from review by the RRT takes place as efficiently as possible, having regard to the objects set out in clause 3 of the ART Bill, other than paragraph 3(d). Paragraph 3(d) of the ART Bill, relating to the object of reviewing decisions in a non-adversarial way, does not apply in all circumstances under the new Part 5 of the Migration Act (see new subsection 353A(5)). This will enable adversarial procedures to still apply in character reviews, for example, which maintains the status quo.
3. Subitem (2), in particular, requires the ART to have regard to all evidence and documents relating to review by the RRT that are transferred to the ART in accordance with item 39.
4. Subitem (3) is intended to clarify that, if:
• when the decision was under review by the RRT, persons appeared before the RRT to give evidence and present arguments on the issues arising in relation to the decision; and
• the ART does not allow the persons to appear before the ART to give the same evidence or present the same arguments;
this cannot form the basis of a ground for review by the Federal Court (under Part 8 of the Migration Act or otherwise) of any decision made, or any other thing done, by the ART. This is intended to obviate the need to rehear matters where there was an appearance prior to the commencement of the ART.
1. This Part:
• preserves the effect of decisions made on review by the RRT;
• requires the ART to furnish statements of reasons for certain decisions given by the RRT;
• preserves certain appeals in progress and rights to appeal; and
• makes certain other transitional and savings provisions made necessary by the establishment of the ART and the abolition of the RRT.
1753. Item 63: Preservation of effect of RRT decisions
1. This item preserves the effect of decisions of the RRT after RRT abolition time which were made under section 415 of the Migration Act.
1754. Item 64: Preservation of requirement to give statement of reasons for RRT decision
1. This item requires the ART to give the review applicant and the Secretary a statement of reasons for a decision by the RRT within 14 days of the commencement of the item if, before RRT abolition time, the RRT had made its decision and was required by section 430B of the Migration Act to hand down the decision but had not done so by RRT abolition time.
2. If the RRT had already prepared a statement under subsection 430(1) of the Migration Act before RRT abolition time, it is that statement which the ART must give to the applicant and the Secretary.
3. If a statement had not been prepared, the ART must prepare a statement of the kind required by current subsection 430(1) and give it to the applicant and the Secretary in accordance with new subsection 368A(3) of the Migration Act. New subsection 368A(3) requires the written statement of the decision prepared by the ART to be given to the review applicant and the Secretary by one of the methods prescribed by new sections 379A or 379B respectively.
4. In addition, this item provides that if the RRT had made its decision before RRT abolition time, and was required under either:
• subsection 430B(6) or (7) of the Migration Act (applicant or Secretary unable to attend handing down of decision—non-attendee to be given copy of reasons within 14 days); or
• 430D(1) of the Migration Act (oral decision only—applicant and Secretary to be given copy of written reasons within 14 days);
to give a copy of its statement of reasons, but had not done so by RRT abolition time, the ART must give the copy within 14 days of the commencement of this item.
1755. Item 65: Preservation of RRT requirement for decision-maker to reconsider a decision or matter
1. This item continues the requirement for certain decisions and matters to be reconsidered by the primary decision maker where the RRT has, before RRT abolition time, remitted such a decision or matter for reconsideration under paragraph 415(2)(c) of the Migration Act and the decision or matter has not been reconsidered by RRT abolition time.
1756. Item 66: Preservation of Minister’s power to substitute more favourable decision
1. This item continues the Minister’s discretionary intervention power, under section 417 of the Migration Act, to substitute for a decision of the RRT under section 415 of that Act a decision more favourable to the applicant. This will ensure that, in respect of transitional cases, the Minister can exercise his or her discretion to substitute a more favourable decision than that of the RRT, even if the Minister may not have done so by RRT abolition time.
1757. Item 67: Preservation of offence of disclosing confidential information
1. This item provides that, despite the amendments made by this Bill, section 439 of the Migration Act continues to apply to information or documents obtained before RRT abolition time. Section 439 currently provides that:
• it is an offence for specified persons connected with the RRT to record, divulge or communicate (directly or indirectly) certain information or documents except in specified circumstances; and
• such persons cannot be required to produce, divulge or communicate to a court any document to which the section applies (except where it is necessary to do so for the purposes of carrying into effect the provisions of the Migration Act).
2. The section will ensure that the control over the disclosure of confidential information received by the RRT pre ART continues after ART commencement.
