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2022-2023-2024
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
ADMINISTRATIVE REVIEW TRIBUNAL (MISCELLANEOUS MEASURES) BILL
2024
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, the Hon Mark Dreyfus KC MP)
GLOSSARY
In this Explanatory Memorandum, the following abbreviations are used:
Abbreviations Definition
AAT Administrative Appeal Tribunal
AAT Act Administrative Appeals Tribunal Act 2024
ART Act Administrative Review Tribunal Act 2024
ART Rules Administrative Review Tribunal (Consequential and
Transitional Provisions No. 1) Rules 2024
Bill Administrative Review Tribunal (Miscellaneous Measures)
Bill 2024
Consequential Act 1 Administrative Review Tribunal (Consequential and
Transitional Provisions No.1) Act 2024
Consequential Act 2 Administrative Review Tribunal (Consequential and
Transitional Provisions No.2) Act 2024
Migration Act Migration Act 1958
Tribunal Administrative Review Tribunal
Wine Act Wine Australia Act 2013
Wine Regulations Wine Australia Regulations 2018
1
AMENDMENTS TO THE ADMINISTRATIVE REVIEW TRIBUNAL
(MISCELLANEOUS MEASURES) BILL 2024
(Government)
GENERAL OUTLINE
The purpose of these amendments to the Administrative Review Tribunal
(Miscellaneous Measures) Bill 2024 (Bill) is to:
• update the commencement provision so that the Bill commences after the Royal
Assent, rather than on commencement of the Administrative Review Tribunal Act
2024 (ART Act), which has already occurred
• amend the timeframes for persons in immigration detention to apply for review of
certain decisions in the Administrative Review Tribunal (Tribunal)
• amend the Wine Australia Act 2013 (Wine Act) to enable the Wine Australia
Regulations 2018 (Wine Regulations) to modify sections 18 and 19 of the ART
Act in relation to timeframes to apply for review of decisions relating to
international geographic indications, and
• update a small number of outdated references to the AAT and the Administrative
Appeals Tribunal Act 1975 (AAT Act) in Commonwealth Acts.
Commencement provision
The amendments would update the commencement table of the Bill to provide that
the consequential amendments in Schedules 1 and 2 commence after the Royal Assent
of the Bill, rather than at the same time as the ART Act (which commenced on 14
October 2024). This avoids a retrospective commencement.
Timeframes for applying for review for people in immigration detention
Amendments to the Migration Act 1968 (Migration Act) would extend the timeframe
for persons who are in immigration detention to apply to the Tribunal for review of a
reviewable migration decision or reviewable protection decision.
Section 347 of the Migration Act, as inserted by item 136 of Schedule 2 of the
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1)
Act 2024 (Consequential Act 1), provides that an applicant who is in immigration
detention has 7 days after the day they are notified of a reviewable migration or
reviewable protection decision to apply for review of the decision.
The amendment would extend the period to make an application of this kind from 7
days to 14 days after the day the applicant is notified of the decision.
Timeframe to apply for review of foreign geographic indication determinations under the
Wine Australia Regulations 2018
The amendments would insert new provisions in the Wine Australia Act 2013 (Wine
Act) to authorise the Wine Australia Regulations 2018 (Wine Regulations), which are
made under that Act, to modify timeframes to apply to the Tribunal for review of
decisions relating to determinations of foreign geographical indications and
translations under section 40ZAQ of the Wine Act.
A final determination of a geographical indication identifies wine goods as originating
in a country, or in a region or locality in that country, where a quality, reputation or
other characteristic of the goods is essentially attributable to their geographical origin.
The Wine Regulations provide for procedures for the determination of foreign
geographical indications, and enable the Tribunal to review decisions relating to
determinations of geographical indications in relation to wine originating from a
foreign country.
Before the transition to the Tribunal, sections 98 and 107 of the Wine Regulations
modified the standard timeframes under the AAT Act to apply for review of decisions
relating to determinations of foreign geographical indications. Under these provisions,
applicants had 28 days to apply for review, or apply for an extension of the timeframe
to apply for review, from the publication of a notice of decision, and the timeframe
could not be extended.
