Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to amalgamate certain administrative review tribunals, and for other purposes
Administered by: Attorney-General's
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Registered 04 Dec 2014
Introduced Senate 03 Dec 2014
Table of contents.

 

 

 

2013-2014

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

TRIBUNALS AMALGAMATION BILL 2014

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General, Senator the Honourable George Brandis QC)



Tribunals Amalgamation Bill 2014

General outline

1.                  The Tribunals Amalgamation Bill 2014 (the Bill) would merge the Administrative Appeals Tribunal (AAT), the Social Security Appeals Tribunal (SSAT) and Migration Review Tribunal and Refugee Review Tribunal (MRT‑RRT) by amending a range of Commonwealth Acts, including the:

·         Administrative Appeals Tribunal Act 1975 (AAT Act)

·         Migration Act 1958 (Migration Act)

·         Social Security Act 1991 (the SS Act)

·         Social Security (Administration) Act 1999 (SSA Act)

·         Child Support (Assessment) Act 1989 (CSA Act)

·         Child Support (Registration and Collection) Act 1988 (CSRC Act)

·         A New Tax System (Family Assistance) Act 1999 (FA Act)

·         A New Tax System (Family Assistance) (Administration) Act 1999 (FAA Act)

·         Paid Parental Leave Act 2010 (PPL Act), and

·         Student Assistance Act 1973 (SA Act).

2.                  The amalgamated Tribunal would be established under the AAT Act, and would be called the AAT.

3.                  The amalgamation would:

·         further enhance the efficiency and effectiveness of the Commonwealth merits review jurisdiction and support high quality and consistent Government decision making

·         generate savings through shared financial, human resources, information technology and governance arrangements

·         provide for greater utilisation of members’ specialist expertise across subject matters and facilitate the sharing of expertise between members and staff

·         incorporate the successful features of the tribunals as currently constituted, and

·         incorporate merits review of freedom of information decisions into the work of the amalgamated tribunal.

4.                  This reform draws on recommendations in successive public reports.

5.                  The amalgamation would primarily affect the Tribunals’ internal administrative and corporate operations and is not intended to materially affect the rights of tribunal users.

Financial Impact Statement

6.                  The amalgamation of the Commonwealth external merits tribunals is expected to produce savings over the forward estimates period of $7.2 million through reductions in back office and property expenses.


Statement of Compatibility with Human Rights
Tribunals Amalgamation Bill

(Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)

7.                  This Bill is 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.

Background

8.                  The Tribunals Amalgamation Bill 2014 would amend various Acts in order to merge the Social Security Appeals Tribunal and the Migration Review Tribunal and Refugee Review Tribunal into the Administrative Appeals Tribunal. The amalgamated Tribunal would be established under the AAT Act. It would be called the AAT. The Veterans’ Review Board and the Classification Review Board are not included in the amalgamation.

9.                  The Bill is primarily directed at the establishment, organisation and procedures of the amalgamated Tribunal. The Bill is not intended to affect the wide range of substantive rights which can be the subject of merits review.

10.              Currently, the AAT has jurisdiction to review decisions under more than 450 laws. In the last financial year the AAT finalised 6,748 applications. Social security, taxation and workers’ compensation matters made up approximately 76% of the applications finalised. The AAT also has jurisdiction to review decisions under the National Disability Insurance Scheme (NDIS). The AAT Act provides for the establishment, organisation and membership of the Tribunal, and a comprehensive procedural framework for the conduct of reviews.

11.              The MRT‑RRT conducts merits reviews of visa and visa-related decisions made by the Department of Immigration and Border Protection. The MRT reviews decisions for a wide range of visas, including the refusal and cancellation of temporary work visas, family visas and student visas. The RRT reviews decisions to refuse to grant or to cancel protection visas within Australia. The MRT‑RRT finalised 24,729 reviews in the last financial year. Approximately 85% of those reviews were in the MRT. The legal framework for the MRT‑RRT—its establishment and organisation, jurisdiction and procedures—is currently within the Migration Act.

12.              The SSAT is the first level of external review of decisions on social security, family assistance, education or training assistance, child support and parental leave payments. In the 2012–2013 financial year the SSAT finalised 12,412 reviews. Review applications can be categorised into three types: Centrelink reviews other than paid parental leave (which makes up approximately 84% of their caseload), paid parental leave reviews and child support reviews. The SSA Act provides the legal framework for the SSAT and its procedures for the review of decisions under the social security law.

Objectives of the Bill

13.              By providing a single point of contact for persons seeking review of most administrative decisions, the amalgamation would streamline and simplify the Commonwealth merits review system and improve access to justice by fostering greater awareness of the Tribunal’s function.

14.              The amalgamated Tribunal would be required to pursue the statutory objective (Item 1 of Schedule 1 to the Bill) of providing a mechanism of review that:

·         is accessible

·         is fair, just, economical, informal and quick

·         is proportionate to the importance and complexity of the matter, and

·         promotes public trust and confidence in the decision making of the Tribunal.

15.              A strong, impartial and effective Tribunal in turn would strengthen government decision-making by providing an avenue for persons to seek review of decisions that affect their interests.

16.              The amalgamation would produce the coherent merits review framework that was first envisaged when the AAT was established in 1976 as an administrative review tribunal with general jurisdiction. It follows key reform recommendations by the National Commission of Audit in the 2014 Towards Responsible Government report and, previously, by the 2012 Strategic Review of Small and Medium Agencies in the Attorney General’s Portfolio and the Administrative Review Council’s 1995 Better Decisions report.

17.              The purpose of the Bill is to establish a sound institutional framework for the amalgamated Tribunal, which would preserve its independence and the expertise of its members. The Bill would seek to harmonise and simplify procedures applicable to merits review where appropriate, but would also provide for flexibility in rules and diversity in approaches across the amalgamated Tribunal’s varied jurisdictions. To this end, the Bill does not seek to make significant changes to procedures that currently apply in the AAT, MRT‑RRT and the SSAT. Instead, recognising that distinctions in procedure across the tribunals are appropriate to their particular cohorts of applicants and caseloads, the Bill seeks to preserve successful processes and features of the existing tribunals. This reflects the high standards of the existing tribunals’ approaches to merits review.

18.              Importantly, the Bill would preserve existing applicant rights of access to merits review (and in respect of certain child support matters, access to merits review would be expanded—see Schedule 4 to the Bill). Existing rights to judicial review would also be preserved.

19.              Consistent with the Government’s commitment to reduce unnecessary duplication and inefficiency in public administration, the Bill will generate savings through the adoption of consolidated financial, human resources, information technology and governance arrangements by the amalgamated Tribunal.

20.              The Bill was developed in close consultation with the tribunals and relevant Commonwealth Departments, and was also the subject of consultation with key community stakeholders.

21.              The measures in each Schedule to the Bill are summarised below, followed by discussion on the human rights implications of the Bill.

Overview of the Schedules

Schedule 1—Amendment of the Administrative Appeals Tribunal Act 1975

22.              Schedule 1 to the Bill would amend the AAT Act to support amalgamation. Key amendments follow.

23.  The key amendments in Schedule 1 to the Bill would:

·         create a robust governance structure for the amalgamated Tribunal, headed by a President, supported by the Registrar and the members (all statutory officers)

·         preserve the independence of the amalgamated Tribunal, including by maintaining the requirement that the President be a judge of the Federal Court of Australia

·         preserve the existing remuneration and terms and conditions of members appointed to the AAT, SSAT and MRT‑RRT to ensure that members are not disadvantaged by the amalgamation

·         retain the existing Divisional structure of the Tribunal, which is essential to managing the large and varied caseload and facilitating member specialisation, but with new Divisions:

-   General Division

-   Migration and Refugee Division

-   National Disability Insurance Scheme Division

-   Security Division

-   Social Services and Child Support Division

-   Taxation and Commercial Division, and

-   a further Division, the Veterans’ Appeals Division, will be established by Regulation

·         preserve the ability of the President and Deputy Presidents of the Tribunal to sit across all Divisions, so as to provide leadership and facilitate the sharing of best practices. Senior members and members would continue to be assigned to a Division or Divisions by the Minister, so as to promote the development of specialised expertise. The Minister administering the AAT Act would consult with other Ministers about member assignments where a Division’s work substantially affects their portfolio. This reflects existing practice

·         preserve the power of the President to issue practice directions about matters including the operations of the Tribunal and the conduct of review. This ensures transparency and consistency in approach across the amalgamated Tribunal and promotes the flexibility to meet changing workloads over time

·         ensure that merits review of Government decision-making is accessible no matter where an applicant to the Tribunal may be located, including by modernising provisions related to hearings by electronic means, which promotes accessibility

·         preserve alternative dispute resolution processes currently in place, which are a core component of the AAT’s function and contribute to an economical, informal and quick review process

·         preserve the right to a two-staged review process, where currently available, for certain decisions currently reviewed by the SSAT (including social security decisions), and

·         preserve other procedures that are essential to maintaining fair and efficient reviews in the migration and refugee, and social services and child support, jurisdictions.

Schedule 2—Migration amendments

24.              Schedule 2 to the Bill would abolish the MRT‑RRT and transfer its jurisdiction to the AAT. It would preserve the existing codes of procedure in Parts 5 and 7 of the Migration Act, which would apply to review of decisions in the Migration and Refugee Division of the amalgamated Tribunal. The AAT also currently has jurisdiction to review certain decisions under the Migration Act. There would be no change to this existing jurisdiction.

25.              The Migration Act codes, which codify the requirements of procedural fairness, provide certainty for the amalgamated Tribunal and its users in the review of decisions. They also promote consistency in Tribunal decision-making. For these reasons, Schedule 1 to the Bill would provide that Part IV of the AAT Act—which sets out procedures for the conduct of review—is excluded in relation to decisions reviewable in the Migration and Refugee Division, subject to the limited exceptions set out in proposed section 24Z (Item 39 of Schedule 1 to the Bill).

Schedules 3, 4, 5, 6 and 7—Social services and child support amendments

26.              Schedule 3 to the Bill would amend the SSA Act, while Schedules 4 to 7 would amend the CSRC Act, the FAA Act, the PPL Act and the SA Act respectively.

27.              It is anticipated that Regulations would provide that decisions made under these Acts (being those decisions currently reviewed by the SSAT) would be reviewed by the amalgamated Tribunal in its Social Services and Child Support Division. Distinct features of the SSAT, which have operated successfully and are of particular benefit to reviewing decisions of this kind, would be preserved. Schedule 3 to the Bill would abolish the SSAT. Schedules 3 to 7 to the Bill would transfer the SSAT’s jurisdiction in respect of decisions made under the relevant Act to the amalgamated Tribunal.

28.              Key procedural rules that would be preserved for social services and child support matters by Schedules 3 to 7 (and in some cases, by amendments to the AAT Act in Schedule 1) include:

·         oral lodgement and withdrawal of applications in most cases (child support and certain paid parental leave applications would be required to be in writing)

·         arrangements for applicants in some circumstances to continue to receive a payment pending the outcome of Tribunal review

·         hearings to be conducted in private, unless otherwise directed, and

·         the right to two-stage review of certain decisions made by the amalgamated Tribunal in its Social Services and Child Support Division (those decisions in respect of which AAT review of SSAT decisions is currently available).

Schedule 8—Other consequential amendments

29.              Schedule 8 to the Bill provides for consequential amendments largely to legislation that will confer jurisdiction on the amalgamated Tribunal. These amendments are minor and technical.

Schedule 9—Transitional and saving provisions

30.              Schedule 9 to the Bill provides transitional and savings provisions to transfer members from SSAT and MRT‑RRT to the amalgamated Tribunal. The savings arrangements would transfer the appointment, remuneration and terms and conditions of various types of members to the amalgamated Tribunal.

31.              Schedule 9 would also provide for the saving and transfer of key authorisations and powers to ensure that members and other officers of the Tribunal can continue to exercise their duties and obligations upon commencement.

32.              The Bill also allows for further transitional arrangements to be made through the regulations.

Human rights implications

33.              The Bill engages the following human rights:

·         the right to an effective remedy in Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR)

·         the right to a fair hearing in Article 14(1) of the ICCPR

·         the right to minimum guarantees in proceedings of the accused in criminal trials in Article 14(3) of the ICCPR

·         the right to freedom from arbitrary and unlawful interferences with privacy in Article 17 of the ICCPR

·         the right to freedom of opinion and expression in Article 19 of the ICCPR

·         the obligation to treat the best interests of the child as a primary consideration, and the right of a child to express his or her opinion, in Articles 3 and 12 of the CRC, and

·         the right of access to justice for people with disability in Article 13 of the CRPD.

Right to an effective remedy in Article 2(3) of the ICCPR

34.              Article 2(3) requires the Government to ensure that, where a person’s rights or freedoms are violated under the ICCPR, they have access to an effective and enforceable remedy determined by competent judicial, administrative or legislative authorities.

35.              Merits review is an administrative process created by statute and accordingly there is no right to merits review as such. However, the administrative decisions that are the subject of merits review may touch on rights protected by the ICCPR. In such circumstances, access to merits review may afford an effective remedy.

36.              The amalgamated Tribunal would perform a critical role in the review of government decisions. While some decisions will have undergone internal review by the relevant Department or agency prior to a person making an application to the Tribunal, in other cases the Tribunal would be the first level of scrutiny of the decision. In reviewing administrative decisions, the role of the amalgamated Tribunal is to ensure the correct or preferable decision is made based on the information before it. This means making the legally correct decision or, where more than one decision would be legally correct, the preferable decision. In doing so, the amalgamated Tribunal can consider additional evidence that was not before the original decision-maker.

37.              The amalgamated Tribunal would typically be entitled to exercise all the powers and discretions conferred on the primary decision-maker. Where the Tribunal varies a decision, or sets it aside and substitutes a new decision, the Tribunal’s decision typically has effect as if it were the decision of the primary decision-maker. The Tribunal’s decision would be a final and lawful determination of a person’s statutory entitlements (unless appealed to a court).

38.              The Bill would preserve the existing position that certain decisions would undergo two rounds of review within the amalgamated Tribunal: namely, decisions under the social security law, family and student assistance decisions, paid parental leave decisions, and child support decisions, where a right currently exists for further review by the AAT of SSAT decisions. The Bill would also preserve the right to judicial review under Part IVA of the AAT Act and Part 8 of the Migration Act.

39.              Based on annual reports, the existing tribunals received a total of 38,852 applications in the 2012–2013 financial year. The number of decisions that go to external merits review, and the outcomes of those decisions, demonstrates that the amalgamated Tribunal would promote access to an effective remedy (to the extent that this right attaches in relation to potential violations of rights protected in the ICCPR).

Table 1 Appeals to the Tribunals and outcomes

 

 

AAT

MRT‑RRT

SSAT*

Number of applications received

7,263

22,289

12,283

Number of applications finalised

6,531

24,729

12,412

Decisions affirmed

20%

54%

60%

Decisions varied/set aside

35%

29%

21%

Not reviewable / Withdrawn / Dismissed

45%

18%

20%

* Data for the SSAT based on the 2012–2013 annual report. Data for the MRT‑RRT and the SSAT based on 2013–2014 annual reports.

Right to a fair hearing in Article 14(1) of the ICCPR

40.              Article 14(1) of the ICCPR requires all persons to be equal before the courts and tribunals. It further provides that everyone is entitled, in the determination of ‘rights and obligations in a suit at law’, to a ‘fair and public hearing by a competent, independent and impartial tribunal established by law’.

41.              The extent to which Article 14(1) applies to administrative review proceedings (whether such proceedings constitute a ‘suit at law’) is not fully settled. To the extent that it may apply, the Bill would promote the right to a fair hearing.

42.              The Tribunal would be required by its statutory objective to pursue a fair and just mechanism of review (Item 1 of Schedule 1 to the Bill). The procedures in the amalgamated Tribunal would promote a fair hearing. Particular aspects of the right are addressed below.

Private hearings

43.              Article 14(1) provides the general principle that hearings should be in public. Section 35 of the AAT Act (Item 66 of Schedule 1 to the Bill) endorses this as the starting point for Tribunal reviews. The Tribunal can also publish its decisions and reasons in appropriate cases (Item 66 of Schedule 1 to the Bill). However, the Bill would require or permit private hearings in a number of circumstances, including:

·         hearings in refugee matters and social services and child support matters would be required to be in private, due to the need to protect the parties and their privacy and safety (this being especially relevant in refugee and some child support matters), and

·         hearings in the Security Division in relation to security assessments would be required to be in private, due to the sensitive nature of the national security information involved.

44.              The amalgamated Tribunal would also have the discretion to make orders for non‑publication and non‑disclosure of information (see Item 67 of Schedule 1 to the Bill).

45.              Provision for private hearings in these circumstances is permissible under Article 14(1), which contemplates privacy and national security as reasons for excluding the public from proceedings. To the extent that the Bill would limit the right to a public hearing under Article 14, the limitations are justified as they balance the need for transparent and impartial decision making against the need for privacy, the safety of parties and to protect national security.

Reviews on the papers

46.              The Bill maintains the general principle of a right to a hearing. It also preserves the Tribunals’ right to conduct a review on the papers. A review on the papers can only occur where it is apparent to the Tribunal that the review can be adequately determined on the evidence before it, in the absence of the parties. Section 34J of the AAT Act (Item 65 of Schedule 1) has the effect that, in most cases, a review on the papers can occur only with the consent of the parties.

47.              The amalgamated Tribunal may conduct a review on the papers without consent of the parties only at the second stage of the review process, where the Tribunal has previously made a decision on first review at which the applicant has had an opportunity to make submissions and present evidence. The Tribunal may only proceed on the papers in accordance with paragraph 34J(1)(a) of the AAT Act, that is, where ‘the review of a decision can be adequately determined in the absence of the parties’.

48.              To the extent that a review on the papers may limit the right to a public hearing, this limitation would be necessary and proportionate to the amalgamated Tribunal’s objective for a fair, just, economical, informal and quick review. The amalgamated Tribunal would exercise this discretion carefully and on a case by case basis. Parties dissatisfied with the outcome of a review on the papers would retain access to judicial review.

Right to minimum guarantees in proceedings of the accused in criminal trials in Article 14(3) of the ICCPR

49.              Article 14(3) outlines the right to minimum guarantees for the determination of any criminal charge. Items 135 and 144 in Schedule 1 of the Bill would provide offences in the AAT Act (some of which would also be mirrored in the Migration Act by Schedule 2). The offences relate to disclosure of information contrary to a Tribunal order, failure to comply with summonses and contempt of the Tribunal. Existing offences relating to refusal to be sworn or to answer questions and giving false or misleading evidence have been preserved (sections 62 and 62A of the AAT, respectively). These offences pursue the legitimate aim of ensuring the amalgamated Tribunal is able to effectively exercise its statutory powers.

50.              Further, the standard criminal defences in the Criminal Code Act 1995 (such as duress, and honest and reasonable mistake defences) and criminal trial procedures in the Judiciary Act 1903 and the Evidence Act 1995 would apply to charges in relation to these offences. Items 135 and 141 of Schedule 1 to the Bill insert protections from self‑incrimination. This ensures the protection of the minimum guarantees is balanced with the need for the Tribunal to enforce its statutory powers. Further, the penalties for offences are reasonable, necessary and proportionate to that objective and have been standardised to create a more consistent approach.

Right to freedom from arbitrary and unlawful interferences with privacy in Article 17 of the ICCPR

51.              Pursuant to Article 17 of the ICCPR, an interference with an individual’s privacy must have a lawful basis and must not be arbitrary. That is to say, it must be in accordance with the provisions, aims and objectives of the ICCPR and be reasonable in the circumstances. Reasonable interferences with privacy are measures which are based on reasonable and objective criteria and which are proportionate to the purpose for which they are adopted. Article 16 of the CRC is drafted in similar terms to Article 17 of the ICCPR and prohibits the arbitrary or unlawful interference with the privacy of the child.

52.              Items 74, 102 and 103 of Schedule 1 to the Bill contemplate the collection, use and storage of personal information as evidence for a Tribunal file. The powers of the amalgamated Tribunal to deal with personal information would engage the right to privacy of applicants. The amalgamated Tribunal would have rigorous mechanisms to protect personal information and other evidence (including confidentiality provisions in item 66 of Schedule 1 to the Bill). Protection of personal information—such as taxation, Centrelink or asylum‑seeker information—is instrumental to upholding the integrity of the Tribunal.

53.              Item 66 of Schedule 1 to the Bill clarifies existing AAT powers to give directions prohibiting or restricting the disclosure or publication of certain information and evidence. These non-disclosure and non-publication orders may apply to evidence or information given to the Tribunal and may extend to Tribunal members and staff. The general protections of the Privacy Act 1988 will also apply to information collected, used and stored by the amalgamated Tribunal. This includes prohibiting the collection of personal information unless the information is reasonably necessary for, or directly related to, the functions of the amalgamated Tribunal.

54.              The interference with privacy in these circumstances is not arbitrary and is in pursuit of a legitimate purpose, namely for the Tribunal to come to the correct or preferable decision in its review of the primary decision.

55.              Further, as noted above, the Bill would allow or require the amalgamated Tribunal to conduct hearings in private and/or restrict publication of decisions and reasons for a decision, where desirable. The Bill accordingly protects the rights to privacy in Article 17 of the ICCPR.

56.              The Bill preserves the tribunals’ summons powers and information-gathering powers. These powers allow the tribunals to compel the production of evidence, from agencies and third parties. Evidence produced can often be of a private and personal nature and can engage with obligations of confidentiality–such as doctor-patient confidentiality. In such circumstances, the amalgamated Tribunal can rely on its non-disclosure and non-publication powers to limit access and publication of confidential material. In practice, this can mean the redaction of personal information prior to granting parties access.

Right to freedom of opinion and expression in Article 19 of the ICCPR

57.              The Bill engages the rights under Article 19 of the ICCPR only tangentially in relation to the regulation of access to and disclosure of information.

58.              The amalgamated Tribunal would have jurisdiction to review decisions relating to Freedom of Information (FOI). The amalgamated Tribunal would provide an avenue for reconsideration of administrative decisions to refuse access to material under FOI legislation. This role of the amalgamated Tribunal would promote the right of freedom of opinion and expression.

59.              Item 225 of Schedule 1 to the Bill would empower the amalgamated Tribunal to issue non‑disclosure orders where desirable, including in relation to confidential information. The non-disclosure power limits the right to freedom of opinion and expression. However, this limitation has a legitimate purpose of protecting sensitive and personal information and information that may affect national security.

60.              The non-disclosure powers would be exercised only where necessary and reasonable. The amalgamated Tribunal would be required under section 35 (Item 66) to consider the principles that hearings should be public and that evidence should be made available to the public and the parties before ordering non‑disclosure. The limitation would be proportionate to the objective as the amalgamated Tribunal can limit disclosure on a case-by-case basis and can specify which parts of the evidence or information cannot be disclosed.

The best interests of the child and the right of a child to express his or her opinion in Articles 3 and 12 of the Convention on the Rights of the Child (CRC)

61.              New section 98A of the CSRC Act (Item 64 of Schedule 4 to the Bill) would preserve the current policy that evidence from children of parties is barred in proceedings that relate to the child, such as child support matters. The intention behind this policy is to protect the relationship between minor children and parents.

62.              New section 98A replicates existing section 103H of the CSRC Act. It would clarify that the restriction relates to oral evidence before the amalgamated Tribunal and that the restriction applies to first and second review in the amalgamated Tribunal.

63.              This section limits the rights of a child to be heard in any judicial and administrative proceedings that affect the child, as per Article 12 of the CRC. As noted above, the intention behind this policy is to protect the relationship between minor children and parents. The limitation is necessary to achieve a legitimate objective. As other forms of (non-oral) evidence from children of parties will be allowed, the limitation is proportionate and reasonable.

64.              Any limitation to the right of a child to express his or her own views (under Article 12 of the CRC) is justified as it balances the need for transparent and impartial decision making against the need to protect family relationships and vulnerable children. Further, the objective of new section 98A would be to promote the best interests of a child, as per Article 3 of the CRC. This right is promoted by protecting the family relationships of a child in the course of a review by the amalgamated Tribunal.

Rights of access to justice for people with disability in Article 13 of the Convention on the Rights of Persons with Disabilities (CRPD)

65.              Article 13 of the CRPD requires the Government to ensure effective access to justice for persons with disabilities, including facilitating their effective role in all legal proceedings.

66.              The Bill would promote the right of access to justice for people with disability. Many of the users of the amalgamated Tribunal will be persons with disabilities, as the amalgamated Tribunal will have jurisdiction to review NDIS, disability support pension, workers compensation and veterans’ appeal decisions, amongst other categories of decisions affecting persons with disabilities.

67.              The amalgamated Tribunal’s objectives of informality and fairness would support an accessible review mechanism (Item 1 of Schedule 1 to the Bill). The merits‑review process usually sits between internal review by a government department or agency and judicial review. As such, it is the first external, and therefore wholly independent, review mechanism for persons seeking review.

68.              The informality of the conduct of merits review distinguishes the process from judicial review. The amalgamated Tribunal would not be bound by legal technicalities or the rules of evidence when reviewing a decision. The conduct of hearings would not require court formalities and the amalgamated Tribunal may ask questions of witnesses and parties.

69.              This flexibility and informality would allow the amalgamated Tribunal to adapt to the differing needs of persons with disabilities and to promote their right of access to justice.

Conclusion

70.              The Bill is compatible with human rights. It advances the protection of human rights, specifically the right to an effective remedy, the right to a fair hearing, and the right of access to justice for persons with disabilities. To the extent that the Bill limits any human rights, those limitations are reasonable, necessary and proportionate.

 

Senator the Honourable George Brandis QC, Attorney-General

 


Summary of the Bill

Policy background

71.              The proposal to amalgamate the existing merits review tribunals is the most recent of a series of reforms to merits review in the Commonwealth stretching back to the 1970s.

72.              The 1995 Administrative Review Council Better Decisions Report recommended a broad range of changes to the merits review framework. In particular, it considered that a single merits review tribunal would combine the best features of existing tribunals. It would lead to better decisions, remove unwarranted duplication and be simpler for the public. The 2012 Skehill Strategic Review of Small and Medium Agencies in the Attorney‑General’s Portfolio also considered that there was merit in the idea of amalgamating Commonwealth tribunals, and amalgamation was recommended by the 2014 Commission of Audit report Towards Responsible Government.

73.              Similar reforms have been successfully implemented in most states and territories.

74.              The Bill approaches the amalgamation of the AAT, SSAT, and MRT‑RRT by seeking to preserve the distinctive aspects of each of the tribunals that are important and work well in their specific jurisdictions while streamlining and simplifying procedures to better serve the end users of the amalgamated Tribunal and the Tribunal itself.

75.              The Bill would enable the amalgamated Tribunal to deal with a greater range of administrative and procedural matters through practice directions where possible rather than prescribing detailed practice and procedures in legislation.

76.              The aim of the Bill is to create a piece of legislation that is easy to use and understand, with minimal change to the existing operation of the merits review tribunals in the exercise of their substantive functions.

Major features of the Bill

77.              The Bill would produce an amalgamated Tribunal adapting features and procedures from each of the existing Tribunals. The governance structure would be designed to allow for knowledge and skill sharing across the Tribunal while maintaining specialisation in key jurisdictions.

78.              Key features of the Bill include:

·         an updated objective requiring the Tribunal to provide a mechanism of merits review that is accessible, proportionate to the importance and complexity of the matter, and promotes public trust and confidence in the decision-making of the Tribunal, as well as providing merits reviews that is fair, just, economical, informal and quick

·         a governance structure consisting of a President, Division heads and deputy Division heads to manage the merits review work of the Tribunal, and a Registrar to manage public service and financial arrangements, as well as supporting the work of the Tribunal

·         a divisional structure covering the major areas of the Tribunal’s jurisdiction to enable management of the Tribunal’s workload and specialisation where appropriate

·         a membership structure and qualifications that enables the Tribunal membership to reflect a range of experience and expertise, and maintains the role of members who are judicial officers in considering particularly novel or complex issues where appropriate

·         retention of key features of the procedures of the AAT, MRT, RRT and SSAT that are crucial to managing the workload of their respective jurisdictions

·         reservation of the right to a second external merits review of social services and child support decisions where this is currently available, under procedures similar to those currently used by the AAT for second reviews, and

·         transitional arrangements designed to ensure existing members of the AAT, MRT‑RRT and SSAT are not disadvantaged by the amalgamation, and power to make regulations to make provisions to ensure that applicants to each of the Tribunals at commencement are not disadvantaged.

Governance

79.              The President would be the head of the Tribunal and have ultimate authority over its statutory functions and administrative affairs (new section 18B, section 24A of the AAT Act and other provisions). The President would be assisted in his responsibilities for the administrative affairs of the Tribunal by the Registrar (section 24B of the AAT Act). The Registrar would also be Agency Head for the purposes of the Public Service Act 1999, and accountable authority for the purposes of the Public Governance, Performance and Accountability Act 2013. However, in practice, the Registrar would exercise these management functions in close consultation with the President.

80.              In addition, the Bill would create the roles of Division head, and deputy Division heads. Assignees to these roles would be drawn from the Deputy Presidents and senior members of the amalgamated Tribunal and would have the function of assisting the President in the performance of the President’s functions by directing the business of the Tribunal in their Division (new sections 17K and 17L of the AAT Act).

81.              The President would have power under new section 18B of the AAT Act (and other provisions) to make practice directions for the Tribunal. This would ensure consistency and transparency in the Tribunal’s exercise of its powers, while maintaining flexibility for the Tribunal to adapt its procedures over time. Where possible, provisions in the governing legislation of the Tribunal would be simplified to allow procedures to be set by the President under practice directions.

82.              New section 10A would provide a range of delegation powers:

·         the Minister may delegate his or her powers to the President

·         the President may delegate his or her powers to members, and

·         the Registrar may delegate his or her powers to staff and officers of the Tribunal.

83.              Clear powers of delegation would be necessary to manage the heavy workload of the amalgamated Tribunal, and allow for flexible allocation of powers across the Tribunal.

84.              The Bill would also provide for authorised members and authorised officers (section 59A and new section 59B of the AAT Act). These are particular members and officers of the Tribunal who are authorised to exercise certain powers of the Tribunal, particularly powers in relation to pre-hearing procedures.

Divisional structure

85.              To facilitate management of the Tribunal’s workload, six Divisions of the Tribunal would be established by new section 17A of the AAT Act:

·         General Division

·         Migration and Refugee Division

·         National Disability Insurance Scheme Division

·         Security Division

·         Social Services and Child Support Division, and

·         Taxation and Commercial Division.

86.              Further Divisions may be created by Regulations. At commencement, it is expected that this power would be used to maintain the Veterans’ Appeals Division.

87.              Work would generally be allocated to Divisions by Regulations, or, where Regulations have not been made in relation to a particular type of application, by practice directions issued by the President (new section 17B of the AAT Act). However, the jurisdiction of the Migration and Refugee Division and Security Division would be allocated by legislation.

88.              As noted above, the Bill would enable the Minister to assign a Deputy President as Division head to one or more of these Divisions to support the President’s management of the business in that Division (new section 17K of the AAT Act). Deputy Division heads may also be assigned where necessary to support a Division head in larger Divisions (new section 17L of the AAT Act). Division heads and deputy Division heads would exercise powers primarily through delegations and authorisations from the President.

89.              The President and Deputy Presidents would be able to exercise powers in any Division of the Tribunal. Senior members and other members would only be able to exercise powers in Divisions to which they are assigned by the Minister (new section 17C of the AAT Act). This reflects existing practice in the AAT, and ensures that members have appropriate skills to review decisions in particular jurisdictions.

90.              Specific requirements would apply to assignments in some Divisions. The Minister would be required to consult with the relevant portfolio Minister before making assignments to the Migration and Refugee Division, National Disability Insurance Scheme Division, Social Services and Child Support Division and Taxation and Commercial Division (new sections 17D, 17E, 17G and 17H of the AAT Act). In addition, members would be required to have specific knowledge or experience to be assigned to the National Disability Insurance Scheme Division (new section 17E of the AAT Act), and cannot be the former Director‑General of Security or an officer or affiliate of the Australian Security Intelligence Organisation to be assigned to the Security Division (new section 17F of the AAT Act).

Members

91.              The amalgamated Tribunal would have four main classes of member (the President, Deputy President, senior members, and other members), classified into seven offices for the purposes of setting appropriate levels of remuneration:

·         President

·         Deputy President

·         senior member (level 1)

·         senior member (level 2)

·         member (level 1)

·         member (level 2), and

·         member (level 3).

92.              Members would be appointed for a maximum of five years (subsection 8(3) of the AAT Act) and would be eligible for reappointment. Members at any level would be eligible for assignment to any Division, although it is expected that the levels of the members generally allocated to particular Divisions may differ based on the complexity of work in a particular Division. Member remuneration and related conditions would be set by the Remuneration Tribunal (section 9 of the AAT Act).

93.              The other terms and conditions of members would generally be determined by the Minister. The President would be responsible for managing a range of issues relating to members, including approval of outside employment (new section 11 of the AAT Act) and grants of leave of absence in accordance with terms and conditions set by the Minister (new section 12).

Procedure

94.              The Bill is designed to maintain key procedures that are essential to the workload of each of the existing Tribunals, while harmonising and simplifying procedures wherever possible.

95.              Examples of procedures that are maintained for particular jurisdictions include:

·         private hearing in relation to first review of social services matters, and all refugee matters, to safeguard the privacy and safety of applicants, and

·         preserving the ability of applicants to make oral applications for first review of social services matters, to meet the particular needs of that jurisdiction.

96.              Where it currently exists, the right to second review of social services and child support matters has been maintained. The specific procedures of the Social Services and Child Support Division would apply to these proceedings on first review; on second review the standard procedures of the General Division would apply. This maintains the procedural differences that currently apply to first and second review of these proceedings in the SSAT and AAT respectively.

97.              A minor amendment would be made so that second review of social services matters may, at the Tribunal’s discretion, be conducted on the papers without the consent of the parties where the Tribunal is satisfied that the review can be adequately determined in the absence of the parties (new subsection 34J(2)). This would assist the Tribunal to ensure second review is conducted efficiently, but is clearly limited to those cases where it would be appropriate.

98.              A range of minor procedural improvements would also be made by the Bill. These are identified where occurring in the Explanatory Memorandum.

Modernisation and simplification

99.              The Bill would take the opportunity to modernise a number of provisions. For example, where provisions in the existing legislation are adequately dealt with by general provisions in the Acts Interpretation Act 1901 they have been removed. Examples include powers to revoke instruments and rules relating to delegations and acting appointments. The drafting of provisions has also been simplified where possible.

Transitional arrangements

100.          Transitional arrangements would provide for Deputy Principal Members, senior members and members of the SSAT, MRT and RRT to transfer to the AAT as senior members and members (Item 5 of Schedule 9). The remuneration of these members would be preserved for the term of their appointment, and terms and conditions would be preserved at commencement (Item 5 of Schedule 9).

101.          Transitional arrangements applying to proceedings would be complex. Accordingly, a regulation-making power has been provided to enable detailed regulations to specify how the old and new law would apply to proceedings that have not been finalised at the date of commencement.