1758. Item 68: Preservation of Federal Court application rights and reviews in progress
1. This item preserves certain rights to apply for review of a decision of the RRT to the Federal Court and preserves appeals already in progress prior to RRT abolition time. It does this by providing that Part 8 of the Migration Act continues to apply, with specified modifications. In particular, the power of the Federal Court to refer a matter for further consideration is a power to refer the matter to the ART, and, if any such order is made, Part 5 of the Migration Act as in force immediately after RRT abolition time applies to the ART’s further consideration. Any power the Federal Court would have had to require the RRT to do any thing is instead a power to require the ART to do the thing.
1759. Item 69: Preservation of other review application rights and reviews in progress
1. This item preserves the right to make an application, after RRT abolition time, to a court (other than under the Migration Act) for review of an RRT matter, and provides that any such application is, subject to the modifications made by subitem (3), to be heard and determined in the same way as it would if the amendments made by this Bill to the Migration Act had not been made.
2. This item also provides that if an application had been made before RRT abolition time to a court (other than under the Migration Act) for review of an RRT matter and the court had not heard and determined the application before that time, then, subject to the modifications made by subitem (3), the application is to be heard and determined in the same way as it would if the amendments made by this Bill to the Migration Act had not been made.
3. The modifications made by subitem (3) are:
• any power of the court to refer the matter for further consideration to the RRT is instead a power to refer the matter to the ART; and
• Part 5 of the Migration Act as in force immediately after RRT abolition time applies to the ART’s further consideration; and
• any other power that the court would have had to require the RRT to do any thing, is instead a power to require the ART to do the thing.
1. This Schedule makes provision for the transition from the SSAT to the ART. Review by the SSAT of decisions under the social security and family assistance law is provided for by the Social Security (Administration) Act 1999 (SS (Administration) Act) and the A New Tax System (Family Assistance) (Administration) Act 1999 (FA (Administration) Act).
1. This Part defines key terms used in this Schedule.
1. This item defines a number of terms used in this Schedule. Importantly, SSAT abolition time means the time at which the SSAT is repealed by Schedule 10 to this Bill.
2. This item also provides that, for the purposes of this Schedule, any references to the ART Bill or a provision in that Bill are to be read as incorporating the amendments made by Schedules 10 to 13 and this Schedule to the ART (CTP) Bill.
1. This Part makes provision for the transfer to the ART of certain records, documents and other things in the possession of the SSAT, the Federal Court and the Federal Magistrates Court immediately before SSAT abolition time. It also allows the President of the new Tribunal to return certain documents to a person who originally gave them to the SSAT.
1764. Item 2: Transfer of records and documents
1. Records, documents and other things relating to the review of ‘SSAT reviewable’ decisions by the SSAT that are in the possession of the SSAT immediately before SSAT abolition time are to be transferred to the ART. (‘SSAT reviewable decision’ is defined in item 1.) This provision, however, does not apply to records, documents or other things that belong to another body.
2. In relation to social security matters, it is normal practice for the relevant Centrelink file to be provided to the SSAT in meeting the obligation to provide the SSAT with relevant documents to an appeal. The SSAT then takes copies of the relevant documents from the file for the purposes of the hearing. In this situation, this item provides for the transfer to the ART of the copied documents that are in the ‘possession’ of the SSAT and allows for the return of the subject file to its ‘owner’, Centrelink.
1765. Item 3: Return of documents by Courts
1. Documents that the Federal Court and the Federal Magistrates Court have immediately before SSAT abolition time that those Courts would have been required to return to the SSAT are to be transferred to the ART at the time those Courts would otherwise have had to return them to the SSAT.
2. The President of the ART may return these documents to the person who gave them to the SSAT.
1. This Part provides for the final annual report of the SSAT.
1. As soon as practicable after SSAT abolition time, the President of the ART must give the Minister for Family and Community Services a report on the activities of the SSAT during the period since the end of the financial year in respect of which the Executive Director of the SSAT last prepared a report in accordance with item 25 of Schedule 3 to the SS (Administration) Act.
2. Consistent with current annual reporting arrangements for the SSAT, the Minister is then required to cause the report to be laid before each House of the Parliament within 15 sitting days after the Minister receives the report.
1. This Part provides for applications to be made to the new Tribunal under clause 61 of the ART Bill for first-tier review of SSAT reviewable decisions.
2. The term ‘SSAT reviewable decision’ is defined in item 1 of this Schedule to mean any decision made before SSAT abolition time where, at any time before SSAT abolition time, applications could be made to the SSAT for review of the decision.