Section 5 of the ART Act provides that an instrument made under an Act can modify
the application of the ART Act if the enabling Act provides the instrument can make
such modifications. This was not a requirement under the AAT Act. The Wine Act
does not currently authorise the Wine Regulations to modify the ART Act.
The amendments to the Wine Act would provide that the Wine Regulations may
modify the provisions of the ART Act relating to timeframes to apply to the Tribunal
(sections 18 and 19).
It is necessary and appropriate to enable the Wine Regulations to impose specific
timeframes on applications of this kind, and applications for timeframes to be
extended, in order to provide certainty regarding final determinations of geographical
indications. This position is consistent with arrangements for review of decisions
relating to geographical indications for Australian-grown wine, in section 40ZAH of
the Wine Act. Enabling open-ended time periods for review of the decisions could
lead to review being conducted long after registration of the geographical indication.
Given the time it takes to grow grapes, and to make wine, certainty regarding
registered geographical indications is fundamental to the efficacy of the Australian
grape and wine industry. This is particularly the case for producers conducting
business activities within the boundaries of a registered geographical indication.
The amendments would enable a continuation of long-standing arrangements for
merits review that ensure the legislative framework for foreign geographical
indications aligns with procedures established for Australian geographical indications
under the Wine Act. This alignment is consistent with Australia's obligations under
wine trade agreements that support market access for Australian wines in overseas
markets and provides the same level of certainty for foreign geographical indications
as is available for Australian geographical indications.
Minor reference updates
The amendments would also update a small number of outdated references to the
AAT and the AAT Act in the Migration Act, the A New Tax System (Family
Assistance) (Administration) Act 1999 and the Classification (Publications, Films and
Computer Games) Act 1995.
FINANCIAL IMPACT
These amendments would not impact the existing financial impact of the Bill and
associated legislation.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Administrative Review Tribunal (Miscellaneous Measures) Bill 2024
The amendments to the Bill are compatible with the human rights and freedoms
recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The purpose of these amendments to the Administrative Review Tribunal
(Miscellaneous Measures) Bill 2024 (the Bill) is to:
• update the commencement provision so that the Bill commences after the Royal
Assent, rather than retrospectively
• amend the timeframes for certain persons in immigration detention to apply for
review of certain decisions in the Administrative Review Tribunal (Tribunal), and
• amend the Wine Australia Act 2013 (Wine Act) to enable the Wine Australia
Regulations 2018 (Wine Regulations) to modify sections 18 and 19 of the
Administrative Review Tribunal Act 2024 (ART Act) in relation to timeframes to
apply for review of decisions relating to international geographic indicators, and
• update a small number of outdated references to the AAT and the Administrative
Appeals Tribunal Act 1975 (AAT Act) in various Commonwealth Acts.
Human rights implications
The amendments engage the following rights:
• the right to an effective remedy and the right to a fair hearing in articles 2(3) and
14 of the International Covenant on Civil and Political Rights (ICCPR).
Right to an effective remedy and the right to a fair hearing in articles 2(3) and 14 of the
ICCPR
Article 2(3) of the ICCPR provides that States shall undertake to ensure the right to an
effective remedy for any violation of rights or freedoms recognised by ICCPR. It
includes the right to have a remedy determined by competent judicial, administrative
or legislative authorities. This right also encompasses the duty to ensure competent
authorities enforce any such remedies when granted.
It follows that the right to an effective remedy relates to being able to make
applications to have a decision re-made in a merits review tribunal, including under
the ART Act.
Article 14(1) of the ICCPR protects the right that all persons are equal before courts
and tribunals. It further provides that every person, in the determination of rights and
obligations in a 'suit at law' is entitled to a 'fair and public hearing by a competent,
independent and impartial tribunal established by law'. Article 14(1) also recognises
that 'the press and public may be excluded from all or part of a trial for reasons of
morals, public order (order public) or national security in a democratic society, or
when the interest of the private lives of the parties so requires ... '.