Notes on Clauses

Clause 1—Short title

102.          Clause 1 would provide that this Act may be cited as the Tribunals Amalgamation Act 2014.

Clause 2—Commencement

103.          Clause 2 would provide for the commencement of each provision of the Bill.

Clause 3—Schedules

104.          This clause would provide that any legislation specified in a Schedule to this Act is amended or repealed as set out in the Schedule and any other item in a Schedule to this Act has effect according to its terms


Schedule 1—Amendment of the Administrative Appeals Tribunal Act 1975

Overview

105.          Schedule 1 to the Bill would amend the AAT Act to support the amalgamation.

106.          Key changes include:

·         amendments to put in place a robust governance structure for the amalgamated Tribunal

·         amendments to streamline and harmonise procedure, and

·         amendments to modernise the drafting of the AAT Act.

107.          Item 1 would provide a new objective for the amalgamated Tribunal.

108.          Items 2–14 would amend various relevant definitions.

109.          Items 15–26 would amend provisions of Part II of the AAT Act to provide for the establishment and membership of the amalgamated Tribunal. These amendments would:

·         provide a membership structure for the amalgamated Tribunal, including the President, Deputy Presidents, senior members and other members (Item 16)

·         provide for qualifications for appointment (Item 18), and

·         provide terms and conditions of appointment (Items 19–26).

110.          Items 27–38 would amend Part III of the AAT Act to provide for the organisation of the amalgamated Tribunal. Key amendments include:

·         provisions establishing and allocating business to Divisions, assigning members to Divisions, and providing for assignment of Division heads and deputy Division heads (new sections 17A, 17B, 17C–H, and 17K–L at Item 27)

·         provisions regarding the arrangement of the business of the Tribunal, including the President’s power to make general practice directions (new section 18B at Item 27), and

·         provisions providing the President with powers to make practice directions regarding constitution of the Tribunal, and establishing rules for the constitution and reconstitution of the Tribunal for particular matters (new sections 19A, 19B, and 19D at Item 27).

111.          Items 39–123 would amend Part IV of the AAT Act to provide for procedural rules for the conduct of review by the amalgamated Tribunal. Key amendments include:

·         providing that most of Part IV does not apply to reviews in the Migration and Refugee Division (rules for these proceedings are instead set out in the Migration Act) (section 24Z at Item 39)

·         provisions regarding application procedures (Items 40–52)

·         provisions regarding parties and procedures (Items 41–60)

·         provisions regarding alternative dispute resolution (Items 61–63)

·         provisions regarding hearings and evidence (Items 64–99)

·         provisions regarding procedural powers of the Tribunal (Items 100–118), and

·         provisions regarding the decision of the Tribunal on review (Items 119–123).

112.          Items 124–131 would amend Part IVA of the AAT Act to make minor amendments to provisions for appeals to the federal courts on questions of law, including amendments to preserve existing policy on the availability of appeals on questions of law from certain migration and social services reviews.

113.          Items 132–157 would amend Part VI of the AAT Act, which provides miscellaneous machinery provisions. Key amendments include:

·         provision for authorised members and officers of the Tribunal (Item 132)

·         streamlined and modernised offence provisions (Items 135–144), and

·         a new provision for publication of Tribunal decisions (Item 147).

Amendments to the Administrative Appeals Tribunal Act

Item 1—Section 2A

114.          Item 1 would repeal existing section 2A of the AAT Act and substitute a new section 2A to provide the amalgamated Tribunal’s objective.

115.          Existing section 2A of the AAT Act provides that, in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. Similar objectives are provided:

·         for the MRT‑RRT by subsections 353(1) and 420(1) of the Migration Act, and

·         for the SSAT by subsection 141(1) of the SSA Act, section 110 of the FAA Act, section 214 of the PPL Act, sections 310 of the SA Act, and section 88 of the CSRC Act.

116.          These provisions would be repealed.

117.          The amendment made by Item 1 would preserve existing section 2A as new paragraph 2A(b), and add that the Tribunal must provide a mechanism of review that is:

·         accessible

·         proportionate to the importance and complexity of the matter, and

·         promotes public trust and confidence in the decision-making of the Tribunal.

118.          The addition of these objectives reflects the diversity of the amalgamated Tribunal’s jurisdiction, which would range from simple to highly complex matters, and reiterates the importance of the Tribunal continuing to be, and to be seen to be, an independent forum for review of the merits of Government decisions.

Item 2—Subsection 3(1)

119.          Item 2 would insert a new definition of ‘agency party’ into the AAT Act. Agency party would be defined to mean a party to a proceeding in the Social Services and Child Support Division who is the Secretary of a Department, Chief Executives of Medicare or Centrelink, or the Child Support Registrar.

120.          This definition is necessary to support procedures applying in social services matters, and is used in new or amended sections 32, 39AA, 42A and 43 of the AAT Act.

Item 3—Subsection 3(1)

121.          Item 3 would insert new definitions of ‘authorised officer’, ‘Chief Executive Centrelink’, ‘Chief Executive Medicare’ and ‘child support first review’ into the AAT Act.

122.          ‘Authorised officer’ would be defined to mean an officer of the Tribunal who has been authorised by the President under new section 59B, which would be inserted by Item 131 of Schedule 1 to the Bill.

123.          ‘Chief Executive Centrelink’ would be defined to have the same meaning as in the Human Services (Centrelink) Act 1997. Section 7 of that Act provides that the Chief Executive Centrelink must be an SES employee in the Department specified in a written instrument by the Secretary.

124.          ‘Chief Executive Medicare’ would be defined to have the same meaning as in the Human Services (Medicare) Act 1973. Section 4 of that Act provides that the Chief Executive Medicare must be an SES employee in the Department specified in a written instrument by the Secretary.

125.          ‘Child support first review’ would be defined to mean a proceeding that is or would be a proceeding in the Social Services and Child Support Division on application for AAT first review within the meaning of the CSRC Act.

Items 4 and 6—Subsection 3(1) (definitions of Conference Registrar, Deputy Registrar and District Registrar)

126.          Items 4 and 6 would repeal the definitions of ‘Conference Registrar’, ‘Deputy Registrar’ and ‘District Registrar’ in subsection 3(1) of the AAT Act.

127.          These definitions are no longer necessary, as references to specific types of Registrar would no longer be included in the Act. While positions of this kind would continue to exist in the amalgamated Tribunal, the Act would be simplified by retaining only the concept of ‘officer of the Tribunal’ and introducing the concept of ‘authorised officers of the Tribunal’ provided in new section 24PA (inserted by Item 35) and new section 59B (inserted by Item 131). The Registrar and the President of the AAT would appoint and authorise designated members of staff of the Tribunal and certain other persons as officers and authorised officers of the Tribunal for the purposes of this Act and any other enactment. New section 10A (inserted by Item 25) would also enable the Registrar to delegate to an officer of the Tribunal any or all of his or her powers or functions under this Act or another enactment.

Item 5—Subsection 3(1) (definition of Deputy President)

128.          Item 5 would repeal the definition of ‘Deputy President’ in subsection 3(1) of the AAT Act and replace it with a new definition.

129.          Deputy President is currently defined to mean a member appointed as a Deputy President of the Tribunal after the commencement of Part III of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982. As there are no longer any Deputy Presidents appointed before the commencement of that Act on 4 June 1982, this definition can be simplified.

130.          Accordingly, Deputy President would be defined to mean a member appointed as a Deputy President of the Tribunal.

Item 7—Subsection 3(1)

131.          Item 7 would insert definitions of ‘engage in conduct’, and ‘immigration advisory service’ into subsection 3(1) of the AAT Act.

132.          ‘Engage in conduct’ would be defined to have the same meaning as in the Criminal Code.

133.          ‘Immigration advisory service’ would be defined to mean a body providing services to assist non-citizens to seek permission to enter or remain in Australia. The definition is modelled on the definition provided in sections 403 and 468 of the Migration Act, and is used in new subsection 13(3) which would be inserted by Item 25 to replace those provisions.

Item 8—Subsection 3(1) (definition of member)

134.          Item 8 would repeal the existing definition of ‘member’ in subsection 3(1) of the AAT Act and replace it with a new definition.

135.          ‘Member’ is currently defined in the AAT Act to mean a presidential member, a senior member, or any other member of the tribunal.

136.          The revised definition inserted by Item 8 would include the President, a Deputy President, a senior member, and any other member. This revised definition better reflects the membership structure of the Tribunal that would be set out by new section 5A inserted by Item 16.

Item 9—Subsection 3(1) (definition of officer of the Tribunal)

137.          Item 9 would repeal the existing definition of ‘officer of the Tribunal’ in subsection 3(1) of the AAT Act and replace it with a new definition.

138.          ‘Officer of the Tribunal’ is currently defined to mean the Registrar, a District Registrar, a Conference Registrar or a Deputy Registrar.

139.          The revised definition of ‘officer of the Tribunal’ would provide that the term means the Registrar, or an officer of the Tribunal under section 24PA, which would be inserted by Item 35.

140.          This reflects the replacement of references to specific types of Registrar with the concepts of ‘officer of the Tribunal’ and ‘authorised officer of the Tribunal’ in new sections 24PA and 59B that would be inserted by Items 35 and 131.

Item 10—Subsection 3(1) (definition of presidential member)

141.          Item 10 would repeal the existing definition of ‘presidential member’ in subsection 3(1) of the AAT Act and replace it with a new definition.

142.          ‘Presidential member’ is currently defined to mean the President, a member who is a Judge, or a Deputy President.

143.          Item 17 would amend subsection 6(2) of the AAT Act to provide that a Judge who is appointed as a member of the Tribunal would be appointed as the President or a Deputy President. Item 10 would simplify the definition of ‘presidential member’ to reflect this change in approach.

Item 11—Subsection 3(1) (paragraph (c) of the definition of proceeding)

144.          Item 11 would repeal paragraph (c) of the existing definition of ‘proceeding’ in the AAT Act and replace it with a new paragraph.

145.          Existing paragraph (c) provides that a proceeding, in relation to the Tribunal, includes an application to the Tribunal for review of a decision by the Registrar, a District Registrar or a Deputy Registrar taxing any costs ordered by the Tribunal to be paid.

146.          The new paragraph (c) that would be inserted by Item 11 simplifies this provision, and removes the references to specific types of Registrars in the Act.

Item 12—Subsection 3(1)

147.          Item 12 would insert a new definition of ‘second review’ into subsection 3(1) of the AAT Act.

148.          ‘Second review’ would be defined to mean a review designated as ‘AAT second review’ in another enactment that authorises applications to be made for review of the decision.

149.          This definition is necessary to support the maintenance of the right of second review of certain social services matters.

Item 13—Subsection 3(1) (definition of senior member)

150.          Item 13 would repeal the definition of ‘senior member’ in subsection 3(1) of the AAT Act and insert a new definition.

151.          ‘Senior member’ is currently defined by subsection 3(1) to mean a senior member of the Tribunal.

152.          The revised definition is intended to clarify that references to senior member in the AAT Act include both senior members level 1 and senior members level 2 as provided for in new subsection 6(3), which would be inserted by Item 17.

Item 14—Subsection 3(1) (definition of Small Taxation Claims Tribunal)

153.          Item 14 would repeal the definition of ‘Small Taxation Claims Tribunal’. The definition would no longer be necessary as a consequence of the repeal of provisions in relation to that Tribunal by Item 16.

Item 15—Section 5

154.          Item 15 would amend section 5 of the AAT Act to omit references to the various categories of member that can be appointed under the Act.

155.          As amended, section 5 would provide for the establishment of the AAT. The intention is that the existing AAT should be continued in existence.

156.          Provisions relating to the categories and levels of membership and appointment would be dealt with by new section 5A and amended section 6, which are dealt with in Items 16 and 17.

Item 16—Before section 6

157.          Item 16 would amend the AAT Act by inserting a new section 5A to provide that the Tribunal consists of the President, Deputy Presidents, senior members, and other members.

158.          This provision is currently part of section 5 of the AAT Act, but would be separated out to enhance the readability of the Act.

Item 17—Subsections 6(2) and (3)

159.          Item 17 would amend the AAT Act by repealing subsections 6(2) and 6(3) and replacing them with new provisions.

160.          Existing subsection 6(2) of the AAT Act provides that a Judge who is to be appointed as a member (other than the President) is to be appointed as a presidential member.

161.          New subsection 6(2) would provide that a Judge who is to be appointed as a member of the Tribunal is to be appointed either as the President or as a Deputy President.

162.          Existing subsection 6(3) of the AAT Act provides that a person other than a Judge who is appointed as a member is to be appointed as a Deputy President, senior member, or as a member of the tribunal.

163.          New subsection 6(3) would provide that a person other than a Judge is to be appointed as either a Deputy President, or a senior member (level 1 or 2), or a member (level 1, 2 or 3).

164.          This new membership structure is intended to allow a range of appointments to reflect the wide range of work that would be undertaken in the amalgamated Tribunal. The differences in the work undertaken by the AAT, MRT‑RRT and SSAT is currently reflected in differences in remuneration under Remuneration Tribunal determinations. The six levels of member provided under the President would provide sufficient flexibility to ensure that the appropriate expertise is available to allocate to work in each of the Tribunal’s Divisions.

Item 18—Section 7

165.          Item 18 would repeal section 7 of the AAT Act and replace it with a new provision providing simplified qualifications for appointment across all Divisions of the Tribunal.

166.          Existing section 7 provides the following qualifications for appointment to the AAT:

President (existing subsection 7(1))

·         A Judge of the Federal Court of Australia

Deputy President (existing subsection 7(1AA))

·         A legal practitioner enrolled in the High Court or the Supreme Court of a State or Territory for at least 5 years.

Senior Member (existing subsection 7(1B))

·         A legal practitioner enrolled in the High Court or the Supreme Court of a State or Territory for at least 5 years, or

·         has in the opinion of the Governor-General, special knowledge or skill relevant to the duties of a senior member.

Non-presidential member (existing subsection 7(2))

·         A legal practitioner enrolled in the High Court or the Supreme Court of a State or Territory, or

·         has at least 5 years’ experience at a high level in industry, commerce, public administration, industrial relations, a profession or government, or

·         has a university degree or equivalent qualification considered by the Governor‑General to have substantial relevance to the duties of such a member, or

·         has, in the opinion of the Governor‑General, special knowledge or skill in relation to any class of matters in respect of which decisions may be made under an enactment which confers jurisdiction on the Tribunal.

167.          There are no equivalent qualification provisions that apply to the MRT‑RRT or the SSAT.

168.          New section 7 would substantially simplify these qualifications while retaining a requirement of significant and appropriate knowledge and skill for all appointments to the Tribunals, which reflects the possible range of expertise that could benefit the Tribunal. The new qualifications provisions would be as follows:

President (new subsection 7(1))

·         A Judge of the Federal Court of Australia

Deputy President (new subsection 7(2))

·         A Judge of the Federal Court of Australia or the Family Court of Australia

·         A legal practitioner enrolled in the High Court or the Supreme Court of a State or Territory for at least 5 years, or

·         A person who, in the opinion of the Governor-General, has special knowledge or skills relevant to the duties of a Deputy President.

Senior member and other members (new subsection 7(3))

·         A legal practitioner enrolled in the High Court or the Supreme Court of a State or Territory for at least 5 years, or

·         has in the opinion of the Governor-General, special knowledge or skills relevant to the duties of a senior member or member.

169.          Key changes in these provisions would be:

·         to open the role of Deputy President to non-lawyers, to reflect that equivalent positions in the MRT‑RRT and SSAT do not have such a requirement and that there are special knowledge or skills other than legal qualifications that may make an individual suitable for the role, and

·         simplifying drafting of the qualifications for senior members and members.

170.          The revised qualification requirements for senior members and members do not change the policy of these provisions. The category of ‘special knowledge or skills’ encompasses all of the more specific qualification provisions currently provided by existing subsection 7(2).

Item 19—Subsection 8(3)

171.          Item 19 would amend subsection 8(3) of the AAT Act to replace the words ‘7 years’ with ‘5 years’.

172.          Existing subsection 8(3) of the AAT Act provides a maximum period of appointment to the Tribunal of seven years. The maximum period of appointment for both the MRT‑RRT and SSAT is five years (Migration Act, sections 398 and 461; SSA Act, Schedule 3, clause 4).

173.          As a matter of practice, and in compliance with section 2.7 of the Australian Public Service Commission Merit and Transparency Guidelines (<http://www.apsc.gov.au/publications-and-media/current-publications/merit-and-transparency>), all appointments to the AAT are presently made for no more than five years.

174.          This amendment would align the maximum period of appointment with this existing practice and with the Merit and Transparency Guidelines.

Item 20—Subsection 8(4)

175.          Item 20 would amend subsection 8(4) of the AAT Act by removing word ‘presidential’.

176.          Existing subsection 8(4) provides that a presidential member who is a Judge ceases to hold office as a member if he or she ceases to be a Judge.

177.          However, as all members of the amalgamated Tribunal who are Judges would be either the President or a Deputy President, the word ‘presidential’ is unnecessary, and can be removed to simplify the drafting of the provision. This amendment is not intended to change the policy of the provision.

Item 21—Subsection 8(7)

178.          Item 21 would amend subsection 8(7) of the AAT Act to replace the word ‘prescribed’ with ‘determined by the Minister in writing’.

179.          Existing subsection 8(7) provides that, subject to Part II of the AAT Act, a member holds office on such terms and conditions as are prescribed. Similar provisions exist in the Migration Act (empowering the Minister: sections 400 and 465) and the SSA Act (empowering the Governor‑General: Schedule 3, clause 5).

180.          This amendment would allow member terms and conditions for the amalgamated Tribunal to be set by the Minister. Given the very substantial number of statutory officers in the amalgamated Tribunal, it is appropriate to allow a simpler procedure for setting terms and conditions than by making Regulations. Remuneration entitlements for members would continue to be set by the Remuneration Tribunal as provided by existing section 9.

Item 22—Subsections 10(1) to (4)

181.          Item 22 would repeal subsections 10(1)–(4) of the AAT Act, and replace them with new subsections 10(1)–(3).

182.          Existing subsections 10(1)–(3) provide for an acting President, and acting Deputy Presidents and non‑presidential members. Similar provisions for the MRT‑RRT and SSAT can be found in sections 404 and 469 of the Migration Act, and clauses 6–9 of Schedule 3 to the SSA Act. In addition, existing subsection 10(4) of the AAT Act provides that a person must not be appointed as an acting senior member or acting member unless the person meets the qualification requirements for those categories of membership.

183.          New subsection 10(1) would provide that the Minister may, by written instrument, appoint a Judge of the Federal Court to act as President during a vacancy in the office of President, or during any period when the President is absent from duty or is unable to perform the duties of the office. This provision preserves the policy of existing subsection 10(1).

184.          New subsection 10(2) would empower the Minister to make acting appointments for all members other than the President, during periods when a full-time member is absent from duty, or when a part-time member is unavailable to perform the duties of office. In practice, it is anticipated that this power would be delegated by the Minister to the President.

185.          New subsection 10(3) would provide that a person must not be appointed to act in an office under new subsections 10(1) or 10(2) unless the person meets the requirements in section 7 for appointment to that office.

186.          The new provisions preserve the substance of the existing provisions with significantly simplified drafting.

187.          Given the very substantial number of statutory officers in the amalgamated Tribunal, the power to make acting appointments has been given to the Minister. This is a more practical option than requiring the Governor‑General to make all acting appointments. As acting appointments are generally short-term, and in accordance with paragraph 33A(1)(ba) of the Acts Interpretation Act cannot continue for more than 12 months, this approach should not affect Tribunal independence.

Item 23—Subsection 10(5)

188.          Item 23 would amend subsection 10(5) of the AAT Act by omitting the words ‘or (3)’ as a consequence of the amendments made by Item 22, which would consolidate the rule in existing subsection 10(3) into new subsection 10(2).

Item 24—Subsections 10(7) to (11)

189.          Item 24 would repeal existing subsections 10(7)–(11) of the AAT Act, and insert a new subsection 10(7).

190.          Existing subsection 10(7) provides that a person acting as a Deputy President or as a non‑presidential member shall act in that capacity on such terms or conditions as the Minister determines.

191.          New subsection 10(7) re-enacts this rule with simpler drafting. The new provision maintains existing policy.

192.          Existing subsections 10(9)–(11) provide rules relating to the resignation, exercise of powers and validity of decisions made by acting members. These rules are adequately covered by the standard provisions found in sections 33AB and 33A of the Acts Interpretation Act, and are accordingly repealed. Removal of these provisions does not affect existing policy.

Item 25—Section 10A

193.          Item 25 would repeal existing section 10A of the AAT Act and substitute a new section 10A.

194.          Existing section 10A of the AAT Act empowers the President to delegate to a member any or all of the President’s powers under the Act, except for the power of delegation.

195.          New section 10A would more comprehensively provide for delegations by the Minister, the President and the Registrar, as follows:

·         the Minister would be able to delegate the Minister’s powers and functions to the President

·         the President would be able to delegate the President’s powers and functions to a member of the Tribunal, and

·         the Registrar would be able to delegate the Registrar’s powers and functions to an officer of the Tribunal or a member of the staff of the Tribunal.

196.          New subsection 10A(4) would provide that in exercising powers or performing functions under a delegation, the delegate must comply with any directions of the delegator.

197.          It is appropriate to allow for delegation of the full range of the powers and functions of each of these officers. The management responsibilities of the amalgamated Tribunal for each of these officers would be administratively burdensome for any individual. The classes of persons to whom delegations may be made under each of new subsections 10A(1)–(3) has been chosen to ensure that delegates are at an appropriate level given the functions that may be delegated to them.

198.          Sections 34AA, 34AB and 34A of the Acts Interpretation Act provide general rules for delegations that would apply to delegations made under new section 10A.

Item 26—Sections 11 to 14

199.          Item 26 would repeal existing sections 11 (outside employment), 12 (leave of absence), 13 (removal from office) and 14 (disclosure of interests by members) of the AAT Act, and substitute new sections 10A (delegation), 11 (outside employment), 12 (leave of absence), 13 (termination of appointment (not Judges)), and 14 (disclosure of interests by members).

Outside employment (existing section 11; new section 11)

200.          Existing section 11 of the AAT Act provides that a full-time member shall not, except with the consent of the Minister, engage in paid employment outside the duties of his or her office. However, the Minister’s consent is not required to hold an office or appointment in the Defence Force. A similar provision appears for the SSAT in subclause 15(1) of Schedule 3 to the SSA Act, and is implied by paragraphs 403(2)(g) and 468(2)(g) of the Migration Act, which provide a ground of termination for a full-time member engaging in paid employment without the written approval of the Minister.

201.          New section 11 would make a similar provision, with the following changes:

·         outside employment of full-time members should be approved by the President rather than the Minister

·         part-time members must not engage in paid employment that, in the President’s opinion, conflicts or may conflict with the proper performance of the member’s duties.

202.          Given the large numbers of members in the amalgamated Tribunal, it is appropriate that the President should have the power to approve outside employment. This power may be delegated to Division heads under new section 10A.

203.          The inclusion of a provision regarding paid employment of part-time members is important to allow the Tribunal to independently manage the possibility of conflicts of interest amongst these members, most of whom would have roles in addition to their Tribunal responsibilities.

Leave of absence (existing section 12; new section 12)

204.          Existing section 12 of the AAT Act provides that:

·         a full-time member has the recreation leave entitlements determined by the Remuneration Tribunal, and

·         the Minister may grant a full-time member leave of absence, other than recreation leave, on the terms and conditions that the Minister determines.

205.          New section 12 re-enacts this provision with the following changes:

·         the power to grant full-time members leave other than recreation leave would be transferred to the President, and

·         a new power would be introduced for the President to grant leave of absence to part‑time members on the terms and conditions that the President determines.

206.          The transfer of the power to grant leave other than recreation leave to the President, and the introduction of a power for the President to grant leave to part‑time members, would allow the Tribunal to independently manage its resourcing and workload.

Termination of appointment (not Judges)(existing section 13; new section 13)

207.          Existing section 13 of the AAT Act provides a procedure for terminating or suspending officers of the Tribunal. The Governor‑General may remove a member from office on an address from each House of Parliament in the same session of Parliament asking for the member’s removal on the ground of proved misbehavior or incapacity. Procedures are also provided for suspension of members. Existing subsections 13(12)–(14) provide rules relating to retirement for invalidity for members who are covered by the CSS, PSS or PSSap superannuation schemes.

208.          This provision is consistent with the termination provisions that apply to the MRT‑RRT (Migration Act, sections 403 and 468) and SSAT (clause 17 of Schedule 3 to the SSA Act), which more closely reflect the standard model for termination of statutory officers. Maintenance of the suspension provisions is not necessary. In the event that a member is suspected of conduct that would warrant termination, the President would be able to effectively suspend a member by exercising the power to reconstitute the Tribunal in any proceedings that the member is involved in.

209.          New section 13 would replace these rules with termination provisions closely based on the standard Commonwealth model for termination provisions. This provision would only allow a member to be terminated on clearly specified grounds, including:

·         misbehaviour

·         inability of the member to undertake the duties of the member’s office due to physical or mental incapacity

·         bankruptcy and related grounds

·         absence without leave

·         engaging in outside employment without the approvals required by new section 11, and

·         failing to disclose interests as required by new section 14.

210.          A specific ground of termination where a member has a direct or indirect pecuniary interest in an immigration advisory service is also provided. This recognises the specialised nature of the Migration and Refugee Division and the potential for members assigned to that Division to have ties with, or a background in immigration assistance that may give rise to a conflict of interest. This is modelled on paragraphs 403(2)(e) and 468(2)(e) of the Migration Act, which currently apply to the MRT‑RRT.

211.          Importantly, new section 13 would not apply to members who are Judges.

212.          New section 13 balances the need to ensure members have sufficient tenure in their offices to be able to act independently of Government, and need to ensure that officers who behave inappropriately, have irreconcilable conflicts of interest or who are unable to perform their duties can have their appointments terminated.

Disclosure of interests by members (existing section 14; new section 14)

213.          Existing section 14 of the AAT Act requires members to disclose interests that could conflict with the proper performance of their duties in relation to a proceeding, and provides that members can then only participate in a proceeding with the consent of the parties. Under existing subsection 14(2), the President is also empowered to prevent a member from participating in a proceeding if the President becomes aware that the member has a conflict, or to require the member to disclose the conflict to the parties.

214.          Rules for disclosure of conflicts of interests are also provided in slightly different terms for the MRT‑RRT by sections 402 and 467 of the Migration Act.

215.          New section 14 would re-enact section 14 with improvements modelled on the Migration Act provisions. In particular:

·         the member would be required to disclose their conflict to the President (or if the member is the President, to the Minister) as well as to the parties

·         the member would be prohibited from participating in the proceeding without the President’s consent (or the Minister’s, if the member is the President) in addition to requiring the parties’ consent, and

·         a new provision (subsection 14(2)) would be included to clarify that a member would have a conflict of interest where the member has any interest that could conflict with the proper performance of the member’s functions in relation to the proceeding. This reflects the wording of existing subsection 14(1).

Item 27—Parts III and IIIAA

216.          Item 27 would repeal Parts III and IIIAA of the AAT Act, which provide rules for the organisation of the Tribunal and for the Small Taxation Claims Tribunal.

217.          Part III would be re-enacted to provide comprehensive rules for the organisation of the amalgamated Tribunal.

218.          Division 1 of Part III would include provisions regarding Divisions of the Tribunal, to:

·         establish the Divisions of the Tribunal (new section 17A)

·         allocate business to the Divisions (new section 17B)

·         establish procedures for assigning members to Divisions (new Subdivision B, sections 17C–17J), and

·         establish the roles of Division head (new section 17K) and deputy Division head (new section 17L).

219.          Division 2 of Part III would include provisions regarding the arrangement of the business of the Tribunal, to:

·         provide the President with responsibility for arranging the business of the Tribunal (new section 18A)

·         empower the President to make practice directions regarding the arrangement of business (new section 18B), and

·         provide for sittings of the Tribunal (new section 18C).

220.          Division 3 of Part III would include provisions regarding the constitution of the Tribunal (that is, the selection of members to deal with particular proceedings), to:

·         empower the President to make directions as to the constitution of the Tribunal (new section 19A)

·         provide rules for the constitution (new sections 19B and 19C) and reconstitution (new section 23) of the Tribunal, and

·         provide rules for the constitution and reconstitution of the Security Division of the Tribunal (new sections 19E and 19F).

221.          Part IIIAA of the AAT Act, which establishes the concept of a ‘Small Taxation Claims Tribunal’ would not be replaced. The Small Taxation Claims Tribunal is part of the AAT. The Taxation Appeals Division is known as the Small Taxation Claims Tribunal when dealing with applications for review of certain types of tax decisions, including where the amount of tax in dispute is less than $5,000 and where the decision relates to release from paying a tax debt (regardless of the amount involved). The principal result of a matter being heard in the Small Taxation Claims Tribunal is that a lower application fee is payable. The lower application fee for these types of taxation matters would be maintained in the Tribunal’s fee structure. However, it is not necessary to maintain Part IIIAA to achieve this, and it would accordingly be repealed.

New section 17A—Divisions of the Tribunal

222.          New section 17A would re-enact existing subsections 19(1) and (2) of the AAT Act to provide that the Tribunal is to exercise its powers in six core Divisions, and any further Divisions to be established by Regulations.

223.          It is intended that the business of the existing Divisions and Tribunals would be allocated as follows:

New Division

Existing Division/Tribunal

General Division

General Administrative Division

 

Migration and Refugee Division

Migration Review Tribunal

Refugee Review Tribunal

National Disability Insurance Scheme Division

National Disability Insurance Scheme Division

Security Division

Security Appeals Division

Social Services and Child Support Division

Social Security Appeals Tribunal

Taxation and Commercial Division

Taxation Appeals Division

Veterans’ Appeals Division (to be established by Regulation)

Veterans’ Appeals Division

N/A

Medical Appeals Division

Valuation and Compensation Division

224.          The Medical Appeals Division and the Valuation and Compensation Division would not be maintained in the new Tribunal as they are not presently used.

New section 17B—Allocation of business to Divisions

225.          New section 17B would provide rules for determining which Division should hear particular types of matters.

226.          Under new subsection 17B(1), allocation of particular types of proceedings to Divisions would be undertaken by Regulations, or, if Regulations do not provide for the allocation of a particular type of proceeding to a Division, by Presidential practice directions. However, migration and refugee applications would be reviewable only in the Migration and Refugee Division under new subsections 336N(2) and 409(2) of the Migration Act, which would be inserted by Items 26 and 71 of Schedule 2 to the Bill.

227.          New subsection 17B(2) would provide that certain powers relating to the Australian Security Intelligence Organisation (ASIO) or its records would only be exercised by the Tribunal in the Security Division. This provision preserves the policy of existing subsection 19(6) of the AAT Act.

New section 17C—Assignment of members to Divisions

228.          New section 17C would provide rules for the assignment of members to Divisions.

229.          Assignment of members is critical to organising the business of the Tribunal by allocating members to Divisions in which they have particular expertise.

230.          Process for assigning members: the Minister must assign a non‑presidential member to one or more Divisions of the Tribunal (new subsection 17C(1)). Before doing so, the Minister must consult the President (new subsection 17C(2)). An assignment may only be varied with the consent of the member (new subsection 17C(3)). The requirement of consent before variation of an assignment is critical to maintaining Tribunal independence, by ensuring that members cannot be arbitrarily reallocated. These provisions reflect the requirements of existing subsections 19(3) and 19(3AA) of the AAT Act. Additional requirements for assignment to particular Divisions would be provided by new sections 17D‑19EA.

231.          Effect of assignment: A non‑presidential member (that is, a senior member or other member) may only exercise the powers of the Tribunal in a Division to which the member is assigned (new subsection 17C(4)). It is important to note that presidential members (the President and Deputy Presidents) are accordingly able to exercise powers in any Division of the Tribunal, without a requirement of assignment. This would enable presidential members to sit across the Tribunal on more complex matters.

232.          Assignment not a legislative instrument: new subsection 17C(5) would provide that if an assignment is made in writing, the assignment is not a legislative instrument. This provision is included to assist readers. An instrument of assignment is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003.

New sections 17D–17H: requirements for assignment to particular Divisions

233.          New sections 17D–17H provide requirements for assignment to particular Divisions.

234.          Consultation requirements: The Minister would be required to consult with other Ministers before assigning a member to particular Divisions, as follows:

Division

Minister to be consulted

Provision

Migration and Refugee Division

The Minister administering the Migration Act

New section 17D

National Disability Insurance Scheme Division

The Minister administering the National Disability Insurance Scheme Act 2013

New subsection 17E(1)

Social Services and Child Support Division

The Minister administering the SSA Act

New section 17G

Taxation and Commercial Division

The Treasurer

New section 17H

235.          The consultation requirements for the National Disability Insurance Scheme Division and the Taxation and Commercial Division reflect the requirements of existing subsections 19(3C) and 19(3A) respectively. The consultation requirements for assignment to the Migration and Refugee Division and the Social Services and Child Support Division are appropriate given the need for members exercising powers in those Divisions to have specific subject‑matter expertise.

236.          Requirement for appointment to particular Divisions: specific requirements would also be provided for assignment to particular Divisions, as follows:

Division

Requirement

Provision

National Disability Insurance Scheme Division

The Minister must be satisfied that the member:

·         has training, knowledge or experience related to disability, or

·         has other relevant knowledge or experience that would assist the member in considering matters relating to the NDIS.

New subsection 17E(2)

Security Division

The member must not be, or have been:

·         the Director‑General of Security, or

·         an ASIO employee or ASIO affiliate

New section 17F

237.          The requirements of new subsection 17E(2) and section 17F reflect the existing requirements in subsections 19(3D) and (3B) respectively.

New section 17J—Validity

238.          New section 17J would provide that new sections 17A–17H of the AAT Act do not affect the validity of any exercise of powers by the Tribunal. New section 17J reproduces the policy of existing subsection 19(5).

New section 17K—Division heads

239.          New section 17K would create a new role of Division heads for the amalgamated Tribunal. This reflects the expansion in the workload of the Tribunal as a consequence of the amalgamation and provides a structure for more specialised management of the workload of particular Divisions.

240.          Process for assigning Division heads: new subsection 17K(1) would provide that the Minister may assign a Deputy President to be the head of one or more Divisions. The limitation of eligibility for the role of Division heads to Deputy Presidents reflects the significant responsibility and skills required of Division heads.

241.          Before making a Division head assignment, the Minister would be required to consult the President (new paragraph 17K(2)(a)), and to comply with the same requirements as apply to assigning a non‑presidential member to the relevant Division (new paragraph 17K(2)(b) and subsection 17K(3)). As set out above, these include ministerial consultation requirements for certain Divisions, specific qualification for assignment to the National Disability Insurance Scheme Division, and restrictions on who may be assigned to the Security Division.

242.          New subsection 17K(4) would provide that if the assignment of a Division head is made in writing, the assignment is not a legislative instrument. This provision is included to assist readers. An instrument of assignment would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act.

243.          New subsection 17K(5) would provide that:

·         an assignment as a Division head must be for the duration of a person’s appointment as Deputy President

·         may be varied only with the Division head’s consent, and

·         cannot be revoked.