1769. Item 5: Applications for ART review of SSAT reviewable decisions to be made in certain cases only
1. This item sets out the situations in which a person can apply under clause 61 of the ART Bill for review of an SSAT reviewable decision after SSAT abolition time.
2. The general rule is that a person may apply for ART review of an SSAT reviewable decision at any time after SSAT abolition time if the person is entitled to do so. The concept of being ‘entitled to do so’ brings into play provisions in the social security and family assistance laws that allow a person to apply for SSAT review of certain decisions in specified circumstances. For example, section 142 of the SS (Administration) Act outlines the situations in which a person can apply for SSAT review. One such situation is where the Secretary to the Department of Family and Community Services (Secretary), the Chief Executive Officer of the Commonwealth Services Delivery Agency or an authorised review officer has already reviewed the decision under section 126 or 135 of that Act.
3. This general rule will not apply where there is a time limit on applying for SSAT review (this issue is dealt with by item 6 below) or where the person has already applied for SSAT review of the decision.
1770. Item 6: Applications for ART review of SSAT reviewable decisions where time limit applies
1. Section 111A of the FA (Administration) Act requires a person to apply for SSAT review of certain decisions no later than 13 weeks after the person is notified of the decision. This provision does not apply to decisions relating to the payment of family tax benefit by instalment or to debt recovery decisions.
2. This item deals with the situation where section 111A applies to an SSAT reviewable decision, the 13 week time limit has not expired before SSAT abolition time and a person who is entitled to seek review of the decision has not done so before SSAT abolition time. This item ensures that the person continues to be subject to the requirement to apply for ART review no later than 13 weeks after notification of the decision.
3. This item also allows the new Tribunal to extend the time limit if it is reasonable in the circumstances to do so.
1. This Part provides for the ART to conduct reviews of certain decisions made before SSAT abolition time where applications for review had been made to the SSAT. This Part also makes provision for other related matters.
1772. Item 7: ART to conduct first-tier review where application for SSAT review validly made but no SSAT decision made etc.
1. This item applies where a person validly applies for review of an ‘SSAT reviewable decision’ (see item 1) before SSAT abolition time and the application has not been determined or dismissed by SSAT abolition time.
2. Where this happens, and subject to the remaining provisions of this Part, the ART Bill and any other Act relating to review under the ART Bill apply in relation to the application as if the application were an application for first-tier review of the decision by the new Tribunal that complied with the requirements of Division 2 of Part 9 of the ART Bill and that was made immediately after SSAT abolition time.
1773. Item 8: Modified ART review—notices and statement of reasons
1. This item provides that clauses 76, 77 and 78 of the ART Bill do not apply in relation to first-tier review by the ART of a decision to which item 7 applies. These clauses in the ART Bill ensure that the Tribunal notifies the decision-maker of any application for review or application for leave to apply for review and that the decision-maker provides the Tribunal with a statement of reasons and other documents relevant to the review.
2. These notification issues are dealt with in the transitional period by reference to existing SSAT rules. These are set out below.
3. If, before SSAT abolition time, the Secretary was required to send a review application to the SSAT and had not done so by the SSAT abolition time, then the Secretary is obliged to send the application to the ART as soon as practicable but no later than 7 days after the requirement arose. When the Tribunal receives the application, the Chief Executive Officer is required to provide written notification to the applicant and Secretary that the application has been received.
4. If, before SSAT abolition time, the Executive Director of the SSAT was required to give the applicant and Secretary written notice that the application has been received by the SSAT and had not done so by the SSAT abolition time, then the Chief Executive Officer of the ART is required to give the notice instead.
5. If, before SSAT abolition time, the Secretary was required to send to the Executive Director of the SSAT a statement of reasons or other document and had not done so by the SSAT abolition time, then the Secretary is obliged to send the statement or document to the ART as soon as practicable but no later than 28 days after the requirement arose.
6. If the Secretary is given notice of the making of an application for review of a decision, the Secretary must send the ART a statement of reasons for the decision and any other relevant documents within 28 days after receiving the notice.
7. These provisions continue the effect of the procedures set out in sections 157 of the SS (Administration) Act and sections 119 of the FA (Administration) Act during the transitional period following the abolition of the SSAT.
1774. Item 9: Modified ART review—pre-SSAT abolition time request to provide information or documents
1. This item deals with the provision of information by the Secretary to the ART in relation to the review of a decision by the Tribunal. It applies in relation to decisions to which item 7 applies.