The extent to which article 14(1) of the ICCPR applies to administrative review
proceedings (whether such proceedings constitute a 'suit at law') is not fully settled.
Amendments to timeframes for persons in immigration detention
The amendments to the Migration Act 1958 (Migration Act) amend the timeframe in
which a person in immigration detention must apply to the Tribunal for review of a
reviewable migration decision or reviewable protection decision, from 7 days to 14
days after the person is notified of the decision. To the extent that the right to an
effective remedy and the right to a fair hearing apply in Tribunal matters, the
amendments promote these rights by extending the period in which an application of
this kind may be made.
Amendments to retain modifications contained in the Wine Australia Regulations 2018
The amendments to the Wine Act would ensure the legal effectiveness of provisions
in the Wine Regulations that modify the standard timeframes to apply to the Tribunal
for review of certain decisions under the Wine Regulations.
To the extent that the right to an effective remedy and the right to a fair hearing apply
in Tribunal matters, the amendments to the Wine Act may engage these rights. These
amendments have the legitimate objective of providing certainty to wine growers
who, due to the length of time needed to grow grapes and produce the wine, rely on
reviews of decisions affecting their business activities being determined within a
confined period of time. The amendments also ensure review procedures are
consistent with procedures prior to the ART commencing operations, and are
consistent with Australia's international obligations under certain trade agreements.
Conclusion
The amendments are compatible with human rights. They promote the right to an
effective remedy and the right to a fair hearing (to the extent it applies in Tribunal
matters). To the extent that the amendments limit any human rights, those limitations
are reasonable, necessary and proportionate.
NOTES ON AMENDMENTS
Amendment 1: Clause 2, page 2 (table item 2)
Commencement of the Bill
This amendment updates table item 2 under clause 2 of the Bill, which sets out when
Schedules 1 and 2 of the Bill (which contain repeals and consequential amendments
to a number of Commonwealth Acts) commence.
Current table item 2 provides that Schedules 1 and 2 of the Bill commence
immediately after the ART Act commences. Other items in the table provide for the
commencement of other Schedules through cross-references to table item 2. However,
the ART Act has already commenced, on 14 October 2024.
The amendment updates table item 2 to provide that Schedules 1 and 2 of the Bill
commence the day after the Bill receives Royal Assent. This avoids any aspect of the
Bill commencing retrospectively, which would cause uncertainty and complexity in
relation to review rights and proceedings relying on the existing law during the period
between the commencement of the ART Act and the enactment of the Bill.
A New Tax System (Family Assistance) (Administration) Act 1999
Amendment 2: Schedule 2, page 21 (before line 4), before item 65
Terminology changes
This amendment inserts new item 64A into Schedule 2 of the Bill. This item replaces
an outdated reference to the 'AAT' in subsection 124(3) of the A New Tax System
(Family Assistance) (Administration) Act 1999 with a reference to the ART.
Migration Act 1958
Amendment 3: Schedule 2, page 35 (after line 11), after item 113
Terminology changes and updating legislative references
This amendment inserts new items 113A and 113B into Schedule 2 of the Bill. The
new items replace outdated references to the "Administrative Appeals Tribunal" and
the "Tribunal" in subsection 245AYK(9) of the Migration Act with references to the
Administrative Review Tribunal and the ART. This reflects amendments made by
Consequential Act 1 to repeal the definition of Tribunal in subsection 5(1) of the
Migration act and replace it with a definition of ART.
This amendment also inserts new item 113C. This item amends the note to subsection
245AYK(9) of the Migration Act, replacing the outdated legislative reference to
section 27A of the AAT Act with a reference to the equivalent provision in the
ART Act. Consistent with section 27A of the AAT Act, section 266 of the ART Act
requires a decision-maker to notify persons who are affected by the decision of the
making of the decision, and their right to have the decision reviewed. This
amendment is technical in nature and ensures the note remains accurate.