244.          These restrictions on assignments of Division heads are intended to promote Tribunal independence by providing stability to assignments, and ensuring that Division heads’ assignments can only be varied with the Division head’s consent.

245.          Function of Division heads: new subsection 17K(6) would provide that the head of a Division has the function of assisting the President in the performance of the President’s functions by directing the business of the Tribunal in the Division. In practice, it is expected that the President would delegate a range of functions to Division heads for matters arising within their respective Divisions.

246.          Acting Division heads: new subsection 17K(7) would provide that the Minister may assign a Deputy President or a senior member to act as head of a Division when the Division head is absent from duty or outside Australia. The provision would clarify that such an acting assignment is taken to be an appointment for the purposes of the Acts Interpretation Act. As a result, the standard rules provided by section 33A of the Acts Interpretation Act for acting appointments would apply. These include:

·         provision that the acting Division head has and may exercise all the powers, and must perform all the functions and duties, of the holder of the office

·         a limitation of acting appointments to 12 months

·         provision for the terms and conditions of acting appointments, and

·         rules for resignation

amongst others.

New section 17L—Deputy Division heads

247.          New section 17L would create new roles of deputy Division heads for the amalgamated Tribunal. This reflects the expansion in the workload of the Tribunal as a consequence of the amalgamation and provides a structure for more specialised management of the workload of particular Divisions. It is envisaged that deputy Division heads would only be required in larger Divisions, particularly the Migration and Refugee Division and the Social Services and Child Support Division.

248.          Process for assigning deputy Division heads: the process for assigning a deputy Division head would be similar to the process provided for assigning a Division head by new section 17K. The Minister would be able to assign a Deputy President or senior member to be the deputy head of one or more Divisions (new subsection 17L(1)).

249.          Before doing so, the Minister would be required to consult the President (new paragraph 17L(2)(a)), and to comply with the same requirements for assigning a non‑presidential member to the relevant Division (new paragraph 19GA(2)(b) and subsection 19GA(3)). As set out above, these include ministerial consultation requirements for certain Divisions, specific qualification for assignment to the National Disability Insurance Scheme Division, and restrictions on who may be assigned to the Security Division.

250.          New subsection 17L(4) would provide that if the assignment of a deputy Division head is made in writing, the assignment is not a legislative instrument. This provision is included to assist readers. An instrument of assignment would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act.

251.          New subsection 17L(5) would provide that:

·         an assignment as a deputy Division head must be for the duration of a person’s appointment as Deputy President

·         may be varied only with the deputy Division head’s consent, and

·         cannot be revoked.

252.          These restrictions on assignments of deputy Division heads are intended to promote Tribunal independence by providing stability to assignments, and ensuring that deputy Division heads’ assignments can only be varied with the deputy Division head’s consent.

253.          Function of deputy Division heads: new subsection 17L(6) would provide that the deputy Division head has the function of assisting the head of the Division in the performance of the head of the Division’s functions. The head of the Division’s function would be defined by new subsection 17K(6) as assisting the President in the performance of the President’s functions by directing the business of the Tribunal in the Division.

254.          Acting deputy Division heads: new subsection 17L(7) would provide that the Minister may assign a member to act as deputy head of a Division when the deputy Division head is absent from duty or outside Australia. The provision would clarify that such an acting assignment is taken to be an appointment for the purposes of the Acts Interpretation Act. As a result, the standard rules provided by section 33A of the Acts Interpretation Act for acting appointments would apply. These include:

·         provision that the acting deputy Division head has and may exercise all the powers, and must perform all the functions and duties, of the holder of the office

·         a limitation of acting appointments to 12 months

·         provision for the terms and conditions of acting appointments, and

·         rules for resignation

amongst others.

New section 18A—Arrangement of business

255.          New section 18A would provide that, subject to the Act and regulations, the President is responsible for ensuring:

·         the expeditious and efficient discharge of the business of the amalgamated Tribunal, and

·         that the Tribunal pursues the objective in new section 2A.

256.          New section 18A reflects the policy of existing subsection 20(1) of the AAT Act, which provides that the President is responsible for ensuring the expeditious and efficient discharge of the business of the Tribunal. However, new section 18A makes more explicit the President’s responsibility to ensure that the Tribunal pursues the objective in new section 2A to provide a mechanism of review that:

·         is accessible

·         is fair, just, economical, informal and quick

·         is proportionate to the importance and complexity of the matter, and

·         promotes public trust and confidence in the decision making of the Tribunal.

New section 18B—President’s directions—arrangement of business

257.          New section 18B would provide for the President’s power to make practice directions for the Tribunal.

258.          New subsection 18B(1) would empower the President to make written directions in relation to:

·         the operations of the Tribunal

·         the procedure of the Tribunal

·         the conduct of reviews by the Tribunal

·         the arrangement of the business of the Tribunal, and

·         the places at which the Tribunal may sit.

259.          New subsection 18B(1) is intended to reproduce the policy of existing subsections 20(2) and (4) of the AAT Act with simplified drafting. Practice directions made under new subsection 18B(1) would be able to apply across the Tribunal, or to particular Divisions. It is expected that the President would consult closely with Division heads on practice directions affecting their Divisions.

260.          In addition, new subsections 18B(2) and (3) provide new rules to clarify the effect of practice directions:

·         New subsection 18B(2) would provide that a failure by the Tribunal to comply with a direction does not invalidate anything done by the Tribunal. This rule is intended to prevent Tribunal decisions being overturned due to minor non-compliance with practice directions. However, the Tribunal would nevertheless be required to comply with the provisions of the Act and the requirements of administrative law.

·         New subsection 18B(3) would provide that if the Tribunal deals with a proceeding in a way that complies with directions given under the section, the Tribunal is not required to take any other action in dealing with the proceeding.

261.          New subsection 18B(4) would make specific provision for directions relating to the provision of documents under sections 37 and 38AA of the AAT Act to ensure those provisions operate as effectively as possible for the purposes of reviews.

New section 18C—Sittings of Tribunal

262.          New section 18C would provide that sittings of the Tribunal are to be held from time to time as required, in such places in Australia or an external Territory as are convenient. New section 18C reflects the policy of existing section 20A with simplified drafting.

New section 19A—President’s directions—constitution

263.          New section 19A would empower the President to make directions relating to the constitution of the Tribunal, and presiding members.

264.          Constitution: New paragraph 19A(1)(a) would provide that the President may give written directions in relation to the member or members who are to constitute the Tribunal for the purposes of a proceeding. This reproduces the policy of existing subsection 20B(1).

265.          Presiding member: New paragraph 19A(1)(b) would provide that the President may give written directions as to the member to preside on multi‑member panels. New subsection 20B(2) would provide that the President cannot make directions as to the member to preside in a proceeding in the Security Division. Specific rules relating to the presiding member in such proceedings would be provided by new subsections 19E(4) and 19F(4). The ability of the President to make directions as to the member to preside replaces the existing complex policy of section 22 of the AAT Act, which provides a complex series of rules for determining the presiding member based on seniority. This change would provide the President with greater flexibility in managing the business of the Tribunal and significantly simplify the drafting of the Act. The exception for the Security Division reflects the existing policy of sections 21AA(4) and 21AB(9) of the AAT Act.

New section 19B—Constitution

266.          New section 19B would provide rules governing the constitution of the Tribunal (that is, the selection of the particular member or members who would hear the application for the Tribunal).

267.          General rule for constitution of the Tribunal: New subsection 19B(1) would provide that the Tribunal as constituted for the purposes of a proceeding

·         must not have more than three members (unless another provision of the AAT Act or another enactment provides otherwise), and

·         must not have more than one member who is a Judge.

268.          New subsection 19B(1) reproduces the policy of existing subsections 21(1) and 21(1AA) and subsection 354(1) of the Migration Act, but differs from existing policy for the SSAT (which allows constitution by up to four members under existing clause 11 of Schedule 3 to the SSA Act), and the RRT (which only allows single-member panels under existing subsection 421(1) of the Migration Act). It is anticipated that the Tribunal would, consistently with current practice, generally be constituted by single-member panels, with use of multi-member panels reserved for particularly complex or novel matters, and the small number of provisions which require them (for example, new subsection 21AA(2) in relation to certain reviews in the Security Division).

269.          Exercise of powers before the hearing commences: new subsection 19B(2) would provide that, at any time before the hearing of a proceeding commences, the powers of the Tribunal in relation to the proceeding may be exercised by the President or an authorised member. Members would be authorised by the President under new section 59A inserted by Item 132.

270.          This provision allows the Tribunal flexibility in dealing efficiently with issues arising before the hearing of an application and reflects the policy of existing paragraph 21(1A)(a) of the AAT Act. However, while existing paragraph 21(1A)(a) empowers presidential members and authorised members to exercise these powers, new subsection 19B(2) would empower the President and authorised members. In practice, it is expected that the President would authorise all Deputy Presidents, as well as other members in accordance with the existing practice of the tribunals.

271.          New subsection 19B(3) would provide that certain powers cannot be exercised by the President or an authorised member in the pre‑hearing phase under new subsection 17D(2). These include:

·         the power under section 34J to review a proceeding on the papers without a hearing

·         the power under section 43 to make a decision on the proceeding

·         the power under section 59 for the Tribunal to give an advisory opinion, and

·         any powers required or permitted to be exercised by specific persons by the Act or another enactment, or by the Tribunal as constituted in accordance with the provision.

272.          It would be inappropriate for these powers to be exercised otherwise than by the Tribunal as constituted for a matter, or by the person specified by the relevant provision. This approach reflects the policy of existing subsection 21(1A) but simplifies and clarifies the drafting.

273.          Scope: New subsection 19B(4) would provide the new section 19B does not apply to proceedings in the Security Division. Subdivision B provides rules for constitution of the Tribunal in the Security Division (see new sections 19E and 19F below).

New section 19C—Constitution for review of taxing of costs

274.          New section 19C would provide rules for the constitution of the Tribunal for a review of the taxing of costs in another proceeding. Both new and existing subsections 69A(2) allow parties to apply for a review of costs taxed by an officer of the Tribunal. New section 19C would replace the rules currently provided by existing sections 23E and 23F for the constitution of the Tribunal to hear these reviews in simplified form.

275.          New subsection 19C(1) would provide that for a review of taxing of costs, the Tribunal must be constituted by the member who dealt with the other proceeding, or if multiple members heard the proceeding, the member who presided in the proceeding. This reflects the policy of existing section 23E.

276.          New subsection 19C(2) would allow the President to direct another member to constitute the Tribunal for this purpose if the member who would constitute the Tribunal under subsection (1) cannot deal with the proceeding, because the member:

·         has ceased to be a member

·         is unavailable, or

·         has been directed by the President not to take part in the review.

277.          This reflects the policy of existing section 23F.

278.          New subsection 19C(3) would provide that the President must not give directions that would result in none of the members who constituted the Tribunal for purposes of the other proceeding constituting the Tribunal for the purposes of the review, unless the President is satisfied that it is in the best interests of justice to do so. This reflects the policy of existing subsections 23F(5) and (6).

New section 19D—Reconstitution

279.          New section 19D would provide rules for the reconstitution of the Tribunal for a proceeding. The rules for reconstitution would be simplified by removing the explicit ability for parties to request reconstitution of the Tribunal under existing section 21A of the AAT Act. In practice, the President would carefully consider any such requests, and this does not need to be provided in legislation.

280.          Reconstitution before the hearing commences: new subsection 19D(1) would provide that, at any time before the hearing of a proceeding commences, the President may revoke a direction under subsection 19A(1) constituting the matter for the proceeding, and issue another direction. This reflects the policy of existing subsection 20B(2).

281.          Reconstitution after the hearing commences: new subsections 19D(2)–(4) would provide rules for reconstitution of the Tribunal after a hearing commences. The President would be able to reconstitute the Tribunal after a hearing has commenced where either:

·         a member constituting the Tribunal for the proceeding stops being a member, is unavailable, or is directed by the President not to take part in the proceeding, or

·         the President considers that reconstituting the Tribunal is in the interests of achieving the expeditious and efficient conduct of the proceeding.

282.          This reflects the policy of existing section 23 of the AAT Act, sections 355 and 422 of the Migration Act and clause 12 of Schedule 3 to the SSA Act (reconstitution where a member is unavailable) and existing section 23A of the AAT Act, sections 355A and 422A of the Migration Act, and clause 12A of Schedule 3 to the SSA Act (reconstitution to achieve expeditious and efficient conduct of proceeding.

283.          However, new subsection 19D(3) would provide that new subsection 19D(2) would not apply to proceedings in the Security Division. This reflects the policy of existing subsections 23(1) and 23A(1). Subdivision B provides rules for reconstitution of the Tribunal in the Security Division (see new sections 19E and 19F below).

284.          New subsection 19D(4) would provide that the reconstituted Tribunal must continue the proceeding, and in doing so, may have regard to any record of the proceeding before the Tribunal as previously constituted.

285.          The requirement of existing subsection 23(10) that the President consult the parties before reconstituting the Tribunal has not been reproduced. This is not a requirement for either the MRT‑RRT or the SSAT and need not be retained.

286.          President’s directions: new subsection 19D(5) would provide that the President must not direct a member not to take part in a proceeding under new subparagraph 19D(2)(a)(iii) unless the President is satisfied that it is in the interests of justice to do so, and has consulted the member concerned. This reflects the requirements of existing paragraph 23(9)(b) of the AAT Act, and existing paragraph 12(1AA)(b) of Schedule 3 to the SSA Act, but is not a requirement in the MRT‑RRT.

287.          New subsection 19D(6) would provide that the President must not revoke a direction under new subsection 19D(2) unless the President is satisfied that it is in the interests of justice to do so, and has consulted each member of the Tribunal who would cease to be a member of the Tribunal as reconstituted. The requirement to consult with members in these circumstances reflects the requirements of existing paragraph 23(11)(b), but is not currently a requirement for the MRT‑RRT or the SSAT.

288.          New subsection 19D(7) would provide that in giving directions for reconstitution, the President must have regard to the Tribunal’s objectives in new section 2A, that is, to provide a mechanism of review that:

·         is accessible

·         is fair, just, economical, informal and quick

·         is proportionate to the importance and complexity of the matter, and

·         promotes public trust and confidence in the decision making of the Tribunal.

289.          This reflects the policy of existing subsection 23(12).

New section 19E—Constitution of Security Division

290.          New section 19E would provide rules for the constitution of the Security Division (other than for proceedings in relation to records of ASIO, which are dealt with in new section 19F) to be applied by the President in exercising the power to constitute the Tribunal under new section 19A. These rules would apply instead of the general rules regarding constitution and reconstitution of the Tribunal, which would not apply in the Security Division under new subsections 19B(4) and 19D(3).

291.          The new section reflects the policy of existing section 21AA of the AAT Act. However, subsection 21AA(5), which provides specific qualifications for review of particular matters in the Security Appeals Division (as it is currently known), has not been reproduced. The President of the Tribunal is expected give appropriate weight to the expertise required to deal with an application in determining the constitution of the Tribunal to hear matters in the Division.

292.          Scope: new subsection 19E(1) would provide that the rules in new section 21AA apply to any proceeding in the Security Division other than a proceeding to which new section 19F applies, subject to subsection 65(2) of the Australian Security Intelligence Organisation Act 1979, which provides that for certain inquiries into security assessments, the constitution and procedure of the Tribunal shall be as determined by the President. New subsection 19E(1) reproduces the policy of existing subsection 21AA(1).

293.          Rules regarding constitution: new subsections 19E(2) and (3) would provide rules regarding constitution of the Tribunal to deal with proceedings in the Security Division. New subsection 19E(2) would provide that the Division is to be constituted by a presidential member (either the President or a Deputy President) and two other members. However, new subsection 19E(3) would provide that the presidential member must not participate in the proceeding if the presidential member is, or has been, the Director-General of Security or an ASIO employee or affiliate. The provisions reproduces the policy of existing subsections 21AA(2) and (3).

294.          Presiding member: new subsection 19E(4) would provide that the presidential member is to preside at a hearing of the proceeding. This reproduces the policy of existing subsection 21AA(4).

295.          Reconstitution: new subsections 19E(5) and (6) would provide rules regarding the reconstitution of the Tribunal in the Security Division. New subsection 19E(5) would provide that if, after a hearing commences and before the Tribunal determines the proceeding, a member becomes unavailable the President may revoke a direction constituting the Tribunal for the proceeding and make a new one. New subsection 19E(6) provides that, in these circumstances, the reconstituted Tribunal must continue the proceeding, and in doing so, may have regard to any record of the proceeding before the Tribunal was reconstituted. These provisions reproduce the policy of existing subsection 21AA(6).

New section 19F—Constitution of Security Division for proceedings to review certain Archives decisions

296.          New section 19F would provide rules for the constitution of the Security Division in relation to proceedings relating to records of ASIO to be applied by the President in exercising the power to constitute the Tribunal under new section 19A. These rules would apply instead of the general rules regarding constitution and reconstitution of the Tribunal, which would not apply in the Security Division under new subsections 19B(4) and 19D(3).

297.          The new section reflects the policy of existing section 21AB of the AAT Act. However, provisions relating to reconstitution of the Tribunal at the request of a party (existing subsections 21AB(4)–(8)) have not been reproduced. This is consistent with the approach that would be adopted in relation to proceedings in Divisions other than the Security Division.

298.          Rules regarding constitution: new subsections 19F(2) and (3) would provide rules regarding constitution of the Tribunal to deal with proceedings in the Security Division relating to records of ASIO. New subsection 19F(2) would provide that the Division is to be constituted by three presidential members, or a presidential member alone. However, new subsection 19F(3) would provide that a presidential member must not participate in the proceeding if the presidential member is, or has been, the Director-General of Security or an ASIO employee or affiliate. The provisions reproduces the policy of existing subsections 21AB(2) and (3).

299.          Presiding member: new subsection 19F(4) would provide rules for determining the presiding member:

·         if the President is one of the members constituting the Tribunal, the President will preside

·         if the President is not one of the members constituting the Tribunal, but one or more members who are Judges is, the (most senior) Judge will preside

·         if neither the President nor a member who is a Judge constitutes the Tribunal, the Deputy President whom the President directs will preside.

New subsection 19F(4) reproduces the policy of existing subsection 21AB(9).

300.          Reconstitution: new subsections 19F(5) and (6) would provide rules regarding the reconstitution of the Tribunal in the Security Division. New subsection 19F(5) would provide that if, after a hearing commences and before the Tribunal determines the proceeding, a member becomes unavailable, the President may revoke a direction constituting the Tribunal for the proceeding and make a new one. New subsection 19F(6) provides that, in these circumstances, the reconstituted Tribunal must continue the proceeding, and in doing so, may have regard to any record of the proceeding before the Tribunal was reconstituted. These provisions reproduce the policy of existing subsections 21AB(10) and (11).

Items 28–38: amendments to Part IIIA of the AAT Act (Management of the Tribunal)

301.          Items 28–38 would amend Part IIIA of the AAT Act, which provides for the management of the Tribunal.

302.          The amendments made by these Items make a number of changes to the approach to the management of the Tribunal:

·         greater clarity would be provided as to the distinction between the President’s responsibility for the administrative affairs of the Tribunal and the Registrar’s role as public service Agency Head and accountable authority for financial matters (see particularly Item 27)

·         the specific references to Conference, District and Deputy Registrars in the Act would be replaced by a general concept of ‘officers of the Tribunal’ (see particularly Item 36), and

·         provisions relating to the Registrar would be made consistent with the approach applied to other statutory officers of the Tribunal in relation to appointment and acting appointments, terms and conditions, leave of absence, and outside employment of the Registrar (see Items 29, 31, 32, and 34).

Item 28—Section 24A

303.          Item 28 would repeal existing section 24A of the AAT Act and substitute a new section 24A.

304.          Existing section 24A provides that the President is responsible for managing the administrative affairs of the Tribunal, and empowers the President to do all things necessary or convenient to be done, including entering into contracts, and acquiring or disposing of personal property.

305.          New section 24A would maintain the President’s responsibility for the administrative affairs of the Tribunal (new subsection 24A(1)), but clarify the interaction between the President’s administrative powers and the powers of the Registrar as Agency Head for staffing matters and accountable authority for financial matters. In particular, as the Registrar is the primary obligation-holder in relation to these matters, it is appropriate that the Registrar is given primary responsibility in these fields to ensure that the Registrar can discharge his or her responsibilities under those Acts.

306.          To give effect to this policy:

·         new subsection 24A(2) would provide that the President is not responsible under subsection 24A(1) for matters relating to the Tribunal under the Public Governance, Performance and Accountability Act 2013 (PGPA Act), or the Public Service Act 1999, and

·         new subsection 24A(3) would provide that the Registrar is not subject to direction by the President in relation to the Registrar’s functions and powers under those Acts (reproducing the policy of existing subsection 24D(4)).

307.          This approach is consistent with the existing policy position, but is intended to more clearly delineate responsibilities. The Registrar and the APS staff of the Tribunal would have a crucial role in supporting the President and the members of the Tribunal to pursue their responsibilities under the Act. Accordingly, it is expected that the Registrar would exercise his or her functions in close consultation with the President.

Item 29—Paragraph 24BA(a)

308.          Item 29 would repeal paragraph 24BA(a) of the AAT Act and substitute a new paragraph 24BA(a).

309.          Existing paragraph 24BA(a) provides for a listed entity for the purposes of the PGPA Act consisting of:

·         the Registrar

·         the District Registrars, Conference Registrars, Deputy Registrars, and

·         the staff of the Tribunal.

310.          New paragraph 24BA(a) include the Registrar and the staff of the Tribunal, but would not include the reference to the District, Conference, and Deputy Registrars. As all registrars are staff of the Tribunal, this reference is redundant.

311.          The specific references to District, Conference and Deputy Registrars in the AAT Act would also be replaced by the concept of ‘officers of the Tribunal’ by new section 24PA, which would be inserted by Item 36. It is not appropriate to refer to officers of the Tribunal in this provision, as the officers would potentially include other APS employees and Registrars of the Supreme Court of Norfolk Island, who are not part of the Tribunal but may exercise certain functions under the AAT Act or another enactment.

Item 30—Section 24C

312.          Item 30 would amend section 24C of the AAT Act to remove the words ‘on the nomination of the President’.

313.          Existing section 24C provides that the Registrar of the Tribunal is to be appointed by the Governor‑General on the nomination of the President.

314.          This nomination requirement does not apply to any other statutory officers of the Tribunal. Item 30 accordingly removes the requirement that the Registrar be appointed on the nomination of the President. The standard processes for appointment of statutory officers by the Governor‑General would apply to this position.

Item 31—Subsections 24D(4) and 24E(4)

315.          Item 31 would repeal existing subsections 24D(4) and 24E(4) of the AAT Act.

316.          Existing subsection 24D(4) provides that the Registrar is not subject to direction by the President in relation to the Registrar’s performance of functions, or exercise of powers under the Public Service Act and PGPA Act.

317.          Item 31 would repeal subsection 24D(4) as this policy would be reflected in the new section 24A inserted by Item 28.

318.          Existing subsection 24E(4) provides that the remuneration and allowances payable to the Registrar are to be paid out of money appropriated by the Parliament for the purposes of the Tribunal.

319.          Item 31 would repeal subsection 24E(4) as this provision is unnecessary.

Item 32—Subsection 24F(4)

320.          Item 32 would amend existing subsection 24F(4) of the AAT Act by omitting the words ‘President’ and substituting ‘Minister’.

321.          Existing subsection 24F(4) provides that the Registrar holds office on such terms and conditions (if any) in respect of matters not provided for by the AAT Act as are determined by the President.

322.          The amendment in Item 32 would make the Minister responsible for managing the terms and conditions of the Registrar, consistent with other statutory appointments under the Act under section 8(7) as amended by Item 21.

Item 33—Subsection 24G(2)

323.          Item 33 would amend existing subsection 24G(2) of the AAT Act to omit the words ‘President, with the approval of the Minister’ and substitute ‘Minister’.

324.          Existing subsection 24G(2) provides that the President may grant the Registrar leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the President, with the approval of the Minister, determines.

325.          The amendment in Item 33 would provide that the Minister should approve the terms and conditions relating to leave of absence. The President would remain the approver for the Registrar’s leave of absence. This is consistent with the approach to other statutory appointments under the Act under new section 12 inserted by Item 26.

Item 34—Section 24K

326.          Item 34 would repeal existing section 24K of the AAT Act and substitute a new provision.

327.          Existing section 24K provides the grounds upon which the Registrar of the Tribunal may be terminated by the Governor‑General. These include misbehaviour, physical or mental incapacity, and grounds related to bankruptcy, absence without leave, unapproved paid outside employment, and failure to disclose conflicts of interest. The section also provides complex rules relating to the superannuation arrangements of the Registrar and retirement.

328.          Item 34 would replace this provision with a new section 24K with drafting consistent with the current standard model for termination provisions.

329.          New subsection 24K(1) would provide that the Governor-General may terminate the appointment of the Registrar for misbehaviour (new paragraph 24K(1)(a)), or if the Registrar is unable to perform the duties of his or her office because of physical or mental incapacity (new paragraph 24K(1)(b)). New paragraph 24K(1)(b) slightly modifies the policy of existing subsection 24K(1) by making it clearer that termination for incapacity can only occur where there incapacity renders the Registrar unable to perform the duties of his or her office.

330.          New subsection 24K(2) would provide that the Governor-General may terminate the appointment of the Registrar on bankruptcy-related grounds, absence without leave, for unapproved outside paid employment, and failure without reasonable excuse to disclose a conflict of interest. This provision reproduces the policy of existing subsection 24K(2) with simplified drafting.

331.          New subsection 24K(3) would provide that the appointment of the Registrar may not be terminated other than in accordance with new section 24K. This is a new provision, and is intended to remove any doubt as to the options available for terminating the Registrar.

332.          Existing subsections 24K(4)–(6) are not reproduced. It is not necessary to specify arrangements in relation to superannuation in the AAT Act, and doing so is not consistent with the standard model for termination provisions in Commonwealth legislation.

Item 35—Section 24M

333.          Item 35 would amend existing section 24M of the AAT Act by omitting the word ‘President’ and substituting the word ‘Minister’.

334.          Existing section 24M provides that the President may appoint an acting Registrar of the Tribunal during a vacancy in the Registrar’s office, or during any period when the Registrar is absent from duty or outside Australia.

335.          The amendment made by Item 35 would make the Minister responsible for appointing an acting Registrar rather than the President, consistent with the approach for appointing an acting President under new subsection 10(1) inserted by Item 22.

Item 36—Sections 24N and 24P

336.          Item 36 would repeal existing sections 24N and 24P of the AAT Act and substitute new sections 24N, 24P and 24PA.

337.          Existing sections 24N of AAT Act provides for the engagement and functions of the staff of the Tribunal and Conference, District and Deputy Registrars.

338.          Existing section 24P establishes the AAT as a Statutory Agency for the purposes of the Public Service Act.

339.          These provisions would be replaced by Item 36 with simplified provisions providing for the staff of the Tribunal, officers of the Tribunal, and the functions of the Registrar and staff.

New section 24N—Staff

340.          Item 36 would insert a new section 24N providing for the staff of the Tribunal.

341.          New subsection 24N(1) would provide that the staff of the Tribunal must be engaged under the Public Service Act. This reproduces the policy of existing subsection 24N(3) of the AAT Act, and section 472 of the Migration Act.

342.          New subsection 24N(2) would provide that for the purposes of the Public Service Act, the Registrar and the staff of the Tribunal form a Statutory Agency, and the Registrar is the Head of that agency. This reproduces the policy of existing section 24P of the AAT Act. However, the other Tribunals differ in their management arrangements:

·         the SSAT is not a separate APS agency; its staff are provided by the Department of Social Services, and the Registrar of the SSAT holds Public Service Act powers by delegation from the Secretary of that Department, and

·         the MRT‑RRT has a fused management whereby the Principal Member is, in addition to the chief statutory officer, also the public service Agency Head, accountable authority for the purposes of the PGPA Act.

New section 24P—Functions of Registrar and staff

343.          Item 36 would insert a new section 24P providing for the functions of the Registrar and staff. It would provide that the Registrar and staff of the Tribunal have the functions conferred on them by:

·         the AAT Act or any other enactment, and

·         by the President.

344.          This would extend existing subsection 24N(5) by recognising that the Registrar and staff may have functions conferred on them by other enactments. A number of Commonwealth Acts confer specific functions on officers of the Tribunal.

New section 24PA—Officers of the Tribunal

345.          Item 36 would insert a new section 24PA providing for officers of the Tribunal.

346.          Existing section 24N provides that there will be District, Conference and Deputy Registrars of the Tribunal (existing subsection 24N(1)). Conference Registrars are appointed by the President (existing subsection 24N(1A)), while other registrars are appointed by the Registrar (existing subsection 24N(2)). Registrars may be appointed as any combination of District, Conference or Deputy Registrar (subsection 24N(1B), and must be staff of the Tribunal (subsection 24N(3)). The Registrars are given the powers, duties, and functions given by the Act or the President.

347.          References to specific types of Registrar would no longer be included in the Act. While positions of this kind would continue to exist in the amalgamated Tribunal, the Act would be simplified by retaining only the concept of ‘officer of the Tribunal’. Under new subsection 24PA the Registrar would be able to appoint a person to be an officer of the Tribunal if the person is a member of the staff of the Tribunal, an APS employee made available to the Tribunal, or an officer of the Supreme Court of Norfolk Island, and the Registrar is satisfied that the person has appropriate qualifications and experience. Officers of the Tribunal would then be able to carry out the functions and exercise the powers identified throughout the AAT Act and other enactments that are conferred on officers of the Tribunal.

348.          This approach would provide significantly greater flexibility in the allocation of functions to Registrars, and would allow a structure reflecting the use of officers across the AAT, MRT‑RRT and SSAT. The principal policy differences between new section 24PA and the existing provisions is that the Registrar would be the appointer for all officers, and appointment as an officer would be opened to officers of the Supreme Court of Norfolk Island. The latter amendment is intended to improve the efficiency of the amalgamated Tribunal’s operations on Norfolk Island. Under new section 59B (which would be inserted by Item 132) the President would continue to have the power to authorise officers of the Tribunal for the purposes of particular powers under the AAT Act or other enactments.

Item 37—Subsection 24R(1)

349.          Item 37 would amend existing subsection 24R(1) of the AAT Act by inserting the words ‘including the operation of the Divisions’ after ‘administrative affairs’.

350.          Existing section 24R provides for the Tribunal’s annual reports.

351.          The addition of the proposed words would require the Tribunal to report on the operations of its Divisions. This is appropriate given the size, complexity and importance of the new jurisdictions being brought into the amalgamated Tribunal in the Social Services and Child Support Division and the Migration and Refugee Division.

Item 38—Section 24V

352.          Item 38 would repeal existing section 24V of the AAT Act.

353.          Existing section 24V provides the President with a delegation power.

354.          New section 10A which would be inserted by Item 25 would provide the President with a broad power of delegation. Existing section 24V is no longer necessary and Item 38 would therefore would repeal it.

Item 39—Before Division 1 of Part IV

355.          Item 39 would insert new Division 1A, comprising section 24Z, into Part IV of the AAT Act. Part IV provides for the procedure to be followed by the Tribunal on review of decisions. New subsection 24Z(1) would exclude the application of Part IV in relation to proceedings in the Migration and Refugee Division, subject to two exceptions in new subsection 24Z(2).

356.          The procedures that apply to review of decisions in the Migration and Refugee Division would continue to be set out in the Migration Act: specifically, in Part 5 in relation to decisions reviewed by the MRT and in Part 7 in relation to decisions reviewed by the RRT. While there are elements in common between the procedure set out in Parts 5 and 7 of the Migration Act and the procedure set out Part IV of the AAT Act, there are certain different or additional rules that reflect the particular characteristics of the migration and refugee jurisdiction. Schedule 2 contains proposed amendments to the Migration Act, including in relation to procedures for the conduct of reviews.

357.          New subsection 24Z(2) would provide that, notwithstanding subsection 24Z(1), sections 25 and 42 of the AAT Act apply in relation to proceedings in the Migration and Refugee Division:

·         Section 25 is the core provision that empowers the Tribunal to review a decision where jurisdiction is conferred on it under another enactment. The Migration Act would confer jurisdiction on the Tribunal to review decisions under Parts 5 and 7 of that Act.

·         Section 42 provides for the resolution of disagreements between Tribunal members where more than one member participates in a review. It is appropriate to have a consistent rule across the Tribunal for how any such disagreements between members are to be resolved.

Item 40—Subsections 25(4) and (6)

358.          Item 40 would repeal existing subsections 25(4) and 25(6) of the AAT Act, consistent with other changes to simplify the Act.

359.          Existing subsection 25(4) provides that the Tribunal has power to review any decision in respect of which an application is made under another enactment. This statement is essentially declaratory, as subsection 25(1) provides that other enactments may provide for applications to be made to the Tribunal for review of decisions.

360.          Existing subsection 25(6) provides that other enactments conferring jurisdiction on the Tribunal may contain provisions that add to, modify, or exclude the operation of sections 27, 29, 32, 33 and 35 or subsection 41(1) or 43(1) or (2) in relation to applications under that enactment. Several other enactments include provisions to this end and also add to, modify or exclude other provisions of the AAT Act. It is a general principle of statutory interpretation that a later Act of Parliament overrides an earlier Act to the extent of any inconsistency. Accordingly, subsection 25(6) can be misleading and should be repealed. However, its repeal does not diminish the general position that any modifications to the AAT’s procedures should be kept to a minimum and only made where special circumstances warrant it.

361.          The repeal of these provisions would not change the existing scope of the Tribunal’s jurisdiction or powers.

Item 41—Paragraph 25(8)(c)

362.          Item 41 would repeal existing paragraph 25(8)(c) of the AAT Act and substitute new paragraph 25(8)(c).

363.          The effect of existing paragraph 25(8)(c) is that a Norfolk Island enactment cannot alter the operation of subsection 21(1) of the Act. Existing subsection 21(1) provides that the Tribunal is not to be constituted by more than three members. New paragraph 25(8)(c) would update the reference to subsection 21(1) so that it is a reference to new paragraph 19B(1)(a), as a consequence of changes to section 21 at Item 27. This consequential amendment does not affect existing policy.

Item 42—After subsection 26(1)

364.          Item 42 would insert new subsection 26(1A) of the AAT Act to exclude the operation of paragraph 26(1)(b) in relation to child support first reviews.

365.          Existing paragraph 26(1)(b) empowers the Tribunal to alter the decision under review with the consent of the parties. No such power currently exists in relation to child support first reviews. It is inappropriate to extend it to child support first reviews, because it would introduce scope for delay and result in disagreement between the parties as to whether and how the power should be used.

Item 43—Subsection 28(1AAA)

366.          Item 43 would repeal subsection 28(1AAA) of the AAT Act and substitute a new subsection 28(1AAA).

367.          Existing subsection 28(1) provides that any person who may apply to the Tribunal for the review of a decision is entitled to request, and receive, a statement of reasons for the decision from the person who made the decision. Existing subsection 28(1AAA) provides that subsection 28(1) does not apply in relation to decisions reviewable in the Security Appeals Division (as it is currently known). New paragraph (1AAA)(a) would continue this position. This is existing policy and reflects the sensitive nature of information that may form the basis of such decisions.