2. If, before SSAT abolition time, the SSAT asked the Secretary for information relating to the review of a decision and the Secretary has not provided the information by the SSAT abolition time, then the Secretary is obliged to comply with the requirement as soon as practicable but no later than 14 days after the requirement arose.
3. If, before SSAT abolition time, the SSAT asked the Secretary to exercise the Secretary’s power to require another person to provide information to the Secretary and the Secretary has not done so by the SSAT abolition time, then the Secretary is obliged to exercise the power as soon as practicable but no later than 7 days after the requirement arose.
4. These provisions continue the effect of sections 165 and 166 of the SS (Administration) Act and sections 128 and 129 of the FA (Administration) Act during the transitional period following the abolition of the SSAT.
1775. Item 10: Modified ART review—pre-SSAT abolition time parties to become participants
1. This item provides that a person who was a party to certain proceedings before the SSAT before SSAT abolition time becomes a participant in the first-tier review of the decision by the ART. This rule is subject to Division 2 of Part 6 of the ART Bill (other than subclause 84(1) and clause 85) and paragraphs 128(1)(e) and 129(d) and (e) of the ART Bill.
1776. Item 11: Modified ART review—pre-SSAT abolition time right to representation preserved
1. This item preserves, in relation to review by the ART (whether first- or second-tier), and despite clause 105 of the ART Bill, a right to representation that a person had in proceedings before the SSAT before SSAT abolition time.
1777. Item 12: Modified ART review—continuation of effect of pre-SSAT abolition time payment provisions
1. If, immediately before SSAT abolition time, the Secretary made a declaration to continue payment pending the outcome of an SSAT review, then the declaration continues in effect after SSAT abolition time and relates instead to first-tier review by the new Tribunal.
2. This provision continues the effect of section 145 of the SS (Administration) Act and section 112 of the FA (Administration) Act during the transitional period following the abolition of the SSAT.
3. If, immediately before SSAT abolition time, section 147 or 148 of the SS (Administration) Act applied to continue payment pending the outcome of the SSAT review, the provision continues to apply after SSAT abolition time and relates instead to first-tier ART review.
1778. Item 13: Modified ART review—review to be in private
1. This item provides for certain matters before the ART to be conducted in private. It ensures that, for any SSAT matter that has commenced to be heard in private before SSAT abolition time, and which has not concluded before that time, the new Tribunal is to continue to hear the matter in private.
1779. Item 14: Modified ART review—need for efficiency etc.
1. This item is designed to ensure the efficient transition from review by the SSAT to review by the ART.
2. Subitem (1) imposes a duty on the ART to ensure, in conducting reviews, that the transition from review by the SSAT takes place as efficiently as possible, in the light of the objects set out in clause 3 of the ART Bill.
3. Subitem (2), in particular, requires the ART to have regard to all evidence and documents relating to review by the SSAT that are transferred to the new Tribunal.
1. This Part preserves the effect of decisions made on review by the SSAT. It also requires the ART to conclude certain procedures following an SSAT decision, preserves certain appeals in progress and rights to appeal and makes certain other provision.
1781. Item 15: Preservation of effect of SSAT decisions
1. This item preserves the effect, after SSAT abolition time, of decisions of the SSAT under section 149 or 150 of the SS (Administration) Act and section 113 of the FA (Administration) Act.
1782. Item 16: Preservation of requirement for copies of statements etc. to be given
1. This item preserves the procedures set out in section 177 of the SS (Administration) Act and section 141 of the FA (Administration) Act. These procedures operate after the SSAT has made a decision. This item addresses the situation where the SSAT has made a decision before SSAT abolition time but the procedures have not been concluded before this time.
2. If, immediately before SSAT abolition time, the SSAT was required to give a person a statement and has not done so by that time, then the ART is obliged to provide the statement as soon as practicable but no later than 14 days after the requirement arose.
3. If, immediately before SSAT abolition time, the SSAT was required to return a document to the Secretary and has not done so by that time, then the ART is obliged to return the document to the Secretary as soon as practicable.
4. If, immediately before SSAT abolition time, the SSAT was required to provide the Secretary with a copy of a document that contains evidence or material on which the SSAT’s finding of fact are based and has not done so by that time, then the ART is obliged to provide the Secretary with a copy of such a document as soon as practicable.
1783. Item 17: Preservation of requirement for Secretary or Chief Executive Officer to reconsider a decision etc.
1. This item continues the requirement for decisions to be reconsidered by the Secretary or the Chief Executive Officer of the Commonwealth Services Delivery Agency where the SSAT has, before the SSAT abolition time, remitted such a decision for reconsideration and the decision has not been reconsidered before that time.