Amendment 4: Schedule 2, item 115, page 35 (line 23)
Period for applying for review of reviewable migration or reviewable protection decision
Section 347(1) and of the Migration Act enable an application to be made to the
Tribunal for review of a reviewable migration decision or a reviewable protection
decision.
Item 115 of Schedule 2 of the Bill makes amendments to subsections 347(2) and (3)
of the Migration Act to clarify what constitutes a properly made application for
review of reviewable migration decisions and reviewable protection decisions.
This amendment omits the reference to '7 days' in proposed new subsection 347(2)(a)
of the Migration Act within item 115 of Schedule 2 of the Bill, and replaces it with a
reference to '14 days'.
This amendment has the effect that the period for a person who is in immigration
detention to make an application for review of a reviewable migration decision or
reviewable protection decision under section 347 of the Migration Act is 14 days
(rather than 7 days) after the applicant is notified of the decision. This ensures that
applicants in immigration detention do not have less time to apply for review than
they did prior to the commencement of the amendments in Consequential Act 1.
Amendment 5: Schedule 2, Part 12, page 37 (after line 5), at the end of the Part
Terminology changes
This amendment inserts new item 120A into the Bill. The new item replaces an
outdated reference to "Tribunal" in paragraph 375A(2)(b) of the Migration Act with a
reference to "ART". This reflects amendments made by Consequential Act 1 to repeal
the definition of Tribunal in subsection 5(1) of the Migration Act and replace it with
a definition of ART.
Wine Australia Act 2013
Amendment 6: Schedule 2, page 39 (after line 4), at the end of the Part
Authorising contrary intention prescribed by a legislative instrument
This amendment inserts new items 127A and 127B into Schedule 2 of the Bill. Items
127A and 127B insert new subsections 40ZAQ(4) and 40ZAT(3) into the Wine Act to
provide that regulations made for the purposes of those sections of the Act may
contain provisions that modify the operation of sections 18 and 19 of the ART Act.
Section 5 of the ART Act provides that other Acts and instruments may modify or
disapply provisions contained in the ART Act if they contain a contrary intention. A
legislative instrument can only disapply or modify the application of a provision of
the ART Act if the Act under which the instrument is made authorises it to do so.
The Wine Regulations enable the Tribunal to review determinations of geographical
indications in relation to wine originating from a foreign country and determinations
to omit a geographical indication from the relevant register as well as registered
translations of such indications.
Sections 98 and 107 of the Wine Regulations provide that applicants have 28 days
from publication of a notice of determination made by the Geographical Indications
Committee to apply for review of that determination, or to apply for an extension of
time in which to apply for review. These sections apply contrary to sections 18 and 19
of the ART Act, which provide the timeframe for applying to the Tribunal for review,
and the power of the Tribunal to extend that timeframe.
The effect of inserting new subsections 40ZAQ(4) and 40ZAT(3) into the Wine Act is
to enable the Wine Regulations, and other regulations made under sections 40ZAQ
and 40ZAT, to continue to contain provisions that modify the operation of sections 18
and 19 of the ART Act.
These modifications to review procedures under the ART Act are to provide certainty
in relation to final determinations of geographical indications. It is important for wine
growers to know within a confined period of time that they are growing grapes within
the boundaries of a particular geographical indication to ensure that the wine
produced from such grapes will obtain the expected market access and value.
The modifications would also ensure Australia meets its international obligations
under wine trading agreements by ensuring consistency in procedures relating to
determinations of Australian and foreign geographical indications under the Wine
Regulations and the Wine Act.
Classification (Publications, Films and Computer Games) Act 1995
Amendment 7: Schedule 2, page 40 (before line 3), before the heading specifying New
Vehicle Standards Efficiency Act 2014
Terminology changes
This amendment inserts new items 127C and 127D into the Bill. These items replace
outdated references to the AAT and the Administrative Appeals Tribunal in section
224 of the Classification (Publications, Films and Computer Games) Act 1995 with
references to the ART and the Administrative Review Tribunal.