368.          New paragraph (1AAA)(b) would provide that subsection 28(1) does not apply in relation to a decision that is a decision on AAT first review within the meaning of the FAA Act, CSRC Act, SA Act, SSA Act and PPL Act. This exclusion is appropriate because those Acts provide parties with an entitlement to obtain a written statement of reasons in respect of all decisions made by the Tribunal: see new section 178 of the SSA Act, inserted by Item 64 of Schedule 3, new section 95P of the CSRC Act, inserted by Item 64 of Schedule 4, new section 126 of the FAA Act, inserted by Item 22 of Schedule 5, new section 235 of the PPL Act, inserted by Item 20 of Schedule 6, and new section 318 of the SA Act, inserted by Item 11 of Schedule 7.

Item 44—Subsection 28(1AC) and Item 45—subsection 28(5)

369.          Item 44 would repeal subsection 28(1AC) of the AAT Act and substitute a new subsection 28(1AC) and Item 45 would repeal subsection 28(5) and substitute new subsections 28(5)–(6).

370.          Existing subsection 28(1AC) provides that if a decision-maker refuses to provide a statement of reasons in respect of a reviewable decision, a person may apply to the Tribunal for a decision as to whether a statement must be provided. It provides that an application may be made as prescribed by Regulations. New subsection 28(1AC) would remove the requirement for application processes to prescribed but otherwise preserve existing policy.

371.          Existing subsection 28(5) permits the Tribunal, upon application, to declare that the statement of reasons provided by a decision-maker is inadequate and that an additional statement must be provided. New subsections 28(5)–(6) are redrafted in a simplified way. The only change to existing policy would be the removal of the requirement for application processes to be prescribed in Regulations.

372.          The removal of the requirement to prescribe in Regulations how certain types of applications may or must be made, including prescribed forms and their use, is proposed consistently throughout the Bill. This change would not prevent such matters being prescribed in Regulations but would also permit the President in appropriate circumstances to specify application processes that are not otherwise specified in the Act in practice directions made under new section 18B and approve forms administratively. This would provide more flexibility to the Tribunal to meet the needs of its various jurisdictions.

Item 46—Paragraphs 29(1)(a), (b) and (c)

373.          Item 46 would repeal paragraphs 29(1)(a), (b) and (c) of the AAT Act and substitute new paragraphs 29(1)(a), (b) and (c). The existing paragraphs deal with requirements for making applications to the Tribunal. The new paragraphs would make three changes to existing policy, as follows.

374.          Existing paragraph 29(1)(a) requires that applications must be made in writing. New subparagraph 29(1)(a)(ii) would provide an exception so that if a decision is reviewable in the Social Services and Child Support Division, and is not a child support first review, a person may make an oral application to the Tribunal. The AAT Regulations would determine which decisions are reviewable in the Social Services and Child Support Division (see Item 27). The ability to make oral applications is an important feature of the SSAT that would be preserved. The requirement for applicants in child support first reviews to make written applications is appropriate in child support reviews because more than one citizen party is involved and also because (with the exception of care percentage decisions in which a party could seek second review) they may only be appealed directly to a court. New section 224 of the PPL Act (inserted by Item 20 of Schedule 6) would also require applications to be made in writing notwithstanding subparagraph 29(1)(a)(ii).

375.          Existing paragraph 29(1)(b) provides that a person may use a prescribed form when making an application. New paragraph 29(1)(b) would not include this requirement. The removal of the requirement for the application forms to be a prescribed form would permit the President to approve forms administratively, thereby providing more flexibility to the Tribunal to create and amend forms from time to time to meet the needs of its various jurisdictions. This change is proposed consistently throughout the Bill.

376.          New paragraph 29(1)(b) would instead require applications to the Tribunal to be accompanied by any prescribed fee. This would promote early payment of fees and assist the Tribunal in managing applications expeditiously. New paragraph 29(1)(b) would not have any effect on existing arrangements whereby certain applications do not attract any fee, or prevent applicants seeking a reduction of fees in appropriate circumstances. The existing AAT Regulations also deal with the effect of not paying a prescribed fee that is payable. The application is taken to have been lodged but the Tribunal is not required to deal with it unless and until the fee is paid. If the fee is not paid within the time period prescribed in the AAT Regulations, existing section 69C would continue to empower the Tribunal to dismiss the application.

377.          New paragraph 29(1)(c) would preserve the policy of existing paragraph 29(1)(c) that, in most circumstances, an application must contain a statement of reasons for the application. The exception from this requirement has been extended to oral applications, to reflect the amendment to allow applications to be made orally for decisions reviewable in the Social Services and Child Support Division.

Item 47—Subsection 29(1B)

378.          Item 47 would repeal subsection 29(1B) of the AAT Act. Existing subsection 29(1B) provides that the Tribunal may request applicants to amend their statement of reasons for their application if it is insufficient. Item 51 would insert an equivalent provision as new section 29AB.

Item 48—Subsection 29(9)

379.          Item 48 would repeal subsection 29(9) of the AAT Act and substitute new subsection 29(9). Existing subsection 29(9) provides that if a person has sought an extension of time in which to apply to the Tribunal, the Tribunal may require the applicant to give notice of the application to other persons whose interests the Tribunal considers may be affected. This is a discretionary power.

380.          New subsection 29(9) would continue to provide that the Tribunal has discretion as to whether any persons should be notified of applications for extension of time that may affect their interests. However, the power to require such notification would be extended to officers of the Tribunal as well as the Tribunal. Further, the Tribunal or an officer of the Tribunal could give the notification, or require the applicant to do so. These changes provide more flexibility to the Tribunal to manage applications for extension of time.

Item 49—Subsection 29(10)

381.          Item 49 would amend subsection 29(10) of the AAT Act to remove the requirement for the way in which a person notifies the Tribunal that they oppose an application for extension of time to be prescribed in Regulations. Similar changes to prescription requirements are proposed consistently throughout the Bill. The amendment to subsection 29(10) would not prevent such matters being prescribed in Regulations but would also would permit the President to specify them in practice directions made under section 18B, providing more flexibility to the Tribunal. There would be no other change to existing policy in subsection 29(10).

Item 50—Subsection 29(11)

382.          Item 50 would repeal subsection 29(11) of the AAT Act. Existing subsection 29(11) requires a Registrar, District Registrar or Deputy Registrar to give notice of an application for review of a decision to the person who made the decision. Item 50 would insert an equivalent provision as new section 29AC.

Item 51—After section 29

383.          Item 51 would insert new sections 29AA, 29AB and 29AC after section 29 of the AAT Act.

New section 29AA—Oral applications

384.          New section 29AA is consequential to new subparagraph 29(1)(a)(ii), which would permit oral applications in the Social Services and Child Support Division, except in relation to applications for child support first reviews and PPL employer reviews (Item 46). New subsection 29AA(1) would require the Tribunal to make a written record of an oral application. New subsection 29AA(2) would ensure that Part IV has effect in relation to oral applications in the same way as written applications.

New section 29AB—Insufficient statement of reasons for application

385.          New section 29AB would replace subsection 29(1B) of the AAT Act, which would be repealed by Item 47. Existing section 29(1B) provides that the Tribunal may request applicants to amend their statement of reasons for their application if it is insufficient. No change to existing policy is intended. The drafting of new subsection 29AB is simplified and its placement at the end of section 29 is more logical.

New section 29AC—Notice of application

386.          New section 29AC would replace subsection 29(11) of the AAT Act, which would be repealed by Item 50. Existing subsection 29(11) requires a Registrar, District Registrar or Deputy Registrar to give notice of an application for review of a decision to the person who made the decision. New paragraph 29AC(1)(b) would preserve this requirement, while simplifying the provision by placing the obligation solely on the Registrar (who may delegate the power under new subsection 10A(3) at Item 25). New paragraph 29AC(1)(a) would further require the Registrar to give written notice that the application has been received to the applicant. This would reflect existing practice where the Tribunal provides applicants with confirmation of the receipt of their application.

387.          New subsection 29AC(2) would deal with notification of applications to third parties whose interests may be affected by the decision under review. There is no current legislative requirement in the AAT Act to notify third parties of applications for review. However, in practice the Tribunal does so in appropriate cases. Further, section 160 of the SSA Act, section 235 of the PPL Act, section 102 of the CSRC Act and section 122 of the FAA Act all require the SSAT Principal Member to take all reasonable steps to give written notice of the application to persons whose interests are affect but are not a party, and their right to be added as a party. Accordingly, this requirement has been moved into the AAT Act to preserve these provisions and to codify existing practice.

388.          The power in new subsection 29AC(2) would be vested in the Tribunal or an officer of the Tribunal. It would be discretionary. This reflects the fact that in some cases there may be a large class of persons whose interests may be affected by a decision, such that individual notification is neither necessary nor practical. Pursuant to new paragraphs 29AC(2)(a) and (b) respectively, the Tribunal or an officer of the Tribunal may give notification of the application, or the applicant may be required to do so.

Item 52—Section 29B (heading)

389.          Item 52 would repeal the heading to section 29B of the AAT Act and substitute a new heading which would clarify that section 29B relates to review of security assessments only. No change to the scope of the provision is intended.

Item 53—Subsections 30(1AA), 30A(1AA) and 31(2)

390.          Item 53 would make consequential amendments to subsections 30(1AA), 30A(1AA) and 31(2) of the AAT Act to update the references to the ‘Security Appeals Division’ to the ‘Security Division’, to reflect the names of the Division in the amalgamated Tribunal in section 17A at Item 27. No other policy change is intended.

Item 54—Section 32

391.          Item 54 would repeal section 32 of the AAT Act and substitute new section 32. Existing section 32 provides that parties may appear in person at a hearing or be represented by some other person. New paragraph 32(1)(a) would preserve this position in relation to Divisions of the Tribunal other than the Social Services and Child Support Division. New paragraph 32(1)(a) would apply in relation to second review of decisions, which would be dealt with in the Tribunal’s General Division. The Migration Act contains rules concerning representation in proceedings in the migration and refugee proceedings. These provisions would be maintained in the Migration Act. Rules regarding representation in section 32 would not apply in the Migration and Refugee Division under new section 24Z, inserted by Item 39.

392.          Representation in the Social Services and Child Support Division would be dealt with in new paragraph 32(1)(b) and subsection 32(2), which would preserve the existing rules in the SSAT: see subsections 161(2) and (3) of the SSA Act, 103C(2) and (2A) of the CSRC Act, 123(3) and (3A) of the FAA Act, and 237(2) and (2A) PPL Act, and sections 160A of the SSA Act, 236 of the PPL Act, 122A of the FAA Act, and 103B of the CSRC Act.

393.          New paragraph 32(1)(b) would provide that an agency party may be represented at a hearing in a proceeding in the Social Services and Child Support Division. This is necessary as an agency party cannot appear other than by way of representative. New section 39AA at Item 90 would provide the manner in which an agency party may participate, consistently with existing rules in the SSAT.

394.          New subsection 32(2) would provide that a party (other than an agency party) may be represented at a hearing in a proceeding in the Social Services and Child Support Division with the permission of the Tribunal, or may appear in person.

395.          New subsection 32(3) would require the Tribunal, in considering whether to grant permission to a party in the Social Services and Child Support Division to be represented, to have regard to the objective of the Tribunal in section 2A, the wishes of the parties and the need to protect their privacy.

396.          The Tribunal’s power to determine whether parties (other than agency parties) in the Social Services and Child Support Division should be represented would promote the inquisitorial and informal nature of proceedings as well as the efficient conduct of reviews. It also reflects the sensitive and personal nature of the matters dealt with in social services and child support reviews.

397.          New subsection 32(4) would replace existing subsection 40(4), which provides that a person who is summoned to appear before the Tribunal may be legally represented with the permission of the Tribunal. New subsection 32(4) is deliberately broader in two respects. First, it would permit representation other than legal representation. In respect of new section 32 generally, representation is not limited to legal representation and could include, for example, support persons. Second, the phrase ‘persons required to appear’ would capture not only persons who are given a summons under new section 40A at Item 103, but also persons who are required to appear by virtue of similar powers in Acts conferring jurisdiction on the Tribunal.

Item 55—After subsection 33(1AA)

398.          Item 55 would insert a new subsection 33(1AB) after subsection 33(1AA) of the AAT Act, that would require parties and their representatives to use their best endeavours to assist the Tribunal to fulfil its statutory objective in section 2A (Item 1). This is intended to assist the Tribunal in managing the conduct of reviews, by encouraging parties and their representatives to conduct themselves in a manner that would facilitate the fair, just, economical, informal and quick resolution of the matter at hand (amongst the other aspects of the Tribunal’s objective). New subsection 33(1AA) would reinforce the nature of merits review in the Tribunal as an administrative process that must be accessible to users and produce the correct or preferable decision with the least possible attendant cost and delay.

Item 56—Paragraph 33(2)(a)

399.          Item 56 would amend paragraph 33(2)(a) of the AAT Act to replace the reference to ‘Conference Registrar’ with ‘officer’ of the Tribunal.

400.          Existing paragraph 33(2)(a) provides that where the hearing of a proceeding has not commenced, a Conference Registrar authorised by the President under subsection 33(4) may give directions in relation to the proceeding.

401.          Amended paragraph 33(2)(a) would remove the reference to authorised Conference Registrar and replace it with authorised officer of the Tribunal. This is consequential to Item 4, which removes the definition of ‘Conference Registrar’. Amended paragraph 33(2)(a) would provide that, where the hearing of a proceeding has not commenced, officers of the Tribunal may give directions as to the procedure to be followed in a particular proceeding, if authorised to do so by the President under new section 59B (inserted at Item 132).

Item 57—At the end of subsection 33(2A)

402.          Item 57 would insert new paragraphs (d) to (g) in subsection 33(2A) of the AAT Act.

403.          Existing subsection 33(2A) provides a non-exhaustive list of the types of directions the Tribunal may make in relation to the procedure to be followed at or in connection with the hearing of a particular proceeding. New paragraphs 33(2A)(d) to (g) would insert additional examples, such that the Tribunal could make directions:

·         limiting the number of witnesses who may be called

·         requiring witnesses to give evidence at the same time

·         limiting the time for giving evidence or making oral submissions, or

·         limiting the length of written submissions.

404.          The matters in paragraphs (d)–(g) would be within the Tribunal’s existing power. However, the amendment would put beyond doubt the Tribunal’s ability to control the manner in which parties call witnesses and provide evidence or submissions. This is consistent with the overarching principles in subsection 33(1) that the procedure of the Tribunal is within its discretion, and that proceedings shall be conducted with minimum formality and with as much expedition as a proper consideration of the matters before the Tribunal permits.

Item 58—Subsections 33(3) to (7)

405.          Item 58 would repeal subsections 33(3) to (7) of the AAT Act.

406.          Existing subsection 33(3) permits a member or authorised Conference Registrar to vary or revoke a direction as to the procedure to be followed at or in connection with the hearing of a proceeding. Subsections 33(4)–(7) permit the President to authorise Conference Registrars (either in specific or general terms) as persons who may give directions under paragraph 33(2)(a).

407.          These provisions are not necessary. In relation to subsection 33(3), the power to vary or revoke a direction is inherent in the power to make such directions. Subsections 33(4)–(7) are unnecessary in light of the amendment to paragraph 33(2)(a) at Item 56, which would remove the concept of authorised Conference Registrars from section 33 and replace it with the concept of authorised officers. As the new concept of authorised officers would appear in other provisions, including under new section 40B (inserted by Item 103), the President’s power to authorise certain officers of the Tribunal to be authorised officers would be moved to new section 59B (inserted at item 132).

Item 59—At the end of Division 2 of Part IV

408.          Item 59 would insert new section 33A at the end of Division 2 of Part IV of the AAT Act.

409.          New section 33A is intended to replace existing subsection 35A(1) and section 34G, which deal with participation by telephone in directions hearings and hearings, and alternative dispute resolution processes, respectively.

410.          The use of technology to facilitate participation in proceedings other than in person is common in the Tribunals and is increasing. New section 33A would provide a single rule that in a hearing, directions hearing or alternative dispute resolution process, the Tribunal or the person conducting the directions hearing or alternative dispute resolution process may allow or require a person to participate by telephone or other means of electronic communications equipment.

411.          The only change to existing policy under the AAT Act is that in addition to allowing persons to participate by means other than in person, new subsection 33A would empower the Tribunal to require a person to do so. This preserves the existing position in the SSAT under subsections 161(4) and (5) of the SSA Act, subsections 123(4) and (5) of the FAA Act, subsections 103C(3) and (4) of the CSRC Act and subsections 237(3) and (4) of the PPL Act. These provisions would be repealed. The power to proactively direct that a party may participate by telephone or other means of communication is regularly utilised by the SSAT and can be critical to the proper conduct of the review, for example in cases where there may be a history of violence between the parties.

Item 60—Section 34

412.          Item 60 would repeal section 34 of the AAT Act and substitute new section 34.

413.          Existing section 34 provides that Division 3, on alternative dispute resolution processes, does not apply to a proceeding in the Security Appeals Division (as it is currently known) to which existing section 39A applies. Paragraph (a) of new section 34 would maintain this exclusion.

414.          Paragraph (b) of new section 34 would provide that Division 3 does not apply to proceedings in the Social Services and Child Support Division. This would maintain the existing position in the SSAT where alternative dispute resolution is not used. The informal and non‑adversarial nature of social services and child support reviews, as well as the expedition with which reviews are conducted, means alternative dispute resolution is not suitable in these situations. Having a member deal directly with the review is an equally effective means of reaching the correct or preferable decision in any proceeding.

Item 61—Sections 34A to 34C

415.          Item 61 would repeal sections 34A–34C of the AAT Act and substitute new section 34A.

416.          Existing sections 34A and 34C deal with a range of matters, including the President’s power to make directions about referring a proceeding to an alternative dispute resolution process and who is to conduct that process, as well as about the procedures to be followed generally in relation to alternative dispute resolution processes.

417.          New section 34A would replicate key aspects of the policy in existing sections 34A and 34C in a single, simpler provision. In addition to there being no change to the powers of the President in relation to particular alternative dispute resolution processes, the obligation on parties to act in good faith in relation to the conduct of alternative dispute resolution processes would be preserved as would be the general requirement that only a member, officer of the Tribunal or a person engaged under section 34H may conduct an alternative dispute resolution process. The President’s powers to give directions about the procedure to be followed in alternative dispute resolution processes would be within the scope of new section 18B.

418.          Existing section 34B concerns the conduct of alternative dispute resolution in proceedings before the Small Taxation Claims Tribunal. Its repeal would be a consequential amendment in light of the repeal of Part IIIAA of the Act relating to the Small Taxation Claims Tribunal at Item 27. Alternative dispute resolution would continue to be available in small tax reviews under the rules generally applicable to other reviews to which Division 3 would apply.

Item 62—At the end of section 34D

419.          Item 62 would insert a new subsection (4) at the end of section 34D of the AAT Act.

420.          Existing section 34D provides that if the parties to a proceeding reach agreement during the course of an alternative dispute resolution process as to the decision the Tribunal should make in respect of the whole proceeding (existing subsection 34D(2)) or part of the proceeding (existing subsection 34D(3)), the Tribunal may act in accordance with the parties’ agreement, if it is satisfied that the terms of the agreement are within the powers of the Tribunal.

421.          New subsection 34D(4) would permit the Tribunal to vary or revoke a decision made under section 34D, with the consent of the parties and where the Tribunal is satisfied that it is within its powers and otherwise appropriate to do so. This would rectify the omission that at present the Tribunal does not have an explicit legislative power to vary or revoke such decisions in appropriate circumstances. New subsection 34D(4) would enable the Tribunal to implement outcomes satisfactory to the parties where it is within the scope of its powers to do so.

Item 63—Section 34G

422.          Item 63 would repeal section 34G of the AAT Act, which would be replaced by new section 33A inserted at Item 59.

Item 64 and 65—Section 34J and at the end of section 34J

423.          Item 64 would number existing section 34J of the AAT Act as subsection 34J(1), to reflect the insertion of a new subsection 34J(2) by Item 65.

424.          Existing section 34J and new subsection 34J(1) provide that the Tribunal may conduct a review on the papers (without holding a hearing) where it appears that the issues may be adequately determined in the absence of the parties, and the parties consent to the review being determined without a hearing.

425.          Item 65 would insert a new subsection 34J(2) to provide an exception to the rule in new subsection 34J(1). New subsection 34J(2) would provide that the consent of the parties is not required for the Tribunal to hold a review on the papers in second reviews.

426.          This change would permit the Tribunal to conduct second review in an expeditious and efficient manner, while preserving the requirement that a hearing must be held if the Tribunal considers that the issues cannot be adequately dealt with in the absence of the parties.

427.          The equivalent powers of the SSAT under sections 162 of the SSA Act, 103D of the CSRC Act, 125 of the FAA Act, and 238 of the PPL Act to conduct a hearing on the papers would be repealed.

Item 66—Section 35

428.          Item 66 would repeal section 35 of the AAT Act and substitute new section 35.

429.          Existing section 35 deals with the public nature of hearings in the Tribunal and the powers of the Tribunal to make orders that a hearing be heard in private and that certain information must not be published or otherwise disclosed. It does not apply in the Security Appeals Division (as it is currently known).

430.          In relation to hearings, existing subsection 35(1) sets out the general principle that hearings in the Tribunal shall be in public, except where the Tribunal determines otherwise under section 35. Existing paragraph 35(2)(a) permits the Tribunal to order that a hearing shall take place in private where it is satisfied that this is appropriate, including by reason of the confidential nature of the evidence. The Tribunal may give directions in relation to who may be present in a private hearing. New subsection 35(2) would preserve the existing position in relation to hearings under subsection 35(1) and paragraph 35(2)(a). Amendments in Table Item 4 of new section 147 of the SSA Act inserted by Item 42 of Schedule 3, new section 95K of the CSRC Act inserted by Item 64 of Schedule 4, and new section 232 of the PPL Act inserted by Item 20 of Schedule 6 would ensure that new subsections 35(1) and (2) would not apply in the Social Services and Child Support Division, and instead the legislative requirement for private hearings in social services and child support matters would be retained.

431.          Existing subsection 35(1A) provides that if a hearing is in public and a person participates by telephone or other means under existing section 35A, the Tribunal must take steps to ensure that the public nature of the hearing is preserved. This is unnecessary to state and is accordingly not reproduced.

432.          Existing paragraphs 35(2)(aa), (b) and (c) contain broad powers for the Tribunal to make non-disclosure or non-publication orders, to restrict or prohibit the publication or disclosure of various matters related to a proceeding, for example the names of witnesses and the content of evidence and documents lodged with the Tribunal. New subsections 35(3)–(4) would empower the amalgamated Tribunal to make such orders. No change is intended to the current broad scope of the Tribunal’s power. By modernising the drafting, new subsections 35(3) to (4) would set out more clearly and logically the types of matters that non-publication or non-disclosure directions could cover.

433.          New subsection 35(3) would empower the Tribunal to prohibit or restrict the publication or other disclosure of information that: (a) tended to reveal the identity of a party, witness or other person related to a party or witness in a proceeding, or (b) otherwise concerned any of those persons. New subsection 35(4) would empower the Tribunal to prohibit or restrict the publication or other disclosure of information, including to some or all of the parties, of information relating to a proceeding that comprises evidence (or associated information) or information given to the Tribunal. New subsections 35(3)–(4) are modelled on section 37AF of the Federal Court of Australia Act 1976.

434.          The powers in new subsections 35(3) to (4) would apply in the Social Services and Child Support Division, thereby allowing for the repeal of equivalent provisions in the SSA Act, CSRC Act, FAA Act, PPL Act, and SA Act. Certain provisions relating to non‑disclosure orders would be retained in the CSRC Act given the particular sensitivity of that jurisdiction: see new section 98 and 98C of the CSRC Act at Item 64 of Schedule 4.

435.          New subsection 35(5) would largely reproduce existing subsection 35(3), which governs the Tribunal’s exercise of its discretion to make a direction under section 35 that hearings be held in private or that certain matters are not to be published or otherwise disclosed. The starting point for the Tribunal is the principle that hearings should be held in public, evidence given before the Tribunal and the contents of documents received in evidence should be made available to the public and all parties and the contents of documents lodged with the Tribunal should be made available to all the parties. However, the Tribunal must pay due regard to any reasons given to it as to why a private hearing is appropriate, or why a non-publication or non-disclosure direction should be made.

436.          New subsection 35(5) would further clarify that the Tribunal is not required necessarily to seek the views of the parties before making a direction under section 35. While in many cases it is expected that the Tribunal would hear the parties on this point, it may be necessary for the Tribunal to make directions urgently in some cases. For example, it is common practice in the SSAT to make non-disclosure directions in child support matters at the very outset of a proceeding, in light of the sensitive information involved (for example, the detailed information about the current financial affairs of a party’s former spouse or partner).

437.          New subsection 35(6) would preserve the policy of existing subsection 35(1AA) that section 35 does not apply to a proceeding in the Security Division (as it would be known) to which section 39A applies.

Item 67—Section 35AA

438.          Item 67 would repeal existing section 35AA of the AAT Act and substitute new section 35AA. Existing section 35AA empowers the Tribunal to make non-publication or non-disclosure directions in a proceeding in the existing Security Appeals Division (as it is currently known). The drafting of new section 35AA would be aligned with new section 35 where relevant (inserted at Item 66). No change to the existing scope of section 35AA is intended.

Item 68—Section 35A

439.          Item 68 would repeal section 35A of the AAT Act, which deals with participation in reviews by means other than in person. Proposed new section 33A (inserted at Item 59) renders section 35A unnecessary.

Item 69—Subsections 36(1AA), 36A(1AA), 36B(1AA), 36C(1AA) and 36D(1AA)

440.          Item 69 would make consequential amendments to subsections 36(1AA), 36A(1AA), 36B(1AA), 36C(1AA) and 36D(1AA) of the AAT Act to update the references to the ‘Security Appeals Division’ to the ‘Security Division’, to reflect the name of the Division in the amalgamated Tribunal in new section 17A at Item 27. No other policy change is intended.

Item 70—Subsection 36D(3)

441.          Item 70 would amend subsection 36D(3) of the AAT Act to omit the word ‘presidential’. This is not intended to change the effect of the provision. Subsection 36D(3) is concerned with ensuring that in certain reviews the Tribunal must be constituted by a judge of the Federal Court of Australia. As all judges are presidential members, the term ‘presidential’ serves no purpose in this provision.

Item 71 and 72—Subsection 36D(5)

442.          Items 71 and 72 would amend subsection 36D(5) of the AAT Act to remove the references to Registrar, a District Registrar, a Conference Registrar or a Deputy Registrar and substitute with a reference to an officer of the Tribunal. This is consequential to the amendments proposed at Item 4 and 6 that would remove the definitions of District Registrar, Conference Registrar and Deputy Registrar.

Items 73–86—Amendments to section 37

443.          Items 73 to 86 would make various amendments to section 37 of the AAT Act. Existing section 37 is a core provision of the Act dealing with the process by which material documents—a statement of reasons for the decision under review and other relevant documents—are lodged with the Tribunal. In particular, section 37 sets out obligations on decision‑makers to lodge documents, the process by which these documents are provided to other parties, and the circumstances in which documents are not required to be lodged. Key amendments include:

·         amendments to minimise the administrative burden on decision-makers in relation to the provision of documents, including by reducing the number of copies that must be provided initially to the Tribunal

·         amendments to provide greater flexibility to the Tribunal to use practice directions in appropriate circumstances to specify the types of documents it requires for the purposes of particular classes of review

·         amendments to remove references to parts of a document, as the definition of document in section 2B of the Acts Interpretation Act is sufficiently broad to ensure that parts of documents would continue to be captured under section 37, and

·         amendments to establish a process for the provision of documents on second reviews.

444.          Amended section 37 would apply across the amalgamated Tribunal, with the exception of the Migration and Refugee Division, in respect of which the existing procedures in the Migration Act would continue to govern the provision of documents. Provisions in the social services legislation dealing with the provision of documents to the SSAT would generally be repealed: see subsections 157(3)–(5) of the SSA Act, subsections 232(3)–(6) PPL Act, subsections 119(3)–(5) of the FAA Act and subsections 95(3)–(6) and sections 95 and 97 of the CSRC Act. However, in relation to reviews in the Social Services and Child Support Division, the Acts conferring jurisdiction on the Tribunal would contain one additional power to obtain documents on an expedited basis (see, for example, new subsection 148(1) of the SSA Act which would be inserted by Item 42 of Schedule 3). The key change in practice for users of the SSAT in transitioning to the rules under section 37 would be that decision‑makers would be required to provide copies of documents lodged with the Tribunal to other parties. There is no requirement under existing SSAT rules (other than for child support or paid parental leave matters) for the decision-maker (or the SSAT) to do so but it is the practice of the SSAT to give the parties a copy of the documents received from the decision-maker.

445.          Item 87, which would amend section 38, is also related to the provision of documents.

Item 73—Subsection 37(1AAA)

446.          Item 73 would make consequential amendments to subsection 37(1AAA) of the AAT Act to update the references to the ‘Security Appeals Division’ to the ‘Security Division’, to reflect the name of the Division in the amalgamated Tribunal in section 17A at Item 27. No other policy change is intended.

Item 74—Subsections 37(1) to (1AB)

447.          Item 74 would repeal existing subsections 37(1), (1AA) and (1AB) of the AAT Act and substitute new subsections 37(1), (1AAB), (1AA) and (1AB).

448.          Existing subsection 37(1) requires that within 28 days after receiving notice of the application for review, the person who has made a decision that is the subject of review by the Tribunal must lodge with the Tribunal two copies of a statement of reasons for the decision and every other document in that person’s possession or control that is relevant to the review.

449.          New subsection 37(1) would preserve the 28 day time frame for providing documents. It would reduce the number of copies of documents which a primary decision-maker must lodge with the Tribunal from two to one. In practice, one copy is generally sufficient for the Tribunal’s purposes, and this change would reduce the regulatory burden on primary decision‑makers. If further copies are necessary, the Tribunal would continue to have the power to request additional copies under amended subsection 37(1AA). Consequential amendments to provisions in other Acts conferring jurisdiction on the Tribunal to reflect this reduction in the number of copies of documents required are in Schedule 8. The arrangement whereby the decision-maker could give the SSAT documents electronically will continue.

450.          New paragraph 37(1)(b) would provide that the obligation on decision‑makers to provide any relevant documents to the Tribunal (apart from the statement of reasons) would be subject to practice directions of the President under new section 18B at Item 27. This would permit the President to define the types of documents which may be required in relation to particular classes of proceedings. Such directions would assist decision‑makers by clarifying and, where appropriate, limiting their obligation to provide documents.

451.          New subsection 37(1) would not apply to second review. Instead, new subsection 37(1AAB) would deal with the provision of documents on second review. It would require that the person who made the decision to provide, within 28 days after receiving notice of the application for second review, any relevant documents (other than a statement of reasons) that are required to be lodged by virtue of a practice direction of the President under new section 18B. This change would be appropriate because following amalgamation both first and second review would be undertaken by the same Tribunal.

452.          Existing subsection 37(1AA) permits the Tribunal to direct a decision‑maker who has lodged two copies of any document under subsection 37(1) to lodge with the Tribunal such additional copies as the Tribunal sees fit, within a timeframe specified by the Tribunal.

453.          No policy change to the powers of the Tribunal in existing subsection 37(1AA) is intended. However, in light of the changes to subsection 37(1) to reduce the number of copies required from two to one, new subsection 37(1AA) would no longer refer to a person who has lodged two copies of a document under subsection 37(1). New subsection 18B(4) would also make clear that the President may giving directions relating to requirements to provide additional copies of documents in relation to classes of cases.

454.          Existing subsection 37(1AB) allows the President to direct, in relation to a particular decision or class of decisions, that a decision‑maker who is obliged to lodge a statement of reasons under existing subsection 37(1) may, in lieu of lodging the statement of reasons, lodge two copies of a document setting out the reasons for the decision that is the subject of the application for review.

455.          New subsection 37(1AB) would change this provision to enable the Tribunal to exercise the power in relation to a particular proceedings only. New subsection 18B(4) would enable the President to continue to make directions of this kind in relation to classes of cases.

456.          In light of the changes to subsection 37(1) to reduce the number of copies required from two to one, new subsection 37(1AB) would no longer refer to a person who has lodged two copies of a document under subsection 37(1).

Item 75—Subsection 37(1AC)

457.          Item 75 would amend subsection 37(1AC) of the AAT Act so that instead of referring to two copies of a document being lodged with the Tribunal, it would refer to one copy. This is a consequential amendment from the changes proposed to subsection 37(1) at Item 74. Subsection 37(1AC) permits the Tribunal to direct a decision-maker who has lodged a document in lieu of a statement of reasons under subsection 37(1AB) to lodge a statement of reasons under paragraph 37(1)(a).

Item 76—Subsection 37(1AE)

458.          Item 76 would repeal subsection 37(1AE) of the AAT Act and substitute new subsection 37(1AE).

459.          Existing subsection 37(1AE) has the effect that the decision‑maker is required to provide to the other parties to the proceeding a copy of the statement of reasons and other relevant documents lodged with the Tribunal within the same period as required for lodgement with the Tribunal.

460.          New subsection 37(1AE) would preserve this obligation on the decision‑maker unless the Tribunal directs otherwise. The ability of the Tribunal to exempt the decision‑maker from the requirement to provide to the other parties a copy of the statement of reasons and other relevant documents would be the only policy change. This is designed to ensure that in circumstances where there are multiple parties, documents, or parts of documents, would not be provided to another party where this would be inappropriate for any reason. A key example would be in child support matters where there may be a history of violence between the parties, which may make it inappropriate to disclose documents containing details from which the whereabouts of a party may be ascertained. In the SSAT, other than in a child support or paid parental leave matter, there is no obligation on the decision‑maker or the SSAT to provide a copy of documents other than the statement about the reviewable decision to the other parties. However, it is the SSAT’s practice to do so. The amendment proposed to subsection 37(1AE) would permit the Tribunal to continue to exercise its judgment in relation to such confidentiality issues, as a limited exception to the general principle in subsection 37(1AE) that relevant documents should always be made available to the parties.

461.          The effect of existing subsection 37(1AF) is to exempt decision‑makers from the obligation in subsection 37(1AE) to provide copies of documents to other parties where the decision‑maker applies for an order under section 35 in relation to those documents. The amendment to subsection 37(1AE) made by Item 76 would ensure that the Tribunal may act on its own initiative to prevent disclosures.

Item 77—Paragraph 37(1AF)(a), Item 78—Subparagraph 37(1AF)(b)(i); Item 79—Subsection 37(1AF); Item 80— Subsection 37(1AG); Item 81— Subsection 37(1A); Item 82—Subsection 37(1A); Item 84—Subsection 37(1A); Item 85—Subsection 37(1B)

462.          Items 77, 78, 79 and 80 would make consequential amendments to subsection 37(1AF) of the AAT Act. Items 81, 82 and 84 would make consequential amendments to subsection 37(1A) of the AAT Act. Item 85 would make consequential amendments to subsection 37(1B) of the AAT Act.