2. The item also addresses the situation where, before SSAT abolition time, the SSAT has asked the Secretary or Chief Executive Officer of the Commonwealth Services Delivery Agency to assess a rate, amount, limit or percentage and the Secretary or Chief Executive Officer has not done so before that time. In this situation, there is a continuing obligation on the Secretary or Chief Executive Officer after SSAT abolition time to assess the rate, amount, limit or percentage.
1784. Item 18: Preservation of Federal Court and Federal Magistrates Court appeal rights and appeals in progress under the ADJR Act
1. This item preserves the right to make an application, after SSAT abolition time, to the Federal Court or the Federal Magistrates Court under the ADJR Act for review of certain matters. It provides that the ADJR Act continues to apply in relation to the decision of the SSAT despite the abolition of the SSAT.
2. This item also provides that if an application had been lodged, before SSAT abolition time, with the Federal Court or the Federal Magistrates Court under the ADJR Act for review of certain SSAT matters and the Federal Court, the Family Court or the Federal Magistrates Court had not heard and determined the application before that time, then the ADJR Act applies to the application despite the repeal of the SSAT.
3. Subitem (3) makes specific provision with respect to the application of the ADJR Act in accordance with this item.
1785. Item 19: Preservation of other review application rights and reviews in progress
1. This item preserves the right to make an application, after SSAT abolition time, to a court, tribunal, person or authority (other than under the ADJR Act or under the social security or family assistance laws) for review of certain SSAT matters. It provides that any such application is to be heard and determined in the same way as it would be if the SSAT had not been abolished.
2. This item also provides that if such an application has been made before SSAT abolition time and the court etc. had not heard and determined the application before that time, then the application is to be heard and determined in the same way as it would if the SSAT had not been abolished.
3. The rules set out in this item operate subject to subitem (3) that modifies the powers of bodies conducting reviews in progress.
1. Section 20 of the Federal Court of Australia Act 1976 deals with the exercise, by the Federal Court, of its original jurisdiction. This Schedule amends that section in its application to certain specified matters coming before the Court from a tribunal or authority (other than a court) constituted by, or including amongst its members, a judge of a court created by the Parliament, including the Federal Court itself.
2. The amendments made by this Schedule will not apply to matters coming before the Federal Court from the ART unless the Tribunal is constituted by a judge, or includes a judge amongst its members. Note, however, that, unlike the AAT Act, there is no requirement in the ART Bill that the President of the new tribunal—or any other member—be a judge. This is in keeping with the government’s goal of creating an informal, non-legalistic environment in the new tribunal.
1. Subsection 20(1) provides that, except as otherwise provided by that Act or any other Act, the original jurisdiction of the Federal Court of Australia shall be exercised by a single Judge. Subsection 20(1A) gives the Chief Justice of the Federal Court a discretion to direct that the Court’s original jurisdiction be exercised by a Full Court where he or she considers that a matter coming before the Court in its original jurisdiction is of sufficient importance to justify the giving of such a direction.
2. Subsection 20(2) currently provides that the jurisdiction of the Federal Court in a matter coming before it ‘from the tribunal or authority (other than a court) while constituted by, or by members who include, a person who is a Judge of the Court or of another court created by the Parliament shall be exercised by a Full Court’.
1788. Item 1: Subsection 20(2)
1. Subsection 20(2) is made subject to two of the new subsections added by item 3.
1789. Item 2: Subsection 20(2)
1. Subsection 20(2) is amended so that it clearly refers to all tribunals or authorities (other than courts) constituted by, or including amongst its members, a judge.
1790. Item 3: At the end of section 20
1. New subsections are added to section 20, providing that:
• where a specified (interlocutory) application is made to the Court from a tribunal or authority (other than a court) constituted by, or including amongst its members, a judge, the Court’s jurisdiction can now be exercised by a single judge or by a Full Court;
• Rules of Court can be made that allow such applications to be dealt with without an oral hearing, and which prescribe conditions for dealing with such applications in this way;
• a single Judge or a Full Court may exercise specified powers in matters coming before the Court under subsection 20(2); and
• Rules of Court can be made that allow these powers to be exercised without an oral hearing, and which prescribe conditions for the exercise of these powers in this way.
1. The amendments above are to apply to matters coming before the Federal
Court after this Schedule has commenced.