463.          In each case these consequential amendments would flow from the other changes to section 37 and otherwise simplify the drafting of the Act. These items are not in themselves intended to change policy.

464.          Item 77 would amend paragraph 37(1AF)(a) to:

·         omit references to lodging two copies of a document, in light of the change proposed at Item 74 on subsection 37(1) to only require one copy of any document lodged,

·         remove references to parts of a document as unnecessary due to the definition of document in section 2B of the Acts Interpretation Act, and

·         insert a reference to subsection 37(1AAB) to ensure that subsections 37(1AF) and 37(1AG) apply in relation to second reviews in the same way as they apply under existing policy to all reviews conducted by the AAT.

465.          Item 78 would repeal subparagraph 37(1AF)(b)(i) and substitute new subparagraph 37(1AF)(b)(i). New subparagraph 37(1AF)(b)(i) would:

·         update the reference in existing subparagraph 37(1AF)(b)(i) to subsection 35(2), which provides the Tribunal’s power to make non-disclosure orders, so that it refers to subsections 35(3) and (4), which would be the Tribunal’s power to make non‑disclosure orders as amended by Item 66, and

·         omit reference to lodging two copies of a document, in light of the change proposed at Item 74 to subsection 37(1) to only require one copy of any document lodged.

466.          Items 79 and 80 would amend subsection 37(1AF) and subsection 37(1AG) to:

·         insert a reference to subsection 37(1AAB). This would have the effect that a person who is required to lodge a document in relation to a second review is exempt from the requirement to lodge a copy with the Tribunal under subsection 37(1AAB) and therefore to give a copy to each other party to the proceeding where they have applied for a non‑disclosure direction under section 35 in relation to the document pending the determination of that application. This amendment would ensure that subsection 37(1AF) and 37(1AG) apply in relation to second reviews in the same way as they apply under existing policy to all reviews conducted by the AAT. Subsection 37(1AG) requires the decision‑maker to comply with subsection 37(1AAB) in relation to any documents not the subject of the application for an order under section 35.

·         remove references to parts of a document as unnecessary due to the definition of document in section 2B of the Acts Interpretation Act.

467.          Item 81 would amend subsection 37(1A) to insert a reference to subsection 37(1AAB). This would have the effect that the Tribunal may make a direction shortening the deadline for lodging documents in a second review. This amendment would ensure that subsection 37(1A) applies in relation to second reviews in the same way as it applies under existing policy to all reviews conducted by the AAT.

468.          Items 82 and 84 would amend subsection 37(1A) to omit references to lodging two copies of a document, in light of the change proposed at Item 74 on subsection 37(1) to only require one copy of any document lodged.

469.          Item 85 would amend subsection 37(1B) to insert a reference to subsection 37(1AAB). This would have the effect that where a person lodges an application for review that is not within the time limit specified in section 29, the time limit for the decision‑maker to lodge documents in relation to a second review is adjusted to be the later of 28 days after the application, or 28 days after the decision to grant an extension of time. This amendment would ensure that subsection 37(1B) applies in relation to second reviews in the same way as it applies under existing policy to all reviews conducted by the AAT.

Item 83—Subsection 37(1A) and Item 86— Subsection 37(1C)

470.          Item 83 would amend subsection 37(1A) of the AAT Act, and Item 86 would amend subsection 37(1C) of the AAT Act, to omit the words ‘as prescribed’. The removal of the requirement to prescribe procedures in Regulations is consistent with other amendments that would be made by the Bill. This change would not prevent such matters being prescribed in Regulations but would also permit the President in appropriate circumstances to specify how requests may be made in practice directions made under new section 18B. This would provide more flexibility to the Tribunal.

Item 87—Section 38

471.          Item 87 would repeal section 38 of the AAT Act, and substitute new sections 38 and 38AA.

New section 38—Power of Tribunal to obtain additional statements

472.          Existing subsection 38(1) of the AAT Act empowers the Tribunal to order a person who has lodged a statement of reasons for a decision under paragraph 37(1)(a) to lodge an additional statement containing further and better particulars, if the Tribunal considers that the statement lodged initially was inadequate. Subsection 38(2) provides that subsection (1) does not apply to a proceeding in the Security Appeals Division, as it is now known, to which section 39A applies.

473.          New section 38 would not change existing policy, but the drafting would be simplified and updated to reflect the name change of the Security Division (see Item 27).

New section 38AA—Ongoing requirement for lodging material documents with Tribunal

474.          New subsection 38AA(1) would impose an ongoing obligation on persons to whom subsections 37(1) or (1AAB) apply—that is, persons who have made a decision that is subject to first or second review—to lodge with the Tribunal a copy of any document that comes into their possession that is relevant to the review and has not been lodged previously, until such time as the Tribunal determines the review. Decision‑makers would be required to lodge such documents as soon as practicable after obtaining possession of them. The obligation would be subject to any practice directions given by the President under new section 18B.

475.          The continuous disclosure obligation in new section 38AA would reflect existing policy within the SSAT: see subsections 157(3)–(5) of the SSAT Act, subsections 232(3)–(6) of the PPL Act, subsections 119 (3)–(5) of the FAA Act and subsections 95(3)–(6) and sections 95 and 97 of the CSRC Act. The proper conduct of reviews is assisted by the Tribunal having all relevant information before it. The President’s ability to make practice directions to define the scope of the continuous disclosure obligation would ensure that it is not unduly burdensome on decision‑makers.

476.          New subsection 38AA(2) would apply subsections 37(1AA), (1AE), (1AF) and (1AG) to the continuous disclosure obligation in the same way as those sections apply to the primary obligation on decision‑makers to lodge material documents with the Tribunal. This would have the effect that the Tribunal could order that additional copies of documents provided under section 38AA be lodged; that unless the Tribunal orders otherwise, the decision‑maker would be required to provide copies of documents lodged under section 38AA to other parties; and that the decision‑maker could seek an exemption from the requirement to lodge documents under section 38AA where the document is the subject of an application for a non‑disclosure direction under section 35.

Item 88—Section 39 (heading)

477.          Item 88 would repeal the heading to section 39 of the AAT Act and substitute a new heading that would reflect the scope of section 39 as amended by Item 89.

Item 89—Subsection 39(2)

478.          Item 89 would repeal subsection 39(2) of the AAT Act, and substitute new subsections 39(2)–(3).

479.          Existing subsection 39(2) states that subsection 39(1)—which requires the Tribunal to ensure that each party to a proceeding has a reasonable opportunity to present their case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision and to make submissions in relation to those documents—does not apply to a proceeding in the Security Appeals Division (as it is currently known) to which section 39A applies.

480.          New subsection 39(2) would continue to exclude the Security Division from the application of subsection 39(1). This reflects the sensitive nature of information that may form the basis of decisions reviewable in that Division.

481.          New subsection 39(2) would also exclude the Social Services and Child Support Division from the application of subsection 39(1). New section 39AA (Item 90) would provide for the right of parties in that Division to make submissions, consistent with existing policy in the SSAT. New section 39AA would better promote the expeditious and informal nature of proceedings, which is a critical feature of the SSAT that should be preserved in the amalgamation.

482.          New subsection 39(3) would provide that section 39 does not limit subsection 25(4A). This is intended as a statement that confirms existing policy. Existing subsection 25(4A) provides that the Tribunal may determine the scope of the review by limiting the questions of fact, evidence and issues it considers. This rule is central to the Tribunal’s function of reaching the correct or preferable decision in a manner that is fast, just, economical, informal, and quick. It is the Tribunal that controls the conduct of the review and the parties are expected to present their case in a manner that is focussed on the real issues in dispute and does not lead to obfuscation or unwarranted delay. The Tribunal may also assist parties, especially the majority of parties who are not represented, to make submissions that are directed to the most relevant issues or information before the Tribunal.

Item 90—After section 39

483.          Item 90 would insert a new section 39AA that would deal with the manner in which parties to proceedings in the Social Services and Child Support Division may make submissions.

484.          New section 39AA reflects existing policy in the SSAT on the making of submissions by parties: see subsection 161(1) and section 163A of the SSA Act, subsection 237(1) and section 240 of the PPL Act, subsection 123(2) and section 126A of the FAA Act, and subsection 103C(1) and section 103F of the CSRC Act.

485.          New subsection 39AA(1) would entitle parties (other than agency parties) to make oral and/or written submissions to the Tribunal. This would ensure that parties have an opportunity to present their case.

486.          New subsections 39AA(2)–(5) would deal with the making of submissions by agency parties. In general terms, the provisions would permit the Tribunal to exercise a degree of control over the participation by agency parties in reviews in the Social Services and Child Support Division, consistent with the existing powers of the SSAT:

·         new subsection 39AA(2) would permit an agency party to make written submissions

·         new subsections 39AA(3)–(4) would have the effect that the Tribunal could permit an agency party to make oral submissions, where this would assist the Tribunal, and

·         new subsection 39AA(5) would permit the Tribunal to order an agency party to make written, oral or written and oral submissions, where this would assist the Tribunal. This power is helpful given that agencies typically do not participate in reviews before the SSAT.

487.          New section 39AA is silent on the inspection of documents. The SSAT does not have explicit legislative rules concerning this matter but the SSAT gives parties a copy of any documents which are before it in the review. In practice, the operation of new subsection 37(1AE) (see Item 76) would provide parties with access to a copy of all documents before the Tribunal, subject to any restrictions necessary for confidentiality or other reasons.

Item 91—Section 39A (heading)

488.          Item 91 would repeal the heading to section 39A of the AAT Act and substitute a new heading which would clarify that section 39A relates to review of security assessments only. No change to the scope of the provision is intended.

Item 92—Subsection 39A(4) and Item 93— Subsection 39A(17)

489.          Item 92 would amend subsection 39A(4) and Item 93 would amend subsection 39A(17) of the AAT Act. These amendments would simplify the drafting by omitting the word ‘presidential’ as it serves no purpose in either subsection. No change to existing policy is intended.

Item 94—Section 39B (heading)

490.          Item 94 would repeal the heading to section 39B of the AAT Act and substitute a new heading which would clarify that section 39B relates to review of security assessments only. No change to the scope of the provision is intended.

Item 95—Subsection 39B(1)

491.          Item 95 would make consequential amendments to subsection 39B(1) of the AAT Act to update the references to the ‘Security Appeals Division’ to the ‘Security Division’, to reflect the names of the Divisions in the amalgamated Tribunal in section 17A at Item 27. No other policy change is intended.

Item 96—Paragraph 39B(5)(b); Item 97— Subsection 39B(5) and Item 98—Subsection 39B(6) (heading); and Item 99—Paragraphs 39B(6)(a) and (b)

492.          Item 96 would amend existing paragraph 39B(5)(b), Item 97 would amend subsection 39B(5), Item 98 would repeal the heading to subsection 39B(6) and substitute a new heading, and Item 99 would amend paragraphs 39B(6)(a) and (b) of the AAT Act to simplify the drafting by replacing references to ‘presidential member’ with ‘presiding member’. No change to existing policy is intended.

Item 100—Subsections 40(1A) to (1E)

493.          Item 100 would repeal existing subsections 40(1A) to (1E) of the AAT Act, which deal with the power of the Tribunal to issue summonses. Item 103 would insert new sections 40A and 40B, which would deal with matters related to summonses and replace subsections 40(1A) to (1E).

Item 101—Paragraphs 40(2)(b) and (c)

494.          Item 101 would repeal existing paragraphs 40(2)(b) and (c) of the AAT Act, and substitute new paragraph 40(2)(b).

495.          Existing paragraph 40(2)(b) provides that the Tribunal may administer an oath or affirmation to a person appearing before the Tribunal. New paragraph 40(2)(b) is in the same terms.

496.          Existing paragraph 40(2)(c) provides that where a person appears before the Tribunal by telephone or other electronic means, the Tribunal may make appropriate arrangements to administer an oath or affirmation to a person. This is a minor administrative matter which would be handled routinely by Tribunal members. It is unnecessary for legislation to refer to it.

Item 102—Subsections 40(3) to (6)

497.          Item 102 would repeal subsections 40(3) to (6) of the AAT Act, and substitute new subsections 40(3) to (5).

498.          Existing subsection 40(3) states that the oath or affirmation taken or made by a person is that the person’s answers to questions will be true. This is unnecessary to state in legislation and can be dealt with by the Tribunal administratively.

499.          Existing subsection 40(4) provides for persons summoned to appear before the Tribunal to be represented, with the permission of the Tribunal. A new provision to this effect would be incorporated into section 32, which deals with representation of other persons involved in proceedings (at Item 54).

500.          Existing subsections 40(5)–(6) have the effect that the presiding member may authorise another person (whether or not a member of the Tribunal) to take evidence on oath or affirmation, within or outside Australia, subject to any limitations specified by the Tribunal. The power to have another person taking evidence on behalf of the Tribunal is useful, albeit rarely required in practice. New subsections 40(3) to (5) preserve this power, with simplifications in drafting that are not intended to change existing policy.

Item 103—After section 40

501.          Item 103 would insert new sections 40A and 40B into the AAT Act, to empower the Tribunal to issue summonses and deal with the inspection of documents produced under summons. The new sections are drafted in simpler terms, but would largely replicate the policy of existing subsections 40(1A)–(1E). Minor changes would streamline and codify existing procedures around summonses.

New section 40A—Power to summon person to give evidence or produce documents

502.          Existing subsection 40(1A) of the AAT Act permits the member presiding at a hearing, the Registrar, a District Registrar or Deputy Registrar to summon a person to appear before the Tribunal to give evidence or produce documents or both at that hearing. Failure to comply with a summons would be an offence under new section 61 (see Item 135).

503.          New subsection 40A(1) would provide that the President, an authorised member, or an officer of the Tribunal may summon a person to appear before the Tribunal to give evidence, to produce any document or thing, or to do both of those things on the day and at the time and place specified in the summons. No change to the scope of matters that may be the subject of a summons is intended. New subsection 40A(1) would give the Tribunal greater flexibility in relation to specifying the date, time and place for complying with the summons.

504.          The issuing of summonses in routine or uncontroversial matters is a function typically undertaken in the AAT by a District Registrar or Deputy Registrar. In complex or sensitive matters, the request would be referred to a member. The minor policy change of vesting the summons power in the President or an authorised member rather than the presiding member would reflect that summons are generally issued before the hearing of a proceeding and would be consistent with the approach to the exercise of the Tribunal’s powers before a hearing commences specified in subsection 19B(2). It is expected that members would generally be authorised for the purpose of this provision and therefore the power would be exercisable by the presiding member. The minor policy change of vesting the power in an ‘officer of the Tribunal’ reflects the removal of references in the Act to District Registrar and Deputy Registrars by Item 6 and the creation of a general category of officers of the Tribunal (see new section 24PA inserted by Item 38).

505.          Existing section 40(1B) provides that summons may also be issued for the production of documents at directions hearings. It is unnecessary to replicate this provision, as new subsection 40A(1) provides sufficient scope to include directions hearings.

506.          Summons power would not apply in the Social Services and Child Support Division: The note in new subsection 40A(1) would state that this section does not apply in relation to proceedings in the Social Services and Child Support Division, by virtue of provisions in Acts conferring jurisdiction on the amalgamated Tribunal in respect of applications for reviews in that Division. Relevant amendments to those other Acts are in Schedules 3–7). Instead of subsection 40A(1) applying, a comprehensive suite of alternative information gathering powers that are better suited to those reviews currently dealt with by the SSAT would be retained.

507.          Power to refuse a request to issue a summons: Existing subsection 40(1C) has the effect that where a party requests that a summons be issued, only a presidential member, a senior member or an authorised member may refuse the request.

508.          New subsection 40A(2) is drafted in simplified form, and would permit the President or an authorised member to refuse a request to issue a summons. This would permit the President to authorise members (including classes of members) to decide whether requests to issue summons should be refused.

509.          Attendance by persons required to produce documents: Existing subsection 40(1E) provides that a person who is summoned to produce documents may produce them earlier than the specified date, and is not required to attend a hearing unless the Tribunal directs otherwise or the person is also required to give evidence. New subsection 40A(3) replicates existing subsection 40(1E).

New section 40B—Inspection of documents produced under summons

510.          Existing subsection 40(1D) of the AAT Act has the effect that a party cannot inspect documents produced under a summons unless a presidential member, senior member or authorised member grants leave for this to occur. The Tribunal may refuse to grant parties leave to inspect documents produced under summons on a number of grounds, including relevance, legal professional privilege, or public interest immunity.

511.          New subsection 40B(1) largely replicates existing policy, however, it would provide that leave to inspect documents produced under summons may be granted by the President, an authorised member or authorised officer. This would streamline the categories of persons who may grant leave and provide flexibility to the President to authorise members (or classes of members) and officers (or classes of officers) with appropriate expertise to handle these matters. The exercise of this power by officers would be consistent with other case management duties they perform.

512.          New subsections 40B(2)–(3) would effect minor policy changes by establishing procedures for oversight by the Tribunal of the exercise of decisions by officers in relation to leave to inspect documents.

513.          New subsection 40B(2) would provide that an authorised officer must not make a decision about granting leave, and must instead arrange for the President or an authorised member to do so, if either the officer considers that it is not appropriate for the officer to make the decision, or a party applies to the officer to have the decision made by a member of the Tribunal. This would ensure that decisions about which parties may see which documents are handled by members in complex or sensitive matters, or where parties have serious concerns about access to documents.

514.          New subsection 40B(3) sets out a process for the Tribunal to reconsider decisions of authorised officers in relation to leave to inspect documents produced under summons. Paragraph 40B(3)(a) would provide that where an authorised officer makes a decision about whether or not to grant leave to a party to inspect documents produced under summons, a party to the proceeding may apply to the Tribunal, within 7 days or such further timeframe as the Tribunal allows, to reconsider the decision. Paragraph 40B(3)(b) would permit the Tribunal to reconsider the decision either on such an application from a party or on its own initiative. Paragraph 40B(3)(c) would permit the Tribunal to make such order as it thinks fit in relation to leave to inspect the document.

515.          The proposed note in new section 40B would state that this section does not apply in relation to proceedings in the Social Services and Child Support Division. The exclusion of section 40B in relation to that Division follows from the position that section 40A would also not apply.

Item 104—Subsection 41(2) and Item 106—Subsection 41(3)

516.          Item 104 would amend existing subsection 41(2), and Item 106 would amend existing subsection 41(3) of the AAT Act, to omit the words ‘as prescribed’.

517.          The removal of the requirement to prescribe in Regulations the process for making requests under these subsections is consistent with other amendments in the Bill. This change would not prevent such matters being prescribed in Regulations but would also permit the President in appropriate circumstances to specify how requests may be made in practice directions made under new section 18B. This would provide more flexibility to the Tribunal.

Item 105—At the end of subsection 41(2)

518.          Item 105 would add a note to inform readers that existing section 41 of the AAT Act does not apply to proceedings in the Social Services and Child Support Division, as a result of provisions in Acts conferring jurisdiction on the amalgamated Tribunal in respect of applications for reviews in that Division. Amendments to those other Acts that would ensure that section 41 would not apply in that Division are in Table Item 4 of new section 147 of the SSA Act at Item 42 of Schedule 3, new section 95A of the CSRC Act at Item 64 of Schedule 4, new sections 112 and 131 of the FAA Act at Items 22 and 23 of Schedule 5, new section 225 of the PPL Act at Item 20 of Schedule 6, and new section 313 of the SA Act at Item 11 of Schedule 7.

519.          Section 41 empowers the Tribunal to make orders staying or otherwise affecting the operation or implementation of the decision under review. The SSAT does not currently have the ability to make stay orders. The exclusion of section 41 would preserve the existing position. The power for the Tribunal to make stay orders is unnecessary in social services and child support first reviews, given that reviews are typically conducted quickly and there are alternate mechanisms in place to ensure that parties are not disadvantaged by the operation of the decision under review. Social security and family assistance recipients may receive payment of their entitlement pending review in some circumstances: see sections 145 of the SSA Act and 112 of the FAA Act. Further, in some cases where the Tribunal varies, or sets aside and substitutes, the decision under review, it may determine that its decision has effect such that an applicant may be entitled to back payment: see, for example, existing section 152 of the SSA Act and section 111B of the FAA Act.

520.          Section 41 would continue to apply to second reviews of social services and child support matters, in accordance with existing policy in relation to the review of these matters by the AAT.

Item 107—Section 42

521.          Item 107 would repeal existing section 42 of the AAT Act and substitute new section 42.

522.          Existing section 42 provides rules for how disagreements between members are resolved in the event they arise. Existing subsection 42(1) provides that if the Tribunal is constituted by 2 members, and they disagree about any matter arising in the proceeding, the view of the presiding member prevails. Similar rules are provided by subsection 356(2) of the Migration Act and subsection 172(2) of the SSA Act. New subsection 42(2) would preserve this rule.

523.          Existing subsections 42(2)­(3) deal with three member panels. The rules around resolving disagreements distinguish between questions of fact and questions of law. In disagreements over questions of fact, subsection 42(2) provides that if the majority agree, the view of the majority prevails, while otherwise the view of the presiding member prevails. In disagreements over questions of law, subsection 42(3) provides that the view of the presiding member prevails.

524.          New subsection 42(1) would provide a single, simplified rule whereby a disagreement between members on a three member panel is to be settled according to the opinion of the majority of the members. This rule is appropriate for the amalgamated Tribunal. The distinction between fact and law is difficult to apply in practice, and does not recognise that cases may turn on mixed questions of fact and law, or questions of both fact and law. Further, the members constituting the Tribunal in a particular matter may not always have legal qualifications, particularly in the Migration and Refugee Division and the Social Services and Child Support Division. New subsection 42(1) would reflect the existing position in the MRT and the SSAT: see sections 356 Migration Act, 174 SSA Act, 138 FAA Act, 254 PPL Act, 103U CSRC Act. The RRT has no existing rule on resolving disagreements as it is always constituted by a single member.

525.          New section 42 would apply across the amalgamated Tribunal: see new section 24Z at Item 39 concerning the application of Part IV to the Migration and Refugee Division generally.

Item 108—After subsection 42A(1)

526.          Item 108 would insert new subsection 42A(1AAA) into the AAT Act, to provide that the consent of the agency party to a proceeding in the Social Services and Child Support Division is not required for the purposes of subsection 42A(1). Subsection 42A(1) permits the Tribunal to dismiss an application without reviewing the decision where all of the parties consent.

527.          New subsection 42A(1) would preserve the existing position in relation to the dismissal of applications by consent in the SSAT, where there are legislative provisions to the effect that the consent of the Child Support Registrar, the Secretary, the Chief Executive Centrelink, or the Chief Executive Medicare (as the case may be) is not required in circumstances where the other party or parties consent to dismissal (see, for example, subsections 171(6) and 172(6) of the SSA Act). These provisions would be repealed in the social services law. New subsection 42A(1) would promote the efficient resolution of applications in the Social Services and Child Support Division, where it is expected that, as with the SSAT at present, agency parties would not typically participate in proceedings.

Item 109—After subsection 42A(1A)

528.          Item 109 would insert new subsection 42A(1AAA) into the AAT Act. Subsection 42A(1A) permits the applicant to notify the Tribunal in writing at any time that the application is discontinued or withdrawn.

529.          New subsection 42A(1AAA) would provide that if a proceeding is in the Social Services and Child Support Division, and is not a child support first review, the person who has made an application to the Tribunal may notify the Tribunal orally of the withdrawal or discontinuance. This would preserve the existing position in the SSAT that applicants in matters other than child support matters may notify the Tribunal orally or in writing that they do not wish to proceed with their application (see, for example, subsection 172(2) of the SSA Act). New subsection 42A(1AAA) would require the person who receives the oral notification to make a written record of the day of its receipt, as is done now in the SSAT.

Item 110—Subsection 42A(1B)

530.          Item 110 would make a consequential amendment to subsection 42A(1B) of the AAT Act, in light of the proposed insertion of new subsection 42A(1AA) at Item 109. Existing subsection 42A(1B) has the effect that if an applicant notifies the Tribunal under subsection 42A(1A) that they wish to withdraw or discontinue the application, the Tribunal is taken to have dismissed the application. New subsection 42A(1B) would refer to notification provided under both subsections 42A(1A) and (1AA). This amendment is necessary to ensure that oral notifications are effective to dispose of the proceeding.

Item 111—Subsections 42A(3) to (4)

531.          Item 111 would repeal existing subsections 42A(3)–(4) of the AAT Act, and substitute a new subsection (4).

532.          Existing subsections 42A(3) and (3A) provide that, for the purposes of subsection 42A(2) (dismissal where a party fails to appear) where a person or the person’s representative participates at a directions hearing or hearing (existing subsection 42A(3)) or an alternative dispute resolution process (existing subsection 42A(3A)), by a means specified in sections 34A or 34G (for example, by telephone), then they are taken to appear at the hearing or process.

533.          Appearance by telephone or video conferencing is an established and uncontroversial process. Existing provisions are no longer necessary and can be repealed. New section 33A (inserted by Item 59) would continue to clarify that a person may participate in a hearing by telephone or other electronic means.

534.          Existing subsection 42A(4) provides for dismissal of an application where the applicant cannot demonstrate that the decision that is being challenged is reviewable.

535.          Item 111 would repeal existing subsection 42A(4) and substitute a new, simpler provision. New subsection 42A(4) would provide that the Tribunal may dismiss an application without reviewing the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal. The requirement of existing subsection 42A(4) that the Tribunal give the applicant an opportunity to demonstrate that the decision is reviewable is a requirement of procedural fairness and need not be stated in legislation.

Item 112—Subsection 42A(6)

536.          Item 112 would repeal existing subsection 42A(6) of the AAT Act.

537.          Existing subsection 42A(6) provides that if the Tribunal dismisses an application, or an application is dismissed on its behalf, the proceeding to which the application relates is taken to be concluded (unless the application is reinstated under existing subsection 42A(9) or (10).

538.          This provision is unnecessary to state explicitly and can be removed to simplify the section.

Item 113—Subsection 42A(7)

539.          Item 113 would amend existing subsection 42A(7) of the AAT Act by omitting the words ‘conference, mediation’ and substituting the phrase ‘alternative dispute resolution process’, which is defined in existing subsection 3(1) to include both conferences and mediation (as well as other forms of alternative dispute resolution).

540.          Existing subsection 42A(7) provides that, before exercising its powers under subsection 42A(2) to dismiss an application because a party failed to appear, the Tribunal must be satisfied that appropriate notice was given, to the person who failed to appear, of the time and place of the directions hearing, conference, mediation or hearing.

541.          Item 113 would amend this provision to replace the reference to conference or mediation with a reference to an alternative dispute resolution process. This reflects the approach of new section 34A that would be inserted by Item 61, which does not differentiate between these forms of alternative dispute resolution.

Items 114—Subsection 42A(8), and Item 115—After subsection 42A(8)

542.          Items 114 and 115 would amend and restructure existing subsection 42A(8) of the AAT Act.

543.          Existing subsection 42A(8) provides that, where the Tribunal has dismissed an application under existing subsection 42A(2) (other than an application relating to a proceeding in respect of which a stay order has been made under subsection 41(2)), the person who made the application may apply within 28 days of notification of the dismissal for the application to be reinstated.

544.          Item 114 would amend existing subsection 42B(8) to make two key changes:

·         The reference to the person who made the application is changed to a party to the proceeding. In matters with two citizen parties (eg child support), the applicant may decide not to pursue an application but the other party may wish to proceed. Accordingly, it is proposed that subsection 42B(8) be amended to refer to a ‘party’ to allow the non-applicant party to request reinstatement.

·         The time to apply would be provided in new subsection 42B(8A).

545.          Item 115 would insert a new subsection 42B(8A) to provide that an application for reinstatement must be made within:

·         28 days after the person making the application for reinstatement receives notification that the application has been dismissed, or

·         if the person requests an extension, such longer period as the Tribunal, in special circumstances, allows.

546.          New paragraph 42A(8A)(a) would reflect the policy of existing subsection 42A(8). New paragraph 42A(8A)(b) is intended to preserve the policy of provisions in the child support legislation (subsections 100(3) and 100A(3) of the CSRC Act) and of social services legislation (such as subsections 171(3), 172(4) of the SSA Act; 135(3), 136(4) of the FAA Act).

Item 116—Section 42B

547.          Item 116 would repeal existing section 42B of the AAT Act and substitute a new section 42B.

548.          Existing section 42B empowers the Tribunal to take action at any stage of a proceeding where it determines that an application is frivolous or vexatious to:

·         dismiss the application, and

·         if appropriate, on the application of a party to the proceeding, direct that the person who made the application must not make another application to the Tribunal of a kind specified in the direction without leave.

549.          The SSAT has a similar dismissal power under existing paragraph 171(1)(b) and subsection 171(2) of the SSA Act and elsewhere in the social services legislation.

550.          New section 42B would maintain this policy and provide for additional circumstances in which the Tribunal may dismiss an application for review.

551.          New subsection 42B(1) would provide that the Tribunal may dismiss an application for review of a decision at any stage of a proceeding, if the Tribunal is satisfied that the decision is:

·         frivolous, vexatious, misconceived or lacking in substance

·         has no reasonable prospect of success, or

·         is otherwise an abuse of process of the Tribunal.

552.          This amendment would modernise the language of existing paragraph 42B(1)(a) and clarify the policy surrounding the grounds for dismissal. The proposed new grounds are similar to dismissal powers available to other bodies. For example Rule 26.01 of the Federal Court Rules 2011 allow for summary judgment on matters which have no reasonable prospect of success, or are an abuse of process. Similarly, section 47 of the Queensland Civil and Administrative Tribunal Act 2009 provides for dismissal of applications where the application is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process. These powers would provide the Tribunal with greater power to dismiss unmeritorious matters early where appropriate.

553.          New subsection 42B(2) would provide that, where the Tribunal dismisses an application under new subsection 42B(1) it may on the application of a party to the proceeding, give a written direction that the person who made the application must not make another application to the Tribunal of a kind specified in the direction without leave. This reproduces the policy of existing paragraph 42B(1)(b).

554.          New subsection 42B(3) would provide that a direction under subsection 42B(2) has effect despite any other provision of the AAT Act or any other Act. This reproduces the policy of existing subsection 42B(2).

555.          Existing subsection 42B(3), which provides that the Tribunal may discharge or vary such a direction, has not been reproduced as the ability of the Tribunal to vary or revoke its direction is made clear by subsection 33(3) of the Acts Interpretation Act.

Item 117—At the end of section 42C

556.          Item 117 would add new subsections 42C(4), (5) and (6) at the end of existing section 42C of the AAT Act.

557.          Existing section 42C provides that if the parties to a proceeding reach agreement as to the decision the Tribunal should make in respect of the whole proceeding (existing subsection 42C(2)) or part of the proceeding (existing subsection 42C(3)), the Tribunal may act in accordance with the parties’ agreement, if it is satisfied that the terms of the agreement are within the powers of the Tribunal.

558.          Item 117 would add new provisions to the end of existing section 42C to:

·         provide additional safeguards around such decisions in relation to child support matters, based on existing child support law

·         provide for variation or revocation of such decisions, and

·         provide that variation or revocation of such decisions is not possible for child support first review.

559.          New subsection 42C(4) would provide that the Tribunal must not make a decision in terms agreed by the parties in relation to a departure from administrative assessment of child support in accordance with Part 6A of the CSA Act, unless it is satisfied that it is just and equitable and otherwise proper to do so, having regard to the matters in subsections 117(4) and (5) of the CSA Act. Those subsections provide a wide range of factors relating to the best interests of the child and the financial circumstances of the parents. This preserves the policy of existing subsection 103W(4) of the CSRC Act.

560.          New subsection 42C(5) would insert a new provision enabling the Tribunal to vary or revoke a decision made under subsections 42C(2) or (3) where the parties reach agreement to the variation or revocation, the agreement is reduced to writing, the Tribunal considers it appropriate, and the decision would be within the Tribunal’s powers. At present, the Tribunal does not have an explicit legislative power to vary or revoke such decisions in appropriate circumstances. New subsection 42C(5) would enable the Tribunal to implement outcomes satisfactory to the parties where it is within its powers to do so.

561.          New subsection 42C(6) would provide that new subsection 42C(5) does not apply to a decision on child support first review. This preserves the policy of existing section 103W of the CSRC Act.

Item 118—Subsection 42D(1)

562.          Item 118 would amend existing subsection 42D(1) of the AAT Act to insert the words ‘other than a proceeding in the Social Services and Child Support Division’ after ‘review of a decision’.

563.          Existing subsection 42D(1) provides that any stage of a proceeding for review of a decision, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.

564.          The amendment made by Item 118 would prevent a member in the Social Services and Child Support Division exercising this power to remit a matter for reconsideration. Use of this power in the social services jurisdiction would add delay to the resolution of matters and is undesirable given the particular need for efficiency and timeliness in the review of decisions relating to social services.

Item 119—After subsection 43(5)

565.          Item 119 would insert provisions at the end of existing section 43(5) of the AAT Act to provide that the Tribunal must notify parties of further review rights.

566.          The AAT Act does not currently require the Tribunal to notify parties of their appeal rights under section 44 of the AAT Act, although this is done in practice. However, the SSAT must provide a written notification to the non-agency parties of any appeal rights to the AAT: see, for example, section 177 of the SSA Act, section 141 of the FAA Act, and section 257 of the PPL Act. In addition, under section 103X of the CSRC Act, the SSAT must provide a written notification to non-agency parties of their right to appeal to a court on a question of law, and in relation to care percentage decisions, of their right to apply to the AAT for second review. Under the social services legislation, failure to comply with these notification requirements does not invalidate the decision.

567.          New subsection 43(5) would preserve this policy from the social services legislation by requiring the Tribunal to notify parties of:

·         their right to apply for second review of a decision (where applicable), and

·         their right to appeal to a court on a question of law.

568.          New subsection 43(5B) would provide that new subsection 43(5B) does not apply to an agency party in the Social Services and Child Support Division. Agency parties are regular participants in the system, and do not need to be notified of these rights.

569.          New subsection 43(5C) would provide that a failure to comply with new subsection 43(5A) in relation to a decision of the Tribunal does not affect the validity of the decision. This preserves the current policy of the social services legislation.

Item 120—Subsection 43(4)

570.          Item 120 would omit references to District and Deputy Registrars from existing subsection 43(4) of the AAT Act.

571.          Existing subsection 43(4) provides that a document purporting to be a copy of a Tribunal decision or order, and certified by the Registrar, a District Registrar or a Deputy Registrar to be a true copy of the decision or order is, in any proceeding, prima facie evidence of the decision or order.

572.          Item 120 would change this rule to only empower the Registrar to certify decisions or orders of the Tribunal, by removing references to Deputy and District Registrars. However, under the delegation power in new subsection 10A(3) that would be inserted by Item 79M, the Registrar may delegate any of his or her powers to an officer of the Tribunal or a member of staff. Accordingly, this amendment would not change policy.

Item 121—Section 43AAA (heading)

573.          Item 121 would repeal the heading to section 43AAA of the AAT Act and substitutes a new heading, to reflect the change of name of the Security Appeals Division to Security Division (see new section 17A inserted by Item 27).

Item 122—Subsection 43AAA(1)

574.          Item 122 would amend existing subsection 43AAA(1) of the AAT Act to omit the words ‘review conducted by the Security Appeals Division’ and substitute the words ‘review in the Security Division’.

575.          This amendment to existing subsection 43AAA(1) reflects the change of name of the Security Appeals Division to Security Division (see new section 17A inserted by Item 27), and simplifies the drafting of the provision. It is not intended to change policy.

Item 123—Section 43A

576.          Item 123 would repeal existing section 43A of the AAT Act.

577.          Existing section 43A provides that the Tribunal may return documents to the persons who provided them to the Tribunal (including where documents are returned to the Tribunal by a court), at the expiry of the applicable appeal period or when the appeal (if brought) is determined.

578.          Arrangements for the return of documents can be dealt with in the context of the Tribunal’s general record-keeping policies and procedures, and by practice directions if necessary.

Item 124—After section 43B

579.          Item 124 would insert new section 43C to provide that Part IVA of the AAT Act does not apply to applications or proceedings relating to the review of certain migration decisions, including privative clause decisions, purported privative clause decisions or AAT Act migration decisions as defined by the Migration Act.

580.          Existing Part IVA of the AAT Act provides a clear framework for how a person can seek judicial review of AAT decisions.

581.          Currently, judicial review of migration decisions is provided by the Migration Act. New section 43C would provide that Part IVA of the AAT Act does not apply to these migration proceedings for which this alternative judicial review framework exists. This Item would not change the existing policy.

Item 125—At the end of subsection 44(1)

582.          Item 125 would amend section 44 of the AAT Act by inserting notes at the end of existing subsection 44(1).

583.          Existing subsection 44(1) provides that a party to a proceeding before the Tribunal may appeal on a question of law to the Federal Court of Australia from any decision of the Tribunal in that proceeding.

584.          New note 1 would clarify that subsection 44(1), as a provision in Part IVA of the AAT Act, does not apply to certain migration proceedings as set out in new section 43C as inserted by Item 124.

585.          New note 2 would clarify that a party to a child support first review may in certain circumstances appeal to the Federal Circuit Court as well as to the Federal Court of Australia, in accordance with new section 44AAA as inserted by Item 129.

Item 126—After subsection 44(1)

586.          Item 126 would amend existing section 44 of the AAT Act by inserting a new subsection 44(1A).

587.          Existing subsection 44(1) provides that a party to a proceeding before the Tribunal may appeal on a question of law to the Federal Court of Australia from any decision of the Tribunal in that proceeding.

588.          Social services legislation does not generally provide for appeals on a question of law from decisions of the SSAT. Child support decisions and certain paid parental leave decisions are an exception to this rule.

589.          New subsection 44(1A) would provide that the right to judicial review of a Tribunal decision under subsection 44(1) does not apply in relation to a proceeding in the Social Services and Child Support Division, with the exception of child support decisions which are referred to in section 89 of the CSRC Act and reviewable employer decisions within the meaning of the PPL Act. This does not preclude judicial review of other social services decisions. However, in line with existing policy, an appeal on a question of law would only be provided for in AAT Act for second review of these decisions.

Item 127—At the end of subsection 44(2)

590.          Item 127 would amend section 44 of the AAT Act by adding a note at the end of subsection 44(2).

591.          Under existing subsection 27(1) a person whose interests are affected by a decision may apply to the Tribunal for review of that decision. Under existing subsection 30(1A), where an application for review of a decision has been made, any other person whose interests are affected by a decision may apply to be made a party. Existing section 31 of the AAT Act empowers the Tribunal to determine whether the interests of a person are affected for the purposes of these provisions. If the Tribunal decides that a person’s interests are not affected, the result is that they cannot apply for review, or be made a party to a review.

592.          Existing subsection 44(2) provides that a person may appeal to the Federal Court of Australia to review a decision of the Tribunal that determines that the interests of a person are not affected by a decision in these circumstances.

593.          The new note would clarify that subsection 44(2), as a provision in Part IVA of the AAT Act, does not apply to certain migration proceedings as set out in new section 43C as inserted by Item 124.

Item 128—Subparagraph 44(3)(b)(i)

594.          Item 128 would omit the words ‘presidential member’ in existing subparagraph 44(3)(b)(i) of the AAT Act and substitute the words ‘a Deputy President who is not a Judge’.

595.          Existing subsection 44(3) sets out the circumstances in which an appeal on a question of law under existing subsection 44(1) (arising from a proceeding) or an appeal about standing under existing subsection 44(2) (arising from an application or proceeding) before the Tribunal may or must be heard by a Full Court of the Federal Court.

596.          The subsection provides that such appeals:

·         may be heard by a Full Court of the Federal Court (existing paragraph 44(3)(a))

·         must be heard by a Full Court of the Federal Court where the Tribunal was constituted by at least one presidential member and, after consultation between the President of the Tribunal and the Chief Justice of the Federal Court of Australia, the Chief Justice considers it appropriate that the appeal be heard by a Full Court, (existing paragraph 44(3)(b), and

·         must be heard by a Full Court of the Federal Court where the Tribunal was constituted by at least one member who is a Judge (existing paragraph 44(3)(c).

597.          The amendment made by Item 128 clarifies existing paragraph 44(3)(b) by replacing the reference to a presidential member with a reference to a Deputy President who is not a judge. The rule in relation to decisions involving the President and Deputy Presidents who are Judges is provided by paragraph 44(3)(c). The only presidential members who are not Judges are non-judicial Deputy Presidents. This amendment would not change existing policy.

Item 129—After section 44

598.          Item 129 would insert new section 44AAA into Part IVA of the AAT Act to provide for appeals on a question of law in relation to decisions in child support first reviews to be made to the Federal Circuit Court.

599.          This Item maintains an avenue of appeal to the Federal Circuit Court available under the CSRC Act. The Federal Circuit Court is currently the most frequently used avenue of appeal for these matters, and has developed expertise in dealing with them. Under section 110B of the CSRC Act, a party to a review by the SSAT may appeal on a question of law from a decision of the SSAT under section 103S of that Act to affirm, vary or set aside a decision of the Child Support Registrar.

600.          New subsection 44AAA(1) would provide that a party to a proceeding in a child support first review may appeal to the Federal Circuit Court on a question of law from any decision of the Tribunal in that proceeding, if the Tribunal as constituted for the proceeding does not include a presidential member (ie a Deputy President or the President). This jurisdiction for the Federal Circuit Court is concurrent with the jurisdiction of the Federal Court under subsection 44(1). Unless a decision was made by the Tribunal involving a presidential member, parties may choose whether to file in the Federal Court or the Federal Circuit Court. Where an appeal is lodged in the Federal Circuit Court, an appeal would lie to the Federal Court of Australia from the decision of the Federal Circuit Court under section 24 of the Federal Court of Australia Act.

601.          New subsection 44AAA(2) would provide that in an appeal under subsection 44AAA(1), certain provisions of sections 44, 44A and 46 apply as though references to the Federal Court of Australia were references to the Federal Circuit Court. This provides rules regarding how and when an appeal may be instituted, the jurisdiction and powers of the court in relation to an appeal, the constitution of the Tribunal if the court remits a case to be heard and determined again by the Tribunal, stay orders, and sending of documents to the court.

602.          New subsection 44AAA(3) would have the effect that for an appeal to the Federal Circuit Court under new subsection 44AAA(1), the rules made under the Federal Circuit Court Act 1999 apply rather than rules made under the Federal Court of Australia Act.

603.          New subsection 44AAA(4) would clarify that new subsection 44AAA(1) would not affect the operation of existing subsection 44(1) in relation to a child support first review proceeding. As a result, as noted above, except where a decision by the Tribunal involved a presidential member, parties would be able to choose between filing in the Federal Court or the Federal Circuit Court.

Item 130—Subsections 45(1) and (2)

604.          Item 130 would repeal existing subsections 45(1) and (2) of the AAT Act and substitute new subsections (1), (2) and (2A).

605.          Existing subsection 45(1) provides that the Tribunal may, on its own motion or at the request of a party, refer a question of law arising in a proceeding to the Federal Court. In doing so, the Tribunal must have the agreement of the President. Additionally, if the proceeding is before the Small Taxation Claims Tribunal, the interests of the applicant seeking review of the relevant tax decision must be taken into account prior to the referral.

606.          New subsection 45(1) would simplify the drafting of the provision and ensure its consistency with other amendments to the AAT Act. It would remove references to the Small Taxation Claims Tribunal as a result of the amendments made by Item 80. It would also insert a note to clarify that subsection 45(1), as a provision in Part IVA of the AAT Act, does not apply to certain migration proceedings as set out in new section 43C as inserted by Item 124.

607.          Existing subsection 45(2) provides that the Federal Court must be constituted as a Full Court to determine a question of law referred to it under existing subsection 45(1). Item 130 would separate existing subsection 45(2) into new subsections 45(2) and 45(2A).

608.          New subsection 45(2) would confer jurisdiction on the Federal Court of Australia to determine a question of law referred to it under section 45 of the AAT Act. This does not change current policy.

609.          New subsection 45(2A) would provide that if, after consultation with the President of the Tribunal, the Chief Justice of the Federal Court decides that it would be appropriate for the application to be heard by a Full Court, the jurisdiction is to be exercised by the Court constituted as a Full Court. This would change policy to allow references on questions of law to be heard by the Federal Court sitting either as a single judge or as a Full Court. This amendment would provide greater flexibility to both the Tribunal and the Federal Court of Australia and would provide a more expeditious mechanism for the Federal Court of Australia to hear and decide less complex questions of law.

Item 131—Paragraph 46(1)(a)

610.          Item 131 would insert the words ‘and are relevant to the appeal or reference’ after the words ‘appeal or reference relates’ in existing paragraph 46(1)(a) of the AAT Act.

611.          Existing paragraph 46(1)(a) provides that, when an appeal has been instituted in the Federal Court of Australia, the Tribunal shall cause all documents that were before the Tribunal in connection with the proceedings to which the appeal or reference relates to be sent to the Court.

612.          The amendments would add a relevance requirement to the provision, to make it clearer that the Tribunal is only required to provide relevant documents to the Court.

Item 132—Section 59A

613.          Item 132 would repeal existing section 59A of the AAT Act, and substitute new sections 59A and 59B.

New section 59A—Authorised members

614.          Existing section 59A allows the President to authorise a particular member to be an authorised member for the purpose of one or more specified provisions of the Act. The authorisations can be general or limited to, for example, a particular reviewable decision or decisions and reviewable decisions included in a particular class or classes of reviewable decision.

615.          New section 59A would preserve the substance of the existing provision with simplified drafting.

616.          New subsection 59A(1) would reproduce the President’s power to authorise a member, in writing, for the purposes of one or more specified provisions of the AAT Act or another enactment. This extends policy to allow the President to authorise a member for the purposes of an Act other than the AAT Act.

617.          New subsection 59A(2) would provide a general rule allowing the President to make general or limited authorisations. It is intended to enable the President to limit authorisations in any of the ways possible under existing subsection 59A(2).

618.          Existing subsection 59A(3) is not reproduced as the power to revoke an instrument made under subsection 59A(1) should be interpreted as including a power to revoke the power under subsection 33(3) of the Acts Interpretation Act.

New section 59B—Authorised officers

619.          New section 59B preserves and expands the President’s power under the AAT Act to authorise certain officers of the Tribunal to undertake specified actions under the Act with simplified drafting and greater flexibility.

620.          Existing subsection 33(4) empowers the President to authorise a Conference Registrar to give directions under paragraph 33(2)(a) with respect to a proceeding before the hearing of the proceeding commences.

621.          New subsection 59B(1) would provide a general power that allows the President to authorise officers for the purposes of particular provisions that refer to authorised officers, giving the Tribunal greater flexibility in its operations. The following provisions would confer powers on authorised officers:

·         new section 40B (leave to inspect documents produced under summons) (see Item 103), and

·         paragraph 33(2)(a) (pre-hearing directions) (as amended by Item 56).

622.          References to ‘Conference Registrar’ would no longer appear in the Act and such persons would be officers of the Tribunal for the purposes of the Act.

623.          New subsection 59B(2) would provide a general rule allowing the President to make general or limited authorisations.

Item 133—Section 60 (heading)

624.          Item 133 would repeal the heading of existing section 60 of the AAT Act (Protection of members, alternative dispute resolution practitioners, Registrars, District Registrars, Conference Registrars, barristers and witnesses), and substitute a new heading (Protection of members, alternative dispute resolution practitioners, officers of the Tribunal, barristers and witnesses).

625.          The omitted terms are no longer necessary as references to specific types of Registrar would be replaced by the concept of ‘officer of the Tribunal’ by the amendments in Item 36 of the Bill.

Item 134—Subsections 60(1B) and (1C)

626.          Item 134 would repeal existing subsections 60(1B) and (1C) of the AAT Act, and substitute a new subsection 60(1B).

627.          Existing subsection 60(1B) provides a Registrar, a District Registrar or a Deputy Registrar, in the performance of their duties, the same protection and immunity as a Justice of the High Court. These duties include:

·         section 40, in respect of procedural powers of the Tribunal, including the power to summon a person to give evidence or produce documents, and

·         section 69A, in respect of taxing costs.

628.          Existing subsection 60(1C) provides the same protection and immunity in relation to Conference Registrars when giving directions with respect to a proceeding before the hearing of the proceeding commences under existing paragraph 33(2)(a).

629.          New subsection 60(1B) would provide an officer of the Tribunal the same protection and immunity as a Justice of the High Court in the performance of the following duties:

·         subsection 29(9) (giving, or requiring the giving of, notice of an application for extension of time)

·         subsection 29AC(2) (giving, or requiring the giving of, notice of an application for review of a decision to a person whose interests may be affected by the decision)

·         paragraph 33(2)(a) (giving directions with respect to a proceeding before the hearing of the proceeding commences)

·         section 40 (procedural powers of the Tribunal, and include issuing of summons and administering an oath or affirmation)

·         section 40A (power to summon a person to give evidence or produce documents)

·         section 40B (power to give leave to a party to inspect a document or thing produced under a summons), and

·         section 69A (procedure for taxing costs).

630.          This amendment would reflect the replacement of references to specific types of Registrar with the concept of ‘officers of the Tribunal’. New subsection 60(1B) would instead provide these protections and immunities to an officer of the Tribunal in relation to the duties they may perform under the Act.

Item 135—Section 61

631.          Item 135 would repeal existing section 61 of the AAT Act, and substitute a new section 61.

632.          Existing subsection 61(1) makes it an offence to fail to comply with a summons to appear as a witness, punishable by a penalty of 30 penalty units or imprisonment for 6 months (or both). Subsection 61(2) provides a defence of reasonable excuse. Subsection 61(3) provides an offence for failure to comply with a summons to produce a book, document or thing, punishable by a penalty of 30 penalty units or imprisonment for 6 months (or both). Subsection 61(4) provides a defence of reasonable excuse.

633.          New subsection 61(1) would replace both offences with an offence of failing to comply with a summons issued by the Tribunal pursuant to section 40A, punishable by imprisonment for 12 months, 60 penalty units (or both). Subsection 61(2) would provide a defence where complying with the summons might tend to incriminate the person.

634.          The new provision would preserve the substance of both existing offences with simplified drafting, and would mirror offence provisions that would apply in the Migration Act in relation to the Migration and Refugee Division (see Item 101 of Schedule 2 to the Bill, which inserts new sections 432 and 433 into the Migration Act).

635.          Key changes in this provisions are removal of the defence of reasonable excuse, inserting a specific defence of self-incrimination, and changes to the penalty.

636.          The defence of reasonable excuse would be removed because the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers advises against the use of reasonable excuse defences, noting that such defences are vague and therefore difficult to rely on. There are also general defences in the Criminal Code (duress, mistake or ignorance of fact, intervening conduct or event, and lawful authority) which a person can rely on in place of the reasonable excuse defence.

637.          The privilege against self-incrimination applies at common law. However, for the avoidance of doubt new subsection 61(2) would insert a specific defence of self‑incrimination to the offence in new subsection 61(1). This provides certainty that the privilege would not be abrogated. The defence does not preclude or remove the powers to compel information that is not self-incriminatory from an individual. The defence also does not preclude the individual from having to provide information or produce documents that may incriminate others.

638.          The note to subsection 61(2) would state that a defendant bears an evidential burden in relation to the matter in subsection 61(2)—see subsection 13.3(3) of the Criminal Code Act 1995. Section 13.3 of the Criminal Code provides that in the case of a standard ‘evidential burden’ defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1). It is considered appropriate to cast the evidential burden on the defendant in these circumstances. The person who is compelled to provide information or produce a document will be best placed to know whether complying might tend to incriminate the person.

639.          With respect to legal professional privilege, the privilege applies at common law and has an equivalent in the Evidence Act 1995. Legal professional privilege is intended to be available.

640.          The penalty would be raised from 30 penalty units or 6 months imprisonment (or both) to 12 months imprisonment or 60 penalty units (or both). This is intended to bring the penalty for this offence into line with the penalties for other offences in the AAT Act, and would be consistent with those applying for similar offences in other Acts conferring jurisdiction on the AAT (such as the Migration Act) and the legislation establishing other courts and tribunals.

Items 136—Subsection 62(1) and Item 137—Subsection 62(1) (penalty)

641.          Item 136 would omit the words ‘is guilty of’ and substitute the words ‘commits’ in subsection 62(1) of the AAT Act.

642.          Existing subsection 62(1) makes it an offence for a person who appears as a witness before the Tribunal, and is required to take an oath or make an affirmation, to fail to comply with this requirement.

643.          The amendment in Item 135 would simplify and modernise the provision without changing policy.

644.          Item 137 would repeal the existing penalty for the offence in subsection 62(1) of 30 penalty units or imprisonment for 6 months (or both) and substitute a new penalty of imprisonment for 12 months or 60 penalty units, or both.

645.          This is intended to bring the penalty for this offence into line with the penalties for other offences in the AAT Act, and would be consistent with those applying for similar offences in other Acts conferring jurisdiction on the AAT (such as the Migration Act) and the legislation establishing other courts and tribunals.

Item 138—Subsection 62(2)

646.          Item 137 would repeal existing subsection 62(2) of the AAT Act, which provides a defence of reasonable excuse to the offence in subsection 62(1).

647.          The defence of reasonable excuse would be removed because the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers advises against the use of reasonable excuse defences, noting that such defences are vague and therefore difficult to rely on. There are also general defences in the Criminal Code (duress, mistake or ignorance of fact, intervening conduct or event, and lawful authority) which a person can rely on in place of the reasonable excuse defence.

Items 139—Subsection 62(3) and Item 140—Subsection 62(3) (penalty)

648.          Item 139 would omit the words ‘is guilty of’ and substitute the words ‘commits’ in subsection 62(3) of the AAT Act.

649.          Existing subsection 62(3) makes it an offence for a person who appears as a witness before the Tribunal, and is required by the presiding member to answer a question, to fail to answer the question.

650.          The amendment in Item 139 would simplify and modernise the provision without changing policy.

651.          Item 140 would repeal the existing penalty for the offence in subsection 62(3) of 30 penalty units or imprisonment for 6 months (or both), and substitute a new penalty of imprisonment for 12 months or 60 penalty units (or both).

652.          This is intended to bring the penalty for this offence into line with the penalties for other offences in the AAT Act, and would be consistent with those applying for similar offences in other Acts conferring jurisdiction on the AAT (such as the Migration Act) and the legislation establishing other courts and tribunals.

Item 141—Subsections 62(4) to (6)

653.          Item 141 would repeal existing subsections 62(4), (5) and (6) of the AAT Act, and substitute a new subsection 62(4).

654.          Existing subsection 62(4) provides a defence of reasonable excuse for the offence in subsection 62(3) of appearing as a witness and failing to comply with a requirement to answer a question.

655.          Item 140 would replace this defence with a defence in new subsection 62(4) where answering a question might tend to incriminate the person.

656.          The defence of reasonable excuse would be removed because the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers advises against the use of reasonable excuse defences, noting that such defences are vague and therefore difficult to rely on. There are also general defences in the Criminal Code (duress, mistake or ignorance of fact, intervening conduct or event, and lawful authority) which a person can rely on in place of the reasonable excuse defence.

657.          With respect to self-incrimination, the privilege against self-incrimination applies at common law. However, for the avoidance of doubt new subsection 62(4) would insert a specific defence of self‑incrimination to the offence in subsection 62(3). This provides certainty that the privilege would not be abrogated. The defence does not preclude or remove the power to compel an answer to a question that is not self-incriminatory from an individual. The defence also does not preclude the individual from having to answer questions that may incriminate others.

658.          The note to new subsection 62(4) would state that a defendant bears an evidential burden in relation to the matter in subsection 63(4)—see subsection 13.3(3) of the Criminal Code Act. Section 13.3 of the Criminal Code provides that in the case of a standard ‘evidential burden’ defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1). It is considered appropriate to cast the evidential burden on the defendant in these circumstances. The person who is being compelled to answer a question will be best placed to know whether complying might tend to incriminate the person.

659.          With respect to legal professional privilege, the privilege applies at common law and has an equivalent in the Evidence Act. Legal professional privilege is intended to apply.

660.          Existing subsection 62(5) makes it an offence for a person who appears as a witness before the Tribunal, and has been given a summons to produce a book, document or thing, to fail to comply with the summons. Existing subsection 62(6) provides a defence of reasonable excuse for this offence.

661.          The conduct prohibited by existing subsection 62(5) is sufficiently provided for in new subsection 61(1). The consolidation of the offences would simplify and modernise the language but retain the substance of the existing provision. Existing subsections 62(5) and (6) are therefore not reproduced.

Item 142—Section 62A and Item 143—Section 62A (penalty)

662.          Item 142 would omit the words ‘is guilty of’ and substitute the words ‘commits’ in existing section 62A of the AAT Act.

663.          Existing section 62A makes it an offence for a person to appear before the Tribunal, give evidence, and do so knowing the evidence is false or misleading.

664.          The amendment in Item 142 would simplify and modernise the provision without changing policy.

665.          Item 143 would repeal the existing penalty for the offence in section 62A of 30 penalty units or imprisonment for 6 months (or both) and substitute a new penalty of imprisonment for 12 months or 60 penalty units (or both).

666.          This is intended to bring the penalty for this offence into line with the penalties for other offences in the AAT Act, and would be consistent with those applying for similar offences in other Acts conferring jurisdiction on the AAT (such as the Migration Act) and the legislation establishing other courts and tribunals.

Item 144—Sections 63 to 65

667.          Item 144 would repeal existing sections 63, 64 and 65 of the AAT Act, and substitute new sections 62C, 63 and 64, to:

·         create a new offence of breach of a non-disclosure order (new section 62C)

·         modernise the offences for contempt of Tribunal (new section 63)

·         modernise the provision for Tribunal registries (new section 64), and

·         remove existing section 65, which provides for the powers, duties and functions of officers of the Tribunal.

668.          Existing section 65 of the AAT Act provides that, in relation to a proceeding, the officers of the Tribunal have the duties, powers and functions conferred on them by the AAT Act or the President. This provision is unnecessary and would accordingly be repealed.

New section 62C—Breach of non-disclosure order

669.          New section 62C would create a new offence for a person to engage in conduct that would contravene an order made under new subsections 35(3) or (4), or 35AA(2) of the AAT Act. New subsections 35(3) and (4) would empower the Tribunal to make non‑disclosure or non‑publication orders, to restrict or prohibit the publication or disclosure of various matters related to a proceeding, such as the names of witnesses and the content of evidence. New subsection 35AA(2) would empower the Tribunal to make non‑publication or non‑disclosure directions in respect of certain Security Division proceedings.

670.          New section 62C would also provide a penalty of imprisonment for 12 months or 60 penalty units, or both.

671.          This is intended to bring the penalty for this offence into line with the penalties for other offences in the AAT Act, and would be consistent with those applying for similar offences in other Acts conferring jurisdiction on the AAT (such as the Migration Act) and the legislation establishing other courts and tribunals.

New section 63—Contempt of Tribunal

672.          Existing section 63 contains a series of contempt of Tribunal offences for:

·         insulting a member (existing subsection 63(1))

·         interrupting proceedings (existing subsection 63(2))

·         creating a disturbance (existing subsection 63(3))

·         taking part in or creating a disturbance (existing subsection 63(4)), or

·         engaging in conduct that would be contempt if in a court of record (existing subsection 63(5)).

673.          The penalty for each offence is set at 30 penalty units or imprisonment for 6 months (or both).

674.          Item 144 would substitute a new section 63 containing two offences for contempt of Tribunal. These would:

·         prohibit conduct that obstructs or hinders the Tribunal or a member in the performance of the functions of the Tribunal (new subsection 63(1)), and

·         conduct that would, if the Tribunal were a court of record, constitute a contempt of court (new subsection 63(2)).

675.          The prohibitions in existing subsections 62(3) and (4) of creating or taking part in disturbances are adequately covered by the offences in the Court Security Act 2013 and would not be re-enacted.

676.          New section 63 would provide that the penalty for each action would be imprisonment for 12 months or 60 penalty units, or both. This is intended to bring the penalty for this offence into line with the penalties for other offences in the AAT Act, and would be consistent with those applying for similar offences in other Acts conferring jurisdiction on the AAT (such as the Migration Act) and the legislation establishing other courts and tribunals.

New section 64—Registries

677.          Existing section 64 provides that the Governor-General shall cause such Registries of the Tribunal to be established as the Governor-General sees fit, but so that at least one Registry shall be established in each State and one shall be a Principal Registry.

678.          New section 64 would provide that the Minister may establish such registries of the Tribunal as the Minister sees fit. The amendment would simplify the provision and provide the Tribunal with greater flexibility in its operations.

Item 145—Subsections 66(1) and (2)

679.          Item 145 would repeal subsections 66(1) and (2) of the AAT Act and substitute new subsections 66(1) and (2).

680.          Existing section 66 sets out circumstances in which confidential information or documents cannot be disclosed to a court.

681.          Existing subsection 66(1) provides that current and former members and officers of the Tribunal are not competent and cannot be required to give evidence to a court where:

·         to do so would be contrary to a non-disclosure order under subsection 35(2)

·         an application has been made for a non-disclosure order under subsection 35(2) and has not yet been determined, or

·         an Attorney-General’s public interest certificate is in force under sections 36 or 36B and the Tribunal has restricted access to the relevant information from the parties.

682.          Existing subsection 66(2) similarly provides that current and former members and officers of the Tribunal cannot be required to produce certain types of documents in a court where:

·         to do so would be contrary to a non-disclosure order under subsection 35(2)

·         an application has been made for a non-disclosure order under subsection 35(2) and has not yet been determined, or

·         an Attorney-General’s public interest certificate is in force under sections 36 or 36B and the Tribunal has restricted access to the relevant information from the parties.

683.          ‘Court’ is defined in for the purposes of these provisions in existing subsection 66(4) to include any tribunal, authority or person having power to require the production of documents or the answering of questions.

684.          New subsection 66(1) would provide a similar protection as existing subsections 66(1) and (2) to current and former members from producing protected information to a court. However, the definition of ‘protected information’ that would be provided by subsection 66(4) (inserted by Item 146) expands the categories of protected information to any information concerning a person that was obtained by an entrusted person in the course of the entrusted person’s duties. This reflects the broader scope of protection provided for persons with functions, duties or powers in the MRT‑RRT and SSAT under existing sections 377 and 439 of the Migration Act and clause 19 of Schedule 3 to the SSA Act.

685.          New subsection 66(2) would provide that an entrusted person must not be required to disclose protected information or documents to a parliament where the document or information relates to a Part 7-reviewable decision, within the meaning of the Migration Act, and the production or disclosure is not necessary for the purposes of carrying into effect the provisions of this Act of another enactment conferring powers on the Tribunal. This reproduces the protection in existing subsection 439(5) of the Migration Act, which protects the privacy and safety of applicants for protection visas.

Item 146—Subsection 66(4)

686.          Item 146 would insert new definitions of ‘entrusted person’, ‘parliament’ and ‘protected’ into subsection 66(4) of the AAT Act for the purposes of the protections in section 66:

·         ‘Entrusted person’ would be defined as a person who is, or has been, a member, an officer or staff member of the Tribunal or someone engaged by the Tribunal to provide services to the Tribunal during a proceedings before the Tribunal. This would extend the scope of the protections in section 66 to staff of the Tribunal, and persons who are who have been engaged to provide services to the Tribunal during a proceeding. This extended scope is consistent with protections in existing sections 377 and 439 of the Migration Act and existing clause 19 of Schedule 3 to the SSA Act.

·         ‘Parliament’ would be defined to mean a House of Parliament of the Commonwealth, or of a State or of a Territory, or a committee of a House or Houses of Parliament of the Commonwealth, of State or of a Territory.

·         ‘Protected’ would be defined to mean, in context, that a document or information is protected if it concerns a person and was obtained by an entrusted person in the course of the entrusted person’s duties.

687.          The additional definitions are consistent with existing provisions of the Migration Act and the SSA Act and provide clearer drafting.

Item 147—After section 66A

688.          Item 147 would insert new section 66B into the AAT Act, which would provide for the Tribunal to publish, by any means necessary, its decisions and reasons for decisions. An exception applies to the publication of information, the disclosure of which is prohibited or restricted by or under the Act or any other enactment conferring the Tribunal with jurisdiction.

689.          There is no existing legislative requirement for the AAT to publish decisions, although the MRT and RRT are required to publish certain decisions. The amendment made by Item 146 would remedy that anomaly, by expressly providing that the tribunal may publish its decision, subject to statutory restrictions on disclosure.

Item 148—Section 67

690.          Item 148 would repeal existing section 67 of the AAT Act and substitute a new section.

691.          Existing section 67 provides an entitlement to fees and allowances for expenses in respect of compliance with a summons, as set by Regulations, to be paid by the party requesting the summons or, in any other case or at the discretion of the Tribunal, by the Commonwealth. Similar provisions exist in sections 374 and 436 of the Migration Act, clause 22 of Schedule 3 to the SSA Act, subsections 244(5) and (6) of the PPL Act, and subsection 103K(4) of the CSRC Act.

692.          New subsection 67 would provide a more general provision applicable across the amalgamated Tribunal that fees and allowances for complying with a requirement to give evidence, or produce a document or give information under a prescribed provision of the AAT Act or an Act conferring jurisdiction on the Tribunal, are payable to a person in accordance with details prescribed in the Regulations which may limit or prohibit entirely the payment of fees in certain circumstances.

693.          The amendment would harmonise, and centralise, provisions about fees and allowances. It would also assist to preserve, where necessary, the unique characteristics of the migration and social security jurisdictions with respect to fees and allowances for expenses in Regulations.

Item 149—Sections 68 and 68AA

694.          Item 149 would repeal existing sections 68 and 68AA of the AAT Act, and substitute new sections 68 and 68AA.

New section 68—Giving documents

695.          Existing section 68 provides that any document that is required to be lodged must be lodged with a Registry and that, subject to requirements prescribed in Regulations, documents may be lodged electronically. Existing section 68AA details when a document, statement, notice or other notification is taken to have been given to a person.

696.          New section 68 replaces both sections and would provide that Regulations may prescribe the manner in which a document or thing required or permitted to be provided must be lodged with or given to the Tribunal or given to a person, for the purposes of a proceeding (new paragraphs 68(1)(a) and 68(2)(a)). If the Regulations do not make a relevant prescription, Presidential practice directions can set out how this may be done (new paragraphs 68(1)(b) and 68(2)(b)). An exception applies if another Act or enactment specifies how a document or thing is to be lodged with or given to the Tribunal or given to a person (new subsection 68(3)).

697.          The exception in subsection 68(3) would be particularly relevant in the Migration and Refugee Division, as procedures for giving and lodging documents would be set out in the Migration Act.

698.          The amendment would allow for all aspects of how a document may be lodged or given to the Tribunal or given to a person to be set out in Regulations or directions, rather than specified in part in the Act and in part in Regulations as is currently the case. It would allow for sufficient flexibility to reconsider these procedures if appropriate. It would also allow for appropriate exclusions, where required.

New section 68AA—President’s directions

699.          New section 68AA would provide that if the President gives a direction that, under the AAT Act, must be written, failing to do so in writing does not invalidate anything done in accordance with or otherwise in relation to or as a consequence of the direction.

700.          This provision is intended to prevent minor technical flaws being used to overturn Tribunal decisions.

Item 150—Section 68A, and Item 151—At the end of section 68A

701.          Item 150 would number existing section 68A of the AAT Act as subsection 68A(1) to reflect the insertion of a new subsection 68A(2) by Item 151.

702.          Item 151 would insert a new subsection 68A(2) of the AAT Act, which would provide that subsection 68A(1), as numbered by Item 150, does not apply in relation to a proceeding in the Migration and Refugee Division.

703.          Existing section 68A provides that if the time period for an action under the Act, another Act, or a Tribunal direction, in relation to a proceeding is less than 7 days, any day on which the Registry in which the application was lodged is closed is not counted in calculating the end of the time period.

704.          This approach recognises that specific procedures relating to time periods currently apply to matters determined by the MRT and RRT under the codes of procedure in the Migration Act.

Item 152—At the end of section 69

705.          Item 152 would create new subsection 69(3) of the AAT Act.

706.          Existing section 69 provides that a person who is a party to a proceeding or proposes to institute a proceeding in the Tribunal or a court in relation to matters under the AAT Act may apply to the Attorney-General for assistance. The Attorney-General may authorise the provision of legal or financial assistance by the Commonwealth to the person if the Attorney‑General is satisfied that refusing to do so would involve hardship to that person and that it is reasonable in all circumstances to grant the assistance.

707.          New subsection 69(3) would exclude the operation of section 69 for applications for review of a decision, or proceeding, in the Migration and Refugee Division or the Social Services and Child Support Division.

708.          The amendment would reflect that such assistance is not currently available in relation to SSAT, MRT and RRT proceedings.

Item 153—Section 69A

709.          Item 153 would repeal section 69A of the AAT Act and substitute a new provision.

710.          Existing section 69A deals with the procedure for taxing costs if the Tribunal makes a costs order and the parties cannot agree on the amount of the costs. Existing subsection 69A(1) provides that the President may give directions for costs to be taxed or settled by the Tribunal, or to be taxed by the Registrar, a District Registrar or a Deputy Registrar.

711.          New section 69A would retain the substance of the provision but removes references to the President giving directions and references to ‘the Registrar, a District Registrar or a Deputy Registrar’, substituting a reference to ‘an officer of the Tribunal’.

712.          The amendment would reflect that references to specific types of Registrar are no longer necessary as they would be replaced by references to ‘officer of the Tribunal’ (see new section 24PA inserted by Item 35.

Item 154—Section 69B (heading)

713.          Item 154 would repeal the heading of section 69B of the AAT Act (Costs in certain proceedings in Security Appeals Division), and substitute a new heading (Costs in Security Division review of security assessment).

714.          This amendment would reflect the change in Division name from Security Appeals Division to Security Division and the type of proceedings in relation to which a costs order may be made under this section.

Item 155—After section 69B

715.          Item 155 would insert a new section 69BA into the AAT Act.

716.          At present, the Tribunal can only exercise its dismissal powers under sections 42A and 42B in relation to applications for a review of a decision.

717.          New section 69BA would allow the Tribunal to exercise dismissal powers under sections 42A and 42B (except subsection 42A(4)) for most types of proceedings, including applications for an extension of time to lodge an application, applications to stay the operation of the decision under review, or applications for a confidentiality order.

718.          Section 42A and 42B would not apply to proceedings in the Migration and Refugee Division. In accordance with new section 24Z (which would be inserted by Item 38) most provisions of Part IV of the AAT Act would not apply to proceedings in the Migration and Refugee Division.

Items 156—Section 69C, and Item 157—At the end of section 69C

719.          Item 156 would number existing section 69C of the AAT Act as subsection 68C(1) to reflect the insertion of a new subsection 69C(2) by Item 157.

720.          Existing 69C provides that the Tribunal may dismiss an application if a fee payable in accordance with the AAT Regulations is not paid by the time specified in the Regulations.

721.          Item 157 inserts a new subsection 69C(2) into the AAT Act to exclude the operation of existing section 69C for applications for review of a decision, or proceeding, in the Migration and Refugee Division.

722.          The amendment would reflect that matters relating to fees for applications in the Migration Review Tribunal and Refugee Review Tribunal are dealt with under the provisions of the migration law


Schedule 2—Migration amendments

Overview

723.          Schedule 2 to the Bill would amend the Migration Act to support amalgamation.

724.          Key changes include:

·         removal of redundant organisation and establishment provisions where equivalent provisions in the AAT Act will apply

·         replacement of references to the former MRT or RRT with references to the amalgamated Tribunal

·         amendments to preserve a distinction between the AAT exercising its newly-conferred jurisdiction in the Migration and Refugee Division, and the AAT exercising its existing migration jurisdiction where necessary to continue existing operational and procedural requirements, and

·         amendments to retain the current scope and effect of provisions relating to the judicial review of migration decisions.

725.          The schedule will also provide contingent amendments to support the amalgamation in the event that all or any of the following bills are enacted:

·         the Migration Amendment (Protection and Other Measures) Bill 2014

·         the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014

·         the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Bill 2014, and

·         the Migration Amendment (Character and General Visa Cancellation) Bill 2014.

Part 1—Main amendments

Amendments to the Migration Act 1958

Item 1—Subsection 5(1)

726.          Item 1 would insert a new defined term ‘AAT Act migration decision’ in section 5(1) of the Migration Act. This term would mean a decision that is referred to in proposed new section 474A of the Migration Act.

727.          The new term would encompass certain types of decisions that are currently made by, or in relation to, the MRT or RRT under the Migration Act which would be made by, or in relation to, the Migration and Refugee Division under the AAT Act post amalgamation.

728.          The purpose of this amendment is to support the creation of a mechanism for identifying decisions that are currently covered by the provisions in the Migration Act dealing with ‘non privative clause’ decisions. This mechanism would be used to ensure that existing judicial review provisions would continue to apply to certain decisions that are currently made under the Migration Act that would in future be made under the AAT Act, as those decisions will technically no longer fall within the definition of ‘non privative clause decisions’.

Item 2—Subsection 5(1) (at the end of the definition of migration decision)

729.          Item 2 would insert into the definition of ‘migration decision’ new paragraph (d), which would refer to an AAT Act migration decision.

730.          The effect of this amendment would be to avoid doubt that those decisions made by, or in relation to, the MRT and RRT previously designated as non-privative clause decisions under section 474(6) and therefore migration decisions, would remain migration decisions when made by, or in relation to, the amalgamated Tribunal. This would preserve the effect of existing provisions in the Migration Act relating to judicial review of those decisions.

Items 3–7—Subsection 5(1) (definition of Migration Review Tribunal), Subsection 5(1), Subsection 5(1) (definition of Refugee Review Tribunal), Subsection 5(1) (definition of RRT-reviewable decision)

731.          Items 3 to 7 would repeal terms defined in subsection 5(1) that would not be required in relation to the amalgamated Tribunal, and insert new defined terms where necessary.

732.          Items 3, 6 and 7 would repeal defined terms ‘Migration Review Tribunal’, ‘Refugee Review Tribunal’ and ‘RRT-reviewable decision’ respectively from subsection 5(1). These definitions are no longer needed as a consequence of the amalgamation.

733.          Items 4 and 5 would insert new defined terms ‘Part 5‑reviewable decision’ and ‘Part 7-reviewable decision’. These terms would be needed to identify matters that are governed by procedural rules in either Part 5 or Part 7 of the Migration Act.

Item 8—Subsection 5(1)

734.          Item 8 would insert a new defined term ‘Tribunal’, which would mean the AAT.

Item 9—Paragraphs 5(9A)(a) to (d)

735.          Item 9 would repeal paragraphs in subsection 5(9A) that refer to certain decisions that are made on review by the MRT or RRT and substitute new paragraphs that refer to Part 5‑reviewable decisions or Part 7‑reviewable decisions.

736.          Subsection 5(9A) deals with when certain applications are finally determined. The purpose of this item is to preserve the effect of section 5(9A).

Item 10—Paragraphs 5(9B)(a) and (b)

737.          Subsection 5(9B) excludes certain decisions from the effect of section 5(9A) relating to when certain applications are finally determined.

738.          Item 10 would repeal paragraphs that refer to certain decisions that are made on review by the MRT or RRT and substitute paragraphs that refer to Part 5‑reviewable decisions or Part 7-reviewable decisions.

739.          This purpose of this item is to preserve the effect of existing section 5(9B).

Item 11—Subsection 5(9B) (note)

740.          Item 11 would repeal the note under subsection 5(9B) that explains that decisions referred to in subsection 5(9B) are for the remission of some matters by the relevant Tribunal, as the note is not necessary.

Item 12—Paragraph 91G(2)(a)

741.          Item 12 would omit references to the MRT and the RRT in paragraph 91G(2)(a). These references would not be required as a consequence of the amalgamation.

Item 13—Section 99

742.          Item 13 would omit the words ‘or a person or Tribunal’ in section 99 and substitute the words ‘, a person or the Tribunal’.

743.          This amendment is consequential to the establishment of the AAT as the only merits review tribunal for migration matters.

Item 14—Section 103

744.          Item 14 would omit the words ‘a Tribunal’ in section 103 and substitute the words ‘the Tribunal’.

745.          This amendment is consequential to the establishment of the AAT as the only merits review tribunal for migration matters.

Item 15—Subsection 114(1)

746.          Item 15 would omit the words ‘the Administrative Appeals Tribunal, the Migration Review Tribunal or the Refugee Tribunal’ from subsection 114(1) of the Migration Act and substitutes the words ‘or the Administrative Appeals Tribunal’.

747.          Existing subsection 114(1) provides that if the Federal Court, Federal Circuit Court, Administrative Appeals Tribunal, MRT or RRT set aside a decision under s109 of the Migration Act to cancel a visa, the visa is taken never to have been cancelled.

748.          This amendment would repeal redundant references to the MRT and the RRT.

Item 16—Paragraph 178(2)(b)

749.          Item 16 would omit the words ‘sections 391, 417 or 454’ from paragraph 178(2)(b) and substitute the words ‘or 417’.

750.          Paragraph 178(2)(b) provides that a designated person is to be released from immigration detention if granted a visa under sections 65, 351, 391, 417 or 454 of the Migration Act. Sections 391 and 454 allow the Minister to substitute for an AAT decision about an MRT-reviewable decision or RRT-reviewable decision that was referred to the AAT, a more favourable decision. These sections are no longer necessary as a consequence of the amalgamation of the tribunals.

751.          This amendment would remove references to visas granted under sections 391 and 454 of the Migration Act as a consequence of the repeal of these sections.

Item 17—Subsection 261AKD(2) (paragraph (c) of the definition of permitted provision)

752.          Item 17 would omit ‘or tribunal’ in subsection 261AKD(2) and substitute ‘the Tribunal or another tribunal’.

753.          Section 261AKD provides that it is an offence to cause a video recording to be provided to another person if it is not a permitted provision of the recording. A permitted provision includes provision of a recording for the purpose of a proceeding before a tribunal.

754.          The purpose of this amendment is to substitute reference to the amalgamated Tribunal, to clarify that the provision of a recording for the purpose of a proceeding before the Tribunal or another tribunal is permitted.

Item 18—Subsection 271(4) (definition of migration proceedings)

755.          Subsection 271(4) defines ‘migration proceedings’ for the purposes of section 271.

756.          Item 18 would repeal the existing definition of ‘migration proceedings’ in subsection 271(4) and substitute a new definition that removes redundant references to the MRT and MRT, but retains reference to the Tribunal.

757.          The existing definition of migration proceedings includes certain court proceedings. The new definition would include those same proceedings. That is, proceedings under the Migration Act or relating to an offence against that Act.

758.          This item would also replicate an existing note that cross-references the definition of ‘offence against this Act’ in section 5(1) of the Migration Act.

Item 19—Section 275 (paragraph (a) of the definition of review authority

759.          Item 19 would omit the words ‘Migration Review Tribunal’ in the definition of ‘review authority’ and substitute ‘the Tribunal in reviewing a Part 5-reviewable decision’.

760.          The amendment would be necessary to remove reference to the MRT as a consequence of the amalgamation.

Item 20—Section 275 (paragraph (b) of the definition of review authority

761.          Item 20 would omit the words ‘Refugee Review Tribunal’ in the definition of ‘review authority’ and substitute ‘the Tribunal in reviewing a Part 7-reviewable decision’.

762.          The amendment would be necessary to remove reference to the RRT as a consequence of the amalgamation.

Item 21—Paragraph 276(2A)(a)

763.          Item 21 would remove reference to sections 391 and 454 of the Migration Act from paragraph 276(2A)(a).

764.          Paragraph 276(2A)(a) establishes when a person is taken to be giving immigration assistance in relation to requests for the Minister to exercise his or her power under section 351, 391, 417, 454 or 501J.

765.          Sections 391 and 454 would become redundant as a consequence of the amalgamation. The purpose of this amendment is to remove reference to assistance for requests for the exercise of powers under sections 391 and 454, as a consequence of the repeal of these sections.

Item 22—Subsection 277(4)

766.          Item 22 would remove reference to sections 391 and 454 of the Migration Act from subsection 277(4) and substitutes ‘417’.

767.          Subsection 277(4) sets out when a lawyer is not taken to be giving immigration legal assistance about for the Minister to exercise his or her power under section 351, 391, 417, 454 or 501J.

768.          Sections 391 and 454 would become redundant as a consequence of the amalgamation. The purpose of this amendment is to remove reference to assistance in relation to requests for the exercise of powers under sections 391 and 454 of the Migration Act as a consequence of the repeal of these sections.

Item 23—Paragraph 282(4)(e)

769.          Item 23 would remove reference to sections 391 and 454 of the Migration Act from paragraph 282(4)(e).

770.          Subsection 282(4)(e) sets out when a person is taken to have made immigration representations in relation to requests for the Minister to exercise his or her power under section 351, 391, 417, 454 or 501J.

771.          The purpose of this amendment is to remove reference to immigration representations in relation to requests for the exercise of powers under sections 391 and 454 of the Migration Act as a consequence of the repeal of those sections.

Item 24—Paragraph 336E(2)(f)

772.          Item 24 would omit ‘or tribunal’ from paragraph 336E(2)(f) and substitute ‘the Tribunal or another tribunal’.

773.          Existing section 336E provides that it is an offence to disclose identifying information where the disclosure is not a permitted disclosure.

774.          The purpose of this amendment is to clarify that the disclosure of identifying information for the purpose of a proceeding before the amalgamated Tribunal or another tribunal is permitted.

Item 25—Part 5 (heading)

775.          Item 25 omits the heading ‘Part 5—Review of Decisions’ and replaces it with ‘Review of Part-5 Reviewable decisions’.

776.          The amendment would insert a heading that makes it clear that the Part applies only to the review of Part 5-reviewable decisions.

Item 26—Before section 337

777.          Item 26 would insert new sections 336M and 336N.

778.          New section 336M would contain a simplified outline that sets out in general terms the avenues of merits review under the Migration Act.

779.          New section 336N would provide that Part 5 of the Migration Act applies to the review by the Tribunal of Part 5‑reviewable decisions, and that the Tribunal’s powers in relation to Part 5-reviewable decisions may be exercised in the Migration and Refugee Division only.

Item 27—Section 337

780.          Item 27 would repeal the definitions of ‘Deputy Principal Member’ and ‘MRT-reviewable decision’, as these definitions would be redundant in relation to the amalgamated Tribunal.

Item 28—Section 337

781.          Item 28 would insert new definitions of ‘officer of the Tribunal’ and ‘Part 5-reviewable decision’.

782.          ‘Officer of the Tribunal’ would be defined to have the same meaning as in the AAT Act. Item 9 of Schedule 1 of the Bill would amend the definition in that Act to mean the Registrar or a person appointed as an officer under that Act.

783.          Part 5-reviewable decision’ would be defined by reference to section 338 of the Migration Act, which sets out those decisions that are currently reviewable by the MRT. Existing section 338 would be also amended to substitute references to the MRT with references to Part 5‑reviewable decisions.

Item 29—Section 337

784.          Item 29 would repeal the definitions of ‘presiding member’, ‘Principal Member’, ‘Senior Member’ and ‘Tribunal’ in section 337. The definitions are not required in the Migration Act as a consequence of the amalgamation.

785.          The amalgamated Tribunal would not have a Principal Member.

786.          The definition of ‘presiding member’ is no longer necessary because the meaning of the term is clear.

787.          Senior members would be dealt with in provisions of the AAT Act rather than the Migration Act.

788.          Section 337 currently defines ‘Tribunal’ to mean the MRT for the purposes of Part 5 of the Migration Act. This definition would not be required post amalgamation.

Item 30—At the end of section 337

789.          Item 30 would insert a note that ‘Tribunal’ for the purposes of Part 5 means the AAT, and would provide a cross-reference to the definition of Tribunal in subsection 5(1) of the Migration Act.

Item 31—Division 2 of Part 5 (heading)

790.          Item 31 would repeal a heading that refers to the MRT and replace it with the heading ‘Division 2—Part 5-reviewable decisions’, to reflect the amalgamated Tribunal.

Item 32—Section 338 (heading)

791.          Item 32 repeals the heading ‘Review of Decisions’ and substitutes ‘Definition of Part 5‑reviewable decisions’.

Item 33—At the end of section 339

792.          Item 33 would insert a note to section 339 that explains that if the Minister issues a conclusive certificate under section 339 in relation to a decision on the basis that it would be contrary to the national interest for a decision to be changed or reviewed, then the decision is not reviewable under Part 5 of the Migration Act.

Items 34–38—Division 3 of Part 5 (heading), Section 347 (heading), Section 348 (heading), Section 349 (heading), Section 352 (heading)

793.          Items 34 to 38 would repeal headings for Division 3 of Part 5 and sections 347 to 349 and section 352 that refer to the former MRT. The items would replace them with headings that refer to decisions reviewable under Part 5 by the amalgamated Tribunal.

Item 39—Subsection 352(1)

794.          Item 39 would omit reference to the MRT in subsection 352(1) and substitute a reference to the amalgamated Tribunal.

Item 40—Subsection 352(3)

795.          Item 40 would omit reference to ‘an MRT-reviewable decision’ and insert the descriptor ‘certain bridging visa decisions’ to give a broad indication of the type of decisions that are covered in the cross-reference to section 338(4).

Item 41—Division 4 of Part 5 (heading)

796.          Item 41 would replace the heading ‘Exercise of Tribunal’s power’ with a heading that refers to the powers of the amalgamated Tribunal in relation to decisions reviewable under Part 5 of the Migration Act.

Item 42—Subsection 353(1)

797.          Item 42 would repeal subsection 353(1), which provides the objective of the MRT. The objective of the amalgamated Tribunal would instead be set out in proposed new section 2A of the AAT Act. Proposed new section 2A of that Act (inserted by Item 1 of Schedule 1 to the Bill) would incorporate all of the matters in subsection 353(1) of the Migration Act.

Items 43 and 44 Subsection 353(2)

798.          Items 43 and 44 would re-number subsection 353(2) as a consequence of the repeal of subsection 353(1) and clarify that the principles set out in the section apply to decisions that are reviewed by the amalgamated Tribunal under Part 5 of the Migration Act. These principles are that the Tribunal is not bound by technicalities, legal forms or rules of evidence, and shall act according to substantial justice and the merits of the case.

Item 45—Sections 353A, 354, 355, 355A, 356 and 357

799.          Item 45 would repeal sections 353A, 354, 355, 355A, 356 and 357. These sections are not required for the amalgamated Tribunal because there are equivalent provisions in the AAT Act that would apply to decisions reviewed by the amalgamated Tribunal under Part 5 of the Migration Act.

800.          The current provisions deal with the power of the Principal Member to give directions, the constitution and reconstitution of the Tribunal, the resolution of disagreements between members, and the presiding member in relation to a review. These issues would be dealt with in new sections 18B, 19A, 19B, 19D and 42 of the AAT Act (inserted by items 27 and 107 of Schedule 1).

Item 46—Division 5 of Part 5 (heading)

801.          Item 46 would replace the heading ‘Conduct of review’ with a heading that makes clear that the division only applies to decisions reviewable by the amalgamated Tribunal under Part 5 of the Migration Act.

Item 47—At the end of subsection 361(4)

802.          Subsection 361(4) provides that the section does not apply to decisions covered by subsection 338(4). Item 47 would insert the descriptor ‘certain bridging visa decisions’ after the cross-reference to subsection 338(4), as these words give a broad indication of the types of decisions that are covered in that subsection.

Item 48—Section 362 (heading)

803.          Item 48 would repeal the current heading for section 362, ‘Applicant may request Tribunal to call witnesses’, and substitute the heading ‘Certain bridging visa decisions—request to call witnesses’. The new heading would provide a broad description of the scope of the provision, which only applies to certain bridging visa decisions.

Item 49—Paragraph 363(1)(c)

804.          Item 49 would omit reference to section 377, which is to be repealed because the issues it covers are to be covered instead by section 66 of the AAT Act (Items 145 and 146 of Schedule 1 of the Bill).

Item 50—Paragraph 363(2)

805.          Item 50 would omit the words ‘reviewable decisions’ and substitute ‘Part 5‑reviewable decisions’.

806.          The amendment would make clear that the provision applies to decisions reviewed under Part 5 of the Migration Act by the Migration and Refugee Division of the amalgamated Tribunal.

Item 51—Subsection 363(3)

807.          Item 51 would remove the term ‘presiding member’ and replace it with references to the Tribunal, for the purpose of simplification and consistency with Part 7 of the Migration Act.

Item 52—Paragraph 363(3)(b)

808.          Item 52 would omit the words ‘such documents as are’ and substitute the words ‘the documents or things’ to clarify that the Tribunal’s power to summons documents for the purposes of a review under Part 5 of the Migration Act includes the power to summons things referred to in the summons.

Item 53—Subsection 363(4)

809.          Item 53 would remove the words ‘presiding member shall not’ and substitute words ‘Tribunal must not’ to modernise the language of the provision. The amendment is not intended to change the effect of subsection 363(4).

Item 54—Subsection 363(5)

810.          Item 54 would repeal subsection 363(5), which currently provides that the oath or affirmation to be taken or made by a person for the purposes of section 363 is an oath or affirmation that the evidence that the person gives will be true.

811.          The reason for repealing the subsection is that is not necessary to prescribe the content of an oath or affirmation in legislation. Rather, this is a matter that can be dealt with administratively by the Tribunal.

Item 55—Section 364

812.          Section 364 deals with the power of the Tribunal to take evidence, including the power to authorise a person to take evidence on behalf of the Tribunal. The provision also provides that a person may take evidence inside or outside Australia, and sets out the obligations of a person to make a record of the evidence taken.

813.          Item 55 would repeal the current section and replace it with a provision worded in a way that is better aligned with the equivalent provisions in new subsections 40(3) to (5) of the AAT Act (inserted by Item 102, Schedule 1 of the Bill).

814.          The new provision would continue to require that a person who takes evidence on behalf of the Tribunal must provide a record of the evidence to the Tribunal, but would no longer expressly require that this be a written record. This would enable the person taking the record to provide to the Tribunal either a written, video or audio record of the evidence. This change would enable the Tribunal to utilise technological developments to enhance efficiency.

Item 56—Section 367 (heading)

815.          Item 56 would replace the existing heading for section 367 ‘Certain decisions to be made within prescribed period’ to provide a descriptor that makes clear that the section relates to certain bridging visa decisions.

Item 57—Subsection 367(1)

816.          Item 57 would omit references to the MRT in subsection 367(1) and insert the words ‘certain bridging visa decisions’ to provide a broad description of the subject matter of subsection 338(4), which is cross referenced in the provision.

Item 58—Division 6 of Part 5 (heading)

817.          Item 58 would replace the existing heading ‘Decisions of Tribunal’ with a heading that makes clear that the Division only applies to decisions reviewable by the amalgamated Tribunal under Part 5 of the Migration Act.

Item 59—Section 369

818.          Item 59 would repeal section 369.

819.          Section 369 provides that the Registrar of the MRT must publish MRT decisions that the Principal Member thinks are of particular interest, subject to the power in section 378 to limit publication if it is in the public interest to do so. This section is not required because the issue of publication would be dealt with in new section 66B of the AAT Act (inserted by Item 147 of Schedule 1 to the Bill).

Item 60—Division 7 of Part 5

820.          Item 60 would repeal Division 7 of Part 5 and substitute a new Division 7.

821.          Division 7 of Part 5 establishes certain offences relating to MRT proceedings. These comprise failure of a witness to attend or provide documents as required by a summons, refusal to be sworn or answer questions when appearing before the Tribunal, and contempt of Tribunal.

822.          New section 370 in Division 7 would establish the offence of failure to comply with a summons issued under section 363. The new section would harmonise the drafting of the existing offence provisions relating to failure of a person to attend or produce documents—currently contained in section 370 and subsection 371(2)—with the summons offence in the AAT Act. The amendment would simplify and modernise the language but retain the substance of the existing elements of the offence.

823.          New section 371 would establish the offence of refusal to be sworn or answer questions. The new section would replace the current offence provision in section 371. The amendment would simplify and modernise the language but retain the substance of the existing elements of the offence.

824.          The amendments would also:

·         repeal the existing penalty for failure to comply with a summons or be sworn and answer questions and substitute a new penalty, and

·         remove the defence of reasonable excuse for the offence.

825.          Existing subsection 370(1) and section 371 provide a penalty of imprisonment for 6 months, or both.

826.          The new subsection 370(1) and section 371 would provide a penalty of imprisonment for 12 months or 60 penalty units, or both. This would be part of a change to create consistent penalty provisions throughout the AAT Act and the provisions of the Migration Act relating to the Tribunal, as well as aligning penalties with those that apply in courts.

827.          Existing subsections 370(1A) and 371(1A) provide that the offence provisions do not apply if the person has a reasonable excuse. This item would remove the defence of reasonable excuse, consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, which advises against the use of reasonable excuse defences. The rationale is that such defences are vague and therefore difficult to rely on, because it is unclear what needs to be established. There are also general defences in the Criminal Code (duress, mistake or ignorance of fact, intervening conduct or event, and lawful authority) which a person can rely on in place of the reasonable excuse defence.

828.          While the privilege against self-incrimination applies in common law, for the avoidance of doubt, new subsections 370(2) and 371(3) would insert a specific defence of self-incrimination to the offences in subsection 370(1) and section 371. This provides certainty that the privilege would not be abrogated. The defence does not preclude or remove the powers to compel information that is not self-incriminatory from an individual. The defence also does not preclude the individual from having to provide information or produce documents that may incriminate others.

829.          New notes to subsections 370(2) and 371(3) would state that a defendant bears an evidential burden in relation to establishing the matters in subsections 370(2) and 371(3) —see subsection 13.3(3) of the Criminal Code Act. Section 13.3 of the Criminal Code provides that in the case of a standard ‘evidential burden’ defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1). It is considered appropriate to cast the evidential burden on the defendant in these circumstances. The person who is being compelled to provide information or produce a document will be best placed to know whether complying might tend to incriminate the person.

830.          It is noted also that legal professional privilege applies in common law and has an equivalent in the Evidence Act. As no express abrogation is applied to this provision, legal professional privilege is intended to apply.

831.          Existing section 372 establishes the offence of contempt of Tribunal. It would not be necessary to re-instate a provision to this effect in the Migration Act for the amalgamated Tribunal, because its effect would be preserved by new section 63 of the AAT Act inserted by Item 144 of Schedule 1 of the Bill.

Item 61—Division 8 of Part 5 (heading)

832.          Item 61 would repeal the existing heading of Division 8 of Part 5, ‘Miscellaneous’, and substitute a heading that indicates that the Division applies to Part 5-reviewable decisions.

Item 62—Sections 373, 374, 377 and 379

833.          Item 62 would repeal sections 373, 374, 377 and 379.

834.          Section 373 provides protections and immunities for members, witnesses and persons appearing before the MRT. This section would no longer be required because equivalent protections in relation to reviews by the amalgamated Tribunal would be provided by section 60 of the AAT Act (as amended by Item 134 of Schedule 1 to the Bill).

835.          Section 374 provides for the payment of fees and allowances to persons, other than the applicant, summoned to appear before the Tribunal. This section is not required because such payments in relation to reviews by the amalgamated Tribunal will be provided for by section 67 of the AAT Act (Item 148, Schedule 1 of the Bill).

836.          Section 377 establishes an offence for the disclosure of confidential information by a person who is or has been a member, acting member, officer or interpreter for the MRT. This section is not required because protections against the disclosure of confidential information in relation to reviews by the amalgamated Tribunal to a court (which is defined by the AAT Act to mean any tribunal, authority or person having power to require the production of documents and the answering of questions) would be provided for in section 66 of the AAT Act.

837.          Section 379 is comprised of two subsections. Subsection 379(1) provides that the Tribunal may sit from time to time as required at such places in Australia as are convenient. This subsection is not required because new section 18C of the AAT Act (Item 27 of Schedule 1 of the Bill) would provide for the Tribunal to sit as required at any place in Australia or an external territory as are convenient.

838.          Subsection 379(2) provides that the Tribunal constituted by one member or other members may sit and exercise the powers of the Tribunal even though the Tribunal constituted by another member or members is at the same time sitting and exercising powers. There is no need for an express provision stating this established principle.

Item 63—Division 8A of Part 5 (heading)

839.          Item 63 would repeal the existing heading of Division 8A of Part 5, ‘Giving and receiving review documents etc.’, and substitute a heading that indicates that the Division applies to Part 5-reviewable decisions.

Item 64—Section 379E

840.          Item 64 would repeal section 379E.

841.          Section 379E provides that if the Tribunal is required to give a document to a person, the Tribunal may give a copy of the document by the same means as the Tribunal could give the document itself.

842.          This principle does not need to be expressly stated in the legislation. It is uncontroversial that copies of documents may be provided in such circumstances.

Items 65–67—Section 379F(1), Paragraph 379F(1)(b), Subsection 379F(2)

843.          Items 65 to 67 would make consequential amendments to section 379F, to reflect the repeal of section 353A of the Migration Act due to a similar provision in new section 18B of the AAT Act (Item 27, Schedule 1 of the Bill).

844.          Paragraph 379F(1)(b) enables a person to comply with a requirement to give a document or thing to the Tribunal by complying with directions issued by the Principal Member under section 353A. For the amalgamated Tribunal, such directions would be issued pursuant to new section 18B (Item 27 of Schedule 1 of the Bill). Item 66 would therefore substitute reference to section 353A with reference to new section 18B of the AAT Act.

845.          Subsection 379F(2) provides that directions under section 353A may provide for a person to give a copy of a document rather than the document itself. Item 67 would repeal subsection 279F(2), because it both relates to a repealed provision and is otherwise unnecessary.

846.          Item 65 would omit the numbering ‘(1)’ in section 379F as a consequence of the repeal of the only other subsection in that section.

Item 68—Division 9 of Part 5

847.          Item 68 would repeal Division 9 of Part 5.

848.          Division 9 of Part 5 provides a mechanism for the MRT to refer an application that involves an important principle, or issue of general application, to the AAT to determine. As the current MRT caseload would be part of the AAT’s caseload as part of the amalgamation, these provisions would be redundant.

Item 69—Part 6

849.          Item 69 would repeal Part 6.

850.          Part 6 provides for the establishment and membership of the MRT, the establishment of Registries, and makes provision for officers of the Tribunal.

851.          As the MRT will be amalgamated into the AAT, the provision in this Part will be redundant. Equivalent provisions for the establishment of the AAT, registries and provision for officers would be in Parts II and III and section 64 of the AAT Act (Items 27 and 144 of Schedule 1 to the Bill).

Item 70—Part 7 (heading)

852.          Item 70 would repeal the heading ‘Review of protection visa decisions’ and substitute a heading that refers to the review of Part 7-reviewable decisions.

Item 71—Before section 410

853.          Item 71 would insert new sections 408 and 409.

854.          Section 408 contains a simplified outline of Part 7 that sets out in general terms the avenues of merits review under the Migration Act.

855.          Section 409 would provide that Part 7 of the Migration Act applies in relation to the review by the Tribunal of Part 7-reviewable decisions, and that the Tribunal’s powers in relation to Part 7-reviewable decisions may be exercised in the Migration and Refugee Division only.

Item 72—section 410 (definition of Deputy Principal Member)

856.          Item 72 would repeal the definition of Deputy Principal Member, as this definition would not be required in relation to the amalgamated Tribunal.

Item 73—section 410

857.          Item 73 would insert definitions for ‘officer of the Tribunal’ and ‘Part 7-reviewable decision’ in section 410.

858.          ‘Officer of the Tribunal’ would be defined to have the same meaning as in section 3(1) of the AAT Act (Item 9 of Schedule 1 to the Bill), namely the Registrar or a person appointed as an officer under new section 24PA of the AAT Act.

859.          Part 7-reviewable decision’ refers to section 411 of the Migration Act, which sets out those decisions that are currently reviewable by the RRT. The amendment will substitute references to the RRT with references to Part 7-reviewable decisions. The intention is to preserve a distinction between the AAT exercising its newly-conferred jurisdiction in the Migration and Refugee Division, and the AAT exercising its existing migration jurisdiction. This distinction will ensure that it is clear which decisions the provisions in Part 7 apply to, so that the existing scope of Part 7 is not inadvertently expanded.

Item 74—Section 410

860.          Item 74 would repeal the definition of ‘Principal Member’ in section 410, as the role of Principal Member will not be continued in the amalgamated Tribunal.

861.          This item would also repeal the definition of ‘Tribunal’ for the purposes of Part 7. The current definition is linked to the RRT. The definition of Tribunal in subsection 5(1) of the Migration Act would apply in the relation to the amalgamated Tribunal.

Item 75—At the end of section 410

862.          Item 75 would insert a note in section 410 about the meaning of ‘Tribunal’ that cross-refers to the definition of ‘Tribunal’ in subsection 5(1) of the Migration Act.

Item 76—Division 2 of Part 7 (heading)

863.          Item 76 would repeal a heading that refers to the RRT and replace it with the heading ‘Part 7-reviewable decision’.

Item 77—Section 411 (heading)

864.          Item 77 would replace the heading ‘Decisions reviewable by the Refugee Review Tribunal’ with a heading that refers to Part 7‑reviewable decisions. The new heading describes section 411 as providing a definition of Part 7‑reviewable decisions.

Item 78—Section 412 (heading)

865.          Item 78 would repeal the heading ‘Application for review by the Refugee Review Tribunal’ and substitute a heading that refers to Part 7‑reviewable decisions instead of the RRT.

Item 79—Section 413

866.          Item 79 would repeal section 413. The provision was inserted to deal with applications on foot when the RRT was created in 1993, and is now redundant.

Item 80—Section 414 (heading)

867.          Item 80 would repeal the heading ‘Refugee Review Tribunal must review decisions’ and substitute a heading that refers to Part 7-reviewable decisions instead of to the RRT.

Item 81—Section 415 (heading)

868.          Item 81 would repeal the heading ‘Powers of the Refugee Review Tribunal’ and substitute a heading that refers to Part 7-reviewable decisions instead of to the RRT.

Item 82—Section 416

869.          Item 82 would repeal section 416 and substitute a new section 416.

870.          Existing section 416 provides that the RRT, in considering further review applications, is not required to consider information from earlier applications, and may have regard to or take to be correct any previous decision by the RRT or the AAT about or because of that information.

871.          New section 416 would preserve the effect of the existing provision but would remove any redundant references to the RRT. The amendment would ensure that earlier decisions made by the RRT may continue to be taken to be correct by the amalgamated Tribunal when considering a later application by the same person. It would also ensure that the amalgamated Tribunal would not be required to consider in any further application, information considered by the former RRT in an earlier application by the same person.

Item 83—Section 418 (heading)

872.          Item 83 would repeal the heading ‘Secretary to be notified of application for review by Refugee Review Tribunal’ and substitute a heading that refers to Part 7-reviewable decisions rather than to the RRT.

Item 84—Subsection 418(1)

873.          Item 84 would omit a redundant reference to the RRT in subsection 418(1) and substitute a reference to the Tribunal.

Item 85—Section 419

874.          Item 85 would repeal section 419. As with section 413, this section was inserted to deal with applications on foot when the RRT was created in 1993, and is now redundant.

Item 86—Division 3 of Part 7

875.          Item 86 would repeal the heading ‘Exercise of Refugee Review Tribunal’s powers’ and substitute a heading that refers to Part 7-reviewable decisions rather than to the former RRT.

Items 87–89—Subsection 420(1), Subsection 420(2)

876.          Items 87 to 89 would repeal subsection 420(1), and make consequential amendments to the section.

877.          Subsection 420(1) currently sets out the objectives of the RRT. This subsection would be redundant for the amalgamated Tribunal, whose objectives would instead be set out in new section 2A of the AAT Act. New section 2A of that Act includes all of the matters contained in the objective currently set out in subsection 420(1) of the Migration Act.

878.          Item 88 would repeal the numbering ‘(2)’ in section 420, which would be unnecessary as a consequence of the removal of the only other subsection in that section.

879.          Item 89 would omit the word ‘decision’ in section 420 and substitute ‘Part 7‑reviewable decision’. The purpose of this amendment is to clarify that the principles set out in the section apply to decisions that are reviewed by the amalgamated Tribunal under Part 7. These principles are that the Tribunal is not bound by technicalities, legal forms or rules of evidence, and that the Tribunal shall act according to substantial justice and the merits of the case.

Item 90—Sections 420A, 421, 422 and 422A

880.          Item 90 would repeal sections 420A, 421, 422 and 422A of the Migration Act.

881.          These sections would not be required for the amalgamated Tribunal because there are equivalent provisions in the AAT Act that would be applicable.

882.          The provisions deal with the power of the Principal Member to give directions, and the constitution and reconstitution of the Tribunal. These issues would be dealt with in new sections 18B, 19A, 19B, 19D and 42 of the AAT Act (Items 27 and 107 of Schedule 1 of the Bill).

Item 91—Division 4 of Part 7 (heading)

883.          Item 91 would repeal the heading ‘Division 4—Conduct of review’ and substitute a heading that refers to the conduct of review of Part 7-reviewable decisions.

Item 92—Section 423 (heading)

884.          Item 92 would repeal the heading ‘Documents to be given to the Refugee Review Tribunal’ and substitute a heading that refers to the Tribunal instead of the RRT.

Item 93—Section 426 (heading)

885.          Item 93 would repeal the heading ‘Applicant may request Refugee Review Tribunal to call witness’ and substitute a heading that refers to the Tribunal instead of the RRT.

Item 94—Section 427 (heading)

886.          Item 94 would repeal the heading ‘Powers of the Refugee Review Tribunal etc.’ and substitute a heading that refers to the Tribunal instead of the RRT.

Item 95—Paragraph 427(3)(b)

887.          Item 95 would amend paragraph 427(3)(b) to clarify that the power of the Tribunal to summons documents for the purposes of a review under Part 7 also includes the power to summons ‘things’ referred to in the summons.

Item 96—Subsection 427(5)

888.          Item 96 would repeal subsection 427(5), which currently provides that the oath or affirmation to be taken or made by a person for the purposes of section 427 is an oath or affirmation that the evidence that the person gives will be true.

889.          The reason for repealing the subsection is that is not necessary to prescribe the content of an oath or affirmation in legislation. Rather, this is a matter that can be dealt with administratively by the Tribunal.

Item 97—Section 428

890.          Section 428 deals with the power of the Tribunal to take evidence, including the power to authorise a person to take evidence on behalf of the Tribunal. The provision also provides that a person may take evidence inside or outside Australia, and sets out the obligations of a person to make a record of the evidence taken.

891.          Item 97 would repeal the current section and replace it with a provision worded in a way that is better aligned with the equivalent provisions in new subsections 40(3)–(5) of the AAT Act (Item 102 of Schedule 1 to the Bill).

892.          The new provision would continue to require that a person who takes evidence on behalf of the Tribunal must provide a record of the evidence to the Tribunal, but would no longer expressly require that this be a written record. This would enable the person taking the record to provide to the Tribunal either a written, video or audio record of the evidence. This change would enable the Tribunal to utilise technological developments to ensure that it operates efficiently.

Item 98—Division 5 of Part 7 (heading)

893.          Item 98 would repeal the heading ‘Decisions of Refugee Review Tribunal’ and substitute a definition that refers to Part 7-reviewable decisions and the Tribunal rather than to the RRT.

Item 99—Section 430 (heading)

894.          Item 99 would repeal the heading ‘Refugee Review Tribunal’s decision and written statements’ and substitute a definition that refers to Part 7-reviewable decisions and the Tribunal rather than to the former RRT.

Item 100—Section 431

895.          Item 100 would repeal section 431 and substitute a new section 431.

896.          Section 431(1) requires the RRT to publish decisions of particular interest, subject to subsection 431(2) which provides that the decision must not identify an applicant or his or her relatives or dependants.

897.          Subsection 431(1) would not be required because the issue of publication would be dealt with in new section 66B of the AAT Act inserted by Item 147 of Schedule 1.

898.          New section 431 would provide that the Tribunal must not publish a statement made under the requirement to prepare a written statement setting out the Tribunal’s decision, reasoning and findings (contained in subsection 430(1)) which may identify an applicant or relative or other dependant of an applicant. The purpose of this amendment is to preserve the current effect of the limitation on publication, in order to protect the safety of applicants and their families and dependants.

Item 101—Division 6 of Part 7

899.          Item 101 would repeal Division 6 of Part 7 and substitute a new Division 6.

900.          Division 6 of Part 7 establishes certain offences relating to Tribunal proceedings. These comprise failure of a witness to attend or of a person to provide documents as required by a summons, refusal to be sworn or answer questions when appearing before the Tribunal, and contempt of Tribunal.

901.          New section 432 would establish the offence of failure to comply with a summons issued under section 427 of the Migration Act. The new section would harmonise the drafting of the existing offence provisions relating to failure of a person to attend or to produce documents—currently contained in section 432 and subsection 433(2)—with the new summons offence in the AAT Act. The amendment would simplify and modernise the language but retain the substance of the existing elements of the offence.

902.          New section 433 would establish the offence of refusal to be sworn or answer questions. The new section would replace the offence provision in current section 433. The amendment would simplify and modernise the language but retain the substance of the existing elements of the offence.

903.          The amendment would also:

·         repeal the existing penalty for failure to comply with a summons or be sworn and answer questions and substitute a new penalty, and

·         remove the defence of reasonable excuse for the offence.

904.          Existing subsection 432(1) and section 433 provide a penalty of imprisonment for 6 months, or both.

905.          New subsection 432(1) and section 433 would provide a penalty of imprisonment for 12 months or 60 penalty units, or both. This would be part of a change to create consistent penalty provisions throughout the AAT Act and the provisions of the Migration Act relating to the Tribunal, as well as aligning penalties with those that apply in courts.

906.          Existing subsections 432(1A) and 433(1A) provide that the offence provisions do not apply if the person has a reasonable excuse.

907.          The defence of reasonable excuse would be removed, consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, which advises against the use of reasonable excuse defences. The rationale for this advice is that such defences are vague and therefore difficult to rely on, because it is unclear what needs to be established. There are also general defences in the Criminal Code (duress, mistake or ignorance of fact, intervening conduct or event, and lawful authority) which a person can rely on in place of the reasonable excuse defence.

908.          While the privilege against self-incrimination applies in common law, for the avoidance of doubt, new subsections 432(2) and 433(3) would insert a specific defence of self-incrimination to the offences in subsection 370(1) and section 371. This provides certainty that the privilege would not be abrogated. The defence does not preclude or remove the powers to compel information that is not self-incriminatory from an individual. The defence also does not preclude the individual from having to provide information or produce documents that may incriminate others.

909.          New notes to subsections 432(2) and 433(3) would state that a defendant bears an evidential burden in relation to establishing the matters in subsections 370(2) and 371(3) —see subsection 13.3(3) of the Criminal Code Act. Section 13.3 of the Criminal Code provides that in the case of a standard ‘evidential burden’ defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1). It is considered appropriate to cast the evidential burden on the defendant in these circumstances. The person who is being compelled to provide information or produce a document will be best placed to know whether complying might tend to incriminate the person.

910.          It is noted also that legal professional privilege applies in common law and has an equivalent in the Evidence Act. As no express abrogation is applied to this provision, legal professional privilege is intended to apply.

911.          Existing section 434 establishes the offence of contempt of Tribunal. It would not be necessary to re-instate a provision to this effect in the Migration Act for the amalgamated Tribunal, because it is not tied to a specific power set out in the Migration Act and its effect would be preserved by new section 63 of the AAT Act (Item 144 of Schedule 1 to the Bill).

Item 102—Division 7 of Part 7 (heading)

912.          Item 102 would repeal the heading ‘Miscellaneous’ and substitute a heading that refers to Part 7-reviewable decisions instead of the RRT.

Item 103—Sections 435 and 436

913.          Item 103 would repeal sections 435 and 436.

914.          Section 435 provides protections and immunities for members, and clarifies the protections and liabilities of persons appearing before the RRT. This section would not be required because equivalent protections in relation to reviews by the amalgamated Tribunal would be provided by section 60 of the AAT Act (at Item 133 of Schedule 1 to the Bill).

915.          Section 436 provides for the payment of fees and allowances to persons, other than the applicant, summoned to appear before the Tribunal. This section is not required because such payments in relation to reviews by the amalgamated Tribunal would be provided for by section 67 of the AAT Act (Item 148, Schedule 1 of the Bill).

Item 104—Section 438 (heading)

916.          Item 104 would repeal the heading ‘Refugee Review Tribunal’s discretion in relation to disclosure of certain information etc.’ and substitute a heading that refers to the Tribunal rather than the RRT.

Item 105—Section 439

917.          Item 105 would repeal section 439.

918.          Section 439 establishes an offence for the disclosure of confidential information by a person who is or has been a member, acting member, officer or interpreter for the RRT. This section is not required because existing protections regarding disclosure of confidential information in relation matters reviewed under Part 7 of the Migration Act to a court or to the Parliament would be provided for in section 66 of the AAT Act (as amended by Items 145 and 146 of Schedule 1 to the Bill). ‘A court’ for the purposes of that section includes any tribunal, authority or person having power to require the production of documents and the answering of questions.

Item 106—Section 440 (heading)

919.          Item 106 would repeal the heading ‘Refugee Review Tribunal may restrict publication or disclosure of certain matters’ and substitute a heading that refers to the Tribunal instead of the RRT.

Item 107—Section 441

920.          Item 107 would repeal section 441.

921.          Section 441 is comprised of two subsections. Subsection 441(1) provides that the Tribunal may sit from time to time as required at such places in Australia as are convenient. This subsection is not required because new section 18C of the AAT Act (Item 27 of Schedule 1 to the Bill) would provide for the Tribunal to sit as required at any place in Australia or an external territory as are convenient.

922.          Subsection 441(2) provides that the Tribunal constituted by one member or other members may sit and exercise the powers of the Tribunal even though the Tribunal constituted by another member or members is at the same time sitting and exercising those powers. There is no need for an express provision stating this established principle.

Item 108—Division 7A of Part 7 (heading)

923.          Item 108 would repeal the heading ‘Division 7A—Giving and receiving review documents etc.’ and substitute a heading that expressly states that the Part relates to Part 7‑reviewable decisions.

Item 109—Section 441E

924.          Item 109 would repeal section 441E.

925.          Section 441E provides that if the Tribunal is required to give a document to a person, the Tribunal may give a copy of the document, by the same means as the Tribunal could give the document itself.

926.          This principle does not need to be expressly stated in the legislation. Copies of documents can clearly be provided in such circumstances.

Items 110–112—Subsection 441F(1), Paragraph 441F(1)(b), Subsection 441F(2)

927.          Items 110–112 would make consequential amendments to section 441F, to reflect the repeal of section 420A of the Migration Act due to a similar provision in new section 18B of the AAT Act (as inserted by Item 27 of Schedule 1 to the Bill).

928.          Paragraph 441F(1)(b) enables a person to comply with a requirement to give a document or thing to the Tribunal by complying with directions issued by the Principal Member under section 420A. For the amalgamated Tribunal, such directions would be issued pursuant to new section 18B. Item 111 would therefore substitute reference to section 420A with reference to new section 18B of the AAT Act.

929.          Subsection 441F(2) provides that directions under section 420A may provide for a person to give a copy of a document rather than the document itself. Item 112 would repeal subsection 441F(2), because it both relates to a repealed provision and is otherwise unnecessary.

930.          Item 110 would omit the numbering ‘(1)’ in section 441F as a consequence of the repeal of the only other subsection in that section.

Item 113—Divisions 8, 9 and 10 of Part 7

931.          Item 113 would repeal Divisions 8, 9 and 10 of Part 7.

932.          Division 8 provides a mechanism for the RRT to refer an application that involves an important principle, or issue, of general application, to the AAT to determine. As the current RRT caseload would be part of the amalgamated Tribunal’s caseload, these provisions will be redundant and should be repealed.

933.          Division 9 provides for the establishment and membership of the RRT, and makes provision for the terms and conditions relevant to members.

934.          Division 10 provides for the establishment of Registries, and makes provision for officers of the Tribunal.

935.          As the RRT would be amalgamated into the AAT, the provisions in these Parts would be redundant. Equivalent provisions are in Parts II and III and section 64 of the AAT Act (as inserted by Items 27 and 144 of Schedule 1 to the Bill).

Item 114—Part 7A

936.          Item 114 would repeal Part 7A of the Migration Act.

937.          Part 7A effectively provides that the Principal Member of the RRT and the certain persons together with the Registrar, Deputy Registrars and other officers of the RRT together constitute a statutory agency for the purposes of the Public Service Act.

938.          This Part would not be required for the amalgamated Tribunal.

Items 115–119—Subsection 474(4) (table items 17 to 22), Subsection 474(4) (table item 23), Subsection 474(4) (table items 24 to 27), Subsection 474(4) (table item 28), Subsection 474(4) (table items 29 and 30)

939.          Items 115–119 would repeal or amend items in the table of decisions set out in subsection 474(4). This table sets out those decisions that are not privative clause decisions but are ‘non-privative clause decisions’ by operation of subsection 474(6).

940.          Item 115 would repeal Items 17 to 22 of the table. These items relate to sections 353A, 354, 355, 355A, 356 and 357 of the Migration Act. They cover variously directions by the Principal Member, constitution and reconstitution of the MRT, exercise of powers of the MRT, and decisions relating to designating a presiding member. These items would not be required because they refer to sections that would be repealed.

941.          Item 116 would omit ‘offences’ in relation to Division 7 of Part 5 and substitute ‘Part 5-reviewable decisions: offences’. This amendment would provide a clearer description of which decisions the item relates to.

942.          Item 117 would repeal items 24 to 27 of the table. These items relate to Part 6 and sections 421, 422 and 422A of the Migration Act. They cover variously the establishment of the MRT, directions by the Principal Member, and constitution and reconstitution of the RRT. These items would not be required because they refer to provisions that would be repealed.

943.          Item 118 would omit ‘offences’ in relation to Division 6 of Part 7 and substitute ‘Part 7-reviewable decisions: offences’. This amendment would provide a clearer description of which decisions the item relates to.

944.          Item 119 would repeal items 29 and 30 of the table. These items relate to Divisions 9 and 10 of Part 7 of the Migration Act. These Divisions relate to the establishment and membership of the RRT and the registry and officers of the RRT. These items are not required because they refer to provisions that are being repealed due to the amalgamation.

Item 120—Paragraph 474(7)(a)

945.          Item 120 would remove reference to sections 391 and 454 from paragraph 474(7)(a), and retain reference to section 417 of that Act.

946.          Paragraph 474(7)(a) clarifies that certain decisions, including those relating to sections 391 and 454 of the Migration Act, are privative clause decisions.

947.          The purpose of this amendment would be to remove reference to sections 391 and 454 as a consequence of the repeal of those sections.

Item 121—Paragraphs 474(7)(b) and (c)

948.          Item 121 would repeal paragraphs 474(7)(b) and (c).

949.          The current effect of these paragraphs is that certain decisions about the referral of matters under sections 382 or 444 of the Migration Act from the MRT or RRT to the AAT are privative clause decisions.

950.          These paragraphs would be redundant because they refer to sections that would be repealed as part of the amalgamation of the tribunals.

Item 122—Before section 475

951.          Item 122 inserts new section 474A, which provides a definition of ‘AAT Act migration decision’.

952.          The new definition provides that decisions of an administrative character under a provision of the AAT Act set out in the table contained in section 474A are ‘AAT Act migration decisions’.

953.          ‘AAT Act migration decisions’ are included in the definition of ‘migration decisions’, which is used to establish the application of judicial review provisions under the Migration Act.

954.          The purpose of this amendment is to form part of a mechanism that would be used to ensure that existing parameters regarding judicial review are retained. In particular, new section 474A will ensure that certain decisions that would no longer fall within the definition of ‘non-privative clause decisions’ when they are made under the AAT Act (rather than under the Migration Act) would continue to be covered by the judicial review provision in the Migration Act.

955.          The effect of this amendment would be to preserve the effect of existing judicial review provisions in the Migration Act when those decisions are made by, or in relation to, the Migration and Refugee Division of the AAT.

Item 123—Subsection 476A(1) (note)

956.          Item 123 would repeal the note at the end of subsection 476A(1) and substitute a new note.

957.          Section 476A provides for the jurisdiction of the Federal Court in relation to migration decisions.

958.          The current note at the end of subsection 476A(1) states that only non-privative clause decisions can be taken to the Federal Court under subsection 44(3) of the AAT Act. This note refers to section 483, which would be repealed.

959.          The new note would explain that the only decisions that can be taken to the Federal Court under section 44 of the AAT Act, or a referral under section 45 of that Act, are non-privative clause decisions. It would also provide a further explanation about decisions for which an appeal to the Federal Court cannot be made under section 44 of the AAT Act, or a referral under section 45 of that Act.

Item 124—Subsection 477(3) (paragraphs (b) and (c) of the definition of date of the migration decision)

960.          Item 124 would repeal paragraphs 477(3)(b) and (c) of the definition of ‘date of the migration decision’ and substitute new paragraphs.

961.          Existing paragraphs 477(3)(b) and (c) set out the meaning of ‘date of the migration decision’ in relation to decisions by the MRT and RRT. New paragraphs 477(3)(b) and (c) would provide a definition in relation to decisions made by the AAT in the exercise of its powers under Parts 5 and 7 of the Migration Act.

962.              The effect of the amendment would be to ensure that the existing meaning of ‘date of the migration decision’ applies in relation to decisions by the Migration and Refugee Division of the amalgamated Tribunal.

Item 125—Section 483

963.          Item 125 would repeal section 483.

964.          Section 483 provides that section 44 of the AAT Act does not apply to privative clause decisions or purported privative clause decisions.

965.          The repeal of section 483 would be required as a consequence of the amendment of new section 43C of the AAT Act (Item 124 of Schedule 1 to the Bill).

Item 126—Subsection 486D(5)(definition of tribunal decision)

966.          Item 126 would omit reference to ‘a Tribunal’ and substitute reference to ‘the Tribunal’.

967.          Section 486D provides that a person must not commence judicial review proceedings in relation to a tribunal decision unless the person discloses to the court any previous judicial review proceedings about that decision. Subsection 486D(5) provides a definition of ‘tribunal decision’ for the purposes of the section. This amendment would enhance the precision of that definition by making reference to the amalgamated Tribunal.

Item 127—Subsections 500(5) and (5A)

968.          Item 127 would repeal subsections 500(5) and (5A).

969.          Subsection 500(5) provides a list of factors the President of the AAT must take into account when constituting the Tribunal for matters reviewable under subsection 500(1)(primarily character-related matters).

970.          It is unnecessary to retain a mandatory list of factors that must be considered in constituting the Tribunal. It is expected that these or similar factors can be provided elsewhere for transparency and consistency (for example, the AAT currently has Guidelines for Constituting the Tribunal).

971.          Further, the repeal of subsection 500(5) would be consistent with proposed amendments to the AAT Act. In particular, Item 27 of Schedule 1 to the Bill would repeal section 23B of the AAT Act, which provides a similar—although not identical—list.

972.          Subsection 500(5A) provides that section 23B of the AAT does not apply to a proceeding under subsection 500(1). This subsection would be redundant given the repeal of section 23B of the AAT Act.

Item 128—Paragraph 500(6)(a) and (b)

973.          Item 128 would repeal paragraph 500(6)(a) and (b) and substitute a new paragraph 500(6)(a).

974.          Subsection 500(6) ensures that an order for a person’s deportation remains in effect, notwithstanding any order that has been made by the Tribunal or a presidential member under section 41 of the AAT Act (which permits the making of stay orders). Paragraph 500(6)(b) is anomalous since the exercise of the power under section 41 of the AAT Act is vested in the Tribunal and not presidential members.

975.          New paragraph 500(6)(a) would simplify the existing provisions in paragraphs 500(6)(a) and (b). The new provision would provide the same effect as the existing provisions by reference to orders of the Tribunal, including under section 41 (for the avoidance of doubt), rather than by reference to a specific position within the amalgamated Tribunal.

Item 129—Subsections 500(6D) and (6E)

976.          Item 129 would repeal subsections 500(6D) and (6E) and substitute new subsection 500(6D).

977.          Subsection 500(6D) provides that section 37 of the AAT Act does not apply in relation to character-related decisions about a person in the migration zone.

978.          Subsection 500(6E) requires the Registrar, District Registrar or Deputy Registrar to notify the Minister of certain applications for review of character-related decisions, and excludes the operation of subsection 29(11) of the AAT Act in respect of those applications.

979.          New subsection 500 (6D) would remove reference to ‘District Registrar or Deputy Registrar’, as the Registrar can delegate this function in practice. It would remove the requirement for the period and manner of notification to be prescribed in Regulations, as typically in practice the AAT notifies the Secretary of a migration application within a day after applications are received. Removing the requirement for certain matters to be prescribed would not prevent Regulations being made if this were considered appropriate.

Items 130-132—Paragraph 500(6F)(c), After subsection 500(6F)(c), Paragraph 500(6K)(d)

980.          Items 130 to 132 make provision for greater flexibility for the Tribunal about the number of copies of documents that the Minister must lodge with the Tribunal in relation to a review of certain character-related decisions.

981.          Item 130 would amend subsection 500(6F)(c) to allow the Minister to provide one copy of documents to the AAT in relation to reviews of certain character-related decisions rather than two copies.

982.          Item 131 would insert new subsection 500(6FA) to enable the Tribunal to direct the Minister to lodge additional copies of a document. The Minister would be required to comply with the direction.

983.          Item 132 would amend subsection 500(6K)(d) to omit ‘a copy’ and substitute ‘a copy, or the number of copies specified in the notice’.

984.          The effect of this amendment would be to enable Tribunals to specify how many copies of documents the Minister must provide in relation to a notice to produce served in connection with the review of certain character-related decisions. This amendment would be consistent with proposed changes to section 37 of the AAT Act (Items 74 to 87).

Part 2—Multiple Amendments

Division 1—References to MRT-reviewable decisions

Amendments to Migration Act 1958

Item 133—Amendments of listed provisions

985.          Item 133 would omit ‘an MRT-reviewable decision’ in the provisions listed in the table, except for Item 8, and substitute ‘a Part 5-reviewable decision’.

986.          The purpose of these amendments would be to ensure that existing provisions relating to the review of decisions by the MRT continue to apply to decisions reviewable under Part 5 of the Migration Act by the Migration and Refugee Division of the AAT.

987.          This item would also omit reference to ‘primary decision’ in subsection 374(3A) at Item 8 and substitute ‘Part 5-reviewable decision’. This amendment would ensure that decisions that are the subject of review under Part 5 of the Migration Act are consistently referred to as a ‘Part 5-reviewable decision’.

988.          These amendments would not change the effect of the provisions other than to take account of the amalgamated Tribunal.

Division 2—References to officers of the Tribunal

Item 134—Amendments of listed provisions

989.          Item 134 would omit references to ‘member, the Registrar, a Deputy Registrar or another officer’ of the Tribunal in the provisions listed in the table and substitute references to ‘member or an officer of the Tribunal’.

990.          The purpose of this item is to simplify the provisions and to achieve consistency with the provisions of the AAT Act. These amendments would not change the effect of the provisions other than to take account of the amalgamated Tribunal and the simplification of terms in the AAT Act.

Division 3—References to RRT-reviewable decisions

Item 135 —Amendments of listed provisions

991.          Item 135 would omit ‘an RRT-reviewable decision’ in the provisions listed in the table and substitute ‘a Part 7-reviewable decision’.

992.          The purpose of these amendments would be to ensure that existing provisions relating to the review of decisions by the RRT continue to apply to decisions reviewable under Part 7 of the Migration Act by the Migration and Refugee Division of the AAT.

993.          These amendments would not change the effect of the provisions other than to take account of the amalgamated Tribunal.

Part 3—Contingent amendments

Division 1—Interaction with the Migration Amendment (Protection and Other Measures) Act 2014

Amendments to Migration Act 1958

Item 136—Section 337 (definition of decision on a review)

994.          Item 136 would replace the reference to ‘an MRT-reviewable decision’ and substitute ‘a Part 5-reviewable decision’.

995.          The purpose of this amendment would be to ensure the new exhaustive definition of decision on a review in Part 1 of Schedule 4 of the Protection and Other Measures Act 2014 would apply to decisions of the amalgamated Tribunal in the exercise of its powers under Part 5 of the Migration Act.

Item 137—Section 337 (paragraphs (a) to (d) of the definition of decision on a review)

996.          Item 137 would replace the references to ‘MRT-reviewable decision’ and substitute ‘Part 5-reviewable decision’.

997.          The purpose of these amendments would be to ensure the new exhaustive definition of decision on a review in Part 1 of Schedule 4 of the Protection and Other Measures Bill would apply to decisions of the amalgamated Tribunal in the exercise of its powers under Part 5 of the Migration Act.

Item 138—Subsection 353B(1)

998.          Item 138 would repeal subsection 353B(1) inserted by Part 1 of Schedule 4 of the Protection and Other Measures Bill and substitute new subsection 353B(1).

999.          Subsection 353B(1) provides that the Principal Member may, in writing, direct that a decision (the guidance decision) of the Tribunal specified in the direction is to be complied with by the Tribunal in reaching a decision on a review of an MRT-reviewable decision of a kind specified in the direction. The reference to Principal Member would be redundant in the amalgamated Tribunal.

1000.      New subsection 353B(1) would provide that the power to direct that a decision is a guidance decision may be exercised by the President of the Tribunal or the head of the Migration and Refugee Division of the Tribunal.

1001.      New subsection 353B(1) would also replace the words ‘an MRT-reviewable decision’ with ‘a Part 5-reviewable decision’ to ensure section 353B continued to apply to decisions of the amalgamated Tribunal in the exercise of its powers under Part 5 of the Migration Act.

1002.      New subsection 353B(1) would also add the words ‘or of the former Migration Review Tribunal’ to ensure that a guidance decision would be a decision of the former MRT.

Item 139—Section 410 (definition of decision on a review)

1003.      Item 139 would replace the reference to ‘an RRT-reviewable decision’ and substitute ‘a Part 7-reviewable decision’.

1004.      The purpose of this amendment would be to ensure the new exhaustive definition of decision on a review in Part 1 of Schedule 4 of the Protection and Other Measures Bill would apply to decisions of the amalgamated Tribunal in the exercise of its powers under Part 7 of the Migration Act.

Item 140—Section 410 (paragraphs (a) to (d) of the definition of decision on a review)

1005.      Item 140 would omit ‘RRT-reviewable decision’ and substitute ‘Part 7-reviewable decision’.

1006.      The purpose of these amendments would be to ensure the new exhaustive definition of decision on a review in Part 1 of Schedule 4 of the Protection and Other Measures Bill would apply to decisions of the amalgamated Tribunal made in the exercise of its powers under Part 7 of the Migration Act.

Item 141—Subsection 420B(1)

1007.      Item 141 would repeal subsection 420B(1) inserted by Part 1 of Schedule 4 of the Protection and Other Measures Bill and substitute new subsection 420B(1).

1008.      Subsection 420B(1) provides that the Principal Member may, in writing, direct that a decision (the guidance decision) of the Tribunal specified in the direction is to be complied with by the Tribunal in reaching a decision on a review of an RRT-reviewable decision of a kind specified in the direction. The reference to Principal Member would be redundant in the amalgamated Tribunal.

1009.      New subsection 420B(1) would provide that the power to direct that a decision is a guidance decision may be exercised by the President of the Tribunal or the head of the Migration and Refugee Division of the Tribunal.

1010.      The new subsection 420B(1) would also replace the words ‘an RRT-reviewable decision’ with ‘a Part 7-reviewable decision’ to ensure section 420B continued to apply to decisions of the amalgamated Tribunal in the exercise of its power under Part 7 of the Migration Act.

1011.      New subsection 420B(1) would also add the words ‘or of the former Refugee Review Tribunal’ to ensure that a guidance decision could be a decision of the former RRT.

Item 142—Section 430D (heading)

1012.      Item 142 would repeal the heading of section 430D which refers to ‘Refugee Review Tribunal’s oral decision and oral statement’ amended by Part 1 of Schedule 4 of the Protection and Other Measures Act and substitute the words ‘Tribunal’s decision given orally’.

1013.      The purpose of this amendment is to simplify the heading and to replace the reference to the former RRT with a reference to the amalgamated Tribunal.

Item 143—Subsection 477(3) (paragraphs (b) and (c) of the definition of date of the migration decision)

1014.      Item 143 would repeal paragraphs 477(3)(b) and (c) inserted by Part 1 of Schedule 4 of the Protection and Other Measures Bill and substitute new paragraphs 477(3)(b) and (c).

1015.      New paragraph 477(3)(b) would replace the reference to ‘the Migration Review Tribunal’ in paragraph (b) with ‘the Administrative Appeals Tribunal in the exercise of its powers under Part 5’. New paragraph 477(3)(c) would replace the reference to ‘the Refugee Review Tribunal’ with ‘the Administrative Appeals Tribunal in the exercise of its powers under Part 7’.

1016.      The purpose of these amendments would be to ensure the definition of ‘date of the migration decision’ in subsection 477(3) continued to apply to decisions of the amalgamated Tribunal in the exercise of its powers under Parts 5 and 7 of the Migration Act.

Migration Amendment (Protection and Other Measures) Act 2014

Item 144—Item 7 of Schedule 4 (heading)

1017.      Item 144 would repeal the heading of Item 7 of Schedule 4 of the Migration Amendment (Protection and Other Measures) Act 2014, which is expressed to insert section 353B into the Migration Act ‘after section 353A’.

1018.      As this Act repeals section 353A (see Item 45 of this schedule), this amendment would ensure that section 353B is effectively inserted into the Migration Act after section 353.

Item 145—Item 22 of Schedule 4 (heading)

1019.  Item 145 would repeal the heading of Item 22 of Schedule 4 of the Migration Amendment (Protection and Other Measures) Act 2014, which is expressed to insert section 420B into the Migration Act ‘after section 420A’.

1020.      As this Bill would repeal section 420A (see Item 90 of this schedule), this amendment would ensure that section 420B would be inserted into the Migration Act after section 420.

Division 2—Interaction with the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014

1021.      The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (the Migration and Maritime Powers Act) would establish a new review body, the Immigration Assessment Authority (IAA) to review decisions relating to persons who are subject to the fast track assessment process. The IAA would be an independent office of the Tribunal.

1022.      Some of the items described in this Division would only commence if the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill is enacted.

1023.      Other items described in this Division would only commence if the Migration and Maritime Powers Act, or a specific item within that Act, does not commence before the commencement of this Schedule.

Administrative Appeals Tribunal Act 1975

Items 146–147—Subparagraph 24N(2)(a)(ii), At the end of paragraph 24N(2)(a)

1024.      Items 146 to 147 would amend subsection 24N(2) of the AAT Act to provide that IAA reviewers together with the Registrar and staff of the AAT—including persons made available to the IAA under subsection 473JE(2) of the Migration Act—constitute a statutory agency.

1025.      Item 146 would omit the word ‘and’ from subparagraph 24N(2)(a)(ii), as a consequence of the insertion of new subparagraph 24N(2)(a)(iii).

1026.      Item 147 would insert new subparagraph 24N(2)(a)(iii). The effect of the new paragraph would be to provide that the Senior Reviewer and the other Reviewers of the IAA, and any staff of the Tribunal made available to assist the Authority, together with the Registrar and the staff mentioned in section 24N together constitute a statutory agency.

1027.      This item would only commence if the Migration and Maritime Powers Act commences.

Migration Act 1958

Item 148—Section 99

1028.      Item 148 would insert a reference to the IAA into section 99 of the Migration Act.

1029.      An effect of section 99 as amended by Item 13 of this schedule would be that that information that a person gives or causes to be given to the Tribunal performing a function under the Migration Act is taken to be an answer to a question in the person’s application form for the purposes of specified sections.

1030.      The purpose of this item would be to ensure that section 99 applies to information given to the IAA.

1031.      This item would only commence if the Migration and Maritime Powers Act commences.

Item 149—Section 103

1032.      Item 149 would insert reference to the IAA into section 103 of the Migration Act.

1033.      An effect of section 103 as amended by Item 14 of this schedule would be to provide that a person must not give, or cause to be given, a bogus document to the Tribunal performing a function or purpose under the Migration Act.

1034.      The purpose of this item is to ensure that section 103 applies to persons providing documents to the IAA.

1035.      This item would only commence if the Migration and Maritime Powers Act commences.

Item 150 —Subsection 261AKD(2) (paragraph (c) of the definition of permitted provision)

1036.      Item 150 would insert a reference to the IAA into section 261AKD of the Migration Act.

1037.      Section 261AKD as amended by Item 17 of this Schedule would provide that it is an offence to cause a video recording to be provided to another person if it is not a permitted provision of the recording. A permitted provision includes provision of a recording for the purpose of a proceeding before the Tribunal.

1038.      The purpose of this item is to ensure that provision of a recording for the purpose of a proceeding before the IAA is a permitted purpose under section 261AKD.

1039.      This item would only commence if the Migration and Maritime Powers Act commences.

Item 151—Subsection 271(4) (at the end of the definition of migration proceedings)

1040.      Item 151 would insert a reference to proceedings in the IAA for the review of a fast‑track decision reviewable decision into section 271(4) of the Migration Act.

1041.      Subsection 271(4) defines ‘migration proceedings’ for the purposes of section 271.

1042.      The purpose of this amendment would be to ensure that proceedings before the IAA are included in the definition of migration proceedings.

1043.      This item would only commence if the Migration and Maritime Powers Act commences.

Item 152—Paragraph 336E(2)(f)

1044.      Item 152 would insert a reference to the IAA into paragraph 336E(2)(f) of the Migration Act.

1045.      Section 336E provides that it is an offence to disclose identifying information where the disclosure is not a permitted disclosure. Paragraph 336E(2)(f) as amended by Item 24 of this Schedule would provide that a permitted disclosure includes a disclosure for the purpose of a proceeding before the Tribunal.

1046.      The purpose of this amendment would be to clarify that the disclosure of identifying information for the purpose of a proceeding before the IAA is permitted.

Item 153—At the end of section 336M

1047.      Item 153 would amend the simplified outline at section 336M that would be inserted by Item 26 of this Schedule to provide an explanation regarding decisions that are reviewable by the IAA.

1048.      This item would only commence if the Migration and Maritime Powers Act commences.

Item 154—At the end of section 408

1049.      Item 154 would amend the simplified outline at section 408 that would be inserted by Item 71 of this Schedule to provide an explanation regarding decisions that are reviewable by the IAA.

1050.      This item would only commence if the Migration and Maritime Powers Act commences.

Items 155–158—Section 414A (heading), Subsection 414A(1), Subsection 414A(2)

1051.      Items 155–158 would make contingent amendments if Item 14, Schedule 7 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (the Migration and Maritime Powers Act) did not come into effect before this Schedule.

1052.      In that event, Item 155 would repeal the heading ‘Period within which Tribunal must review decision on protection visas’ and substitute a heading that refers to Part 7‑reviewable decisions instead of to the RRT.

1053.      Items 156, 157 and 158 would omit references in subsections 414A(1) and (2) to the RRT and substitute references to the Tribunal and to Part 7‑reviewable decisions.

1054.      These items would not come into effect if the Migration and Maritime Powers Act comes into effect before this schedule, because Item 14 of Schedule 7 of that Act would repeal section 414A.

Items 159–170—Section 440A

1055.      Items 159–170 would omit redundant references to ‘Principal Member’, ‘RRT, or ‘RRT‑reviewable decisions’ in relation to section 440A.

1056.      Items 159 and 160 would repeal the headings ‘Principal Member’s obligation to report to Minister’ and 'substitute the heading ‘Reports about review of Part 7‑reviewable decisions’.

1057.      Items 161–170 would make the following amendments to section 440A:

·         omit references to ‘Principal Member’ within headings, provisions or notes, and substitute references to the President of the Tribunal

·         substitute references to ‘RRT’ with ‘Tribunal’, and

·         substitute references to ‘RRT-reviewable decision’ with ‘Part 7‑reviewable decision’.

1058.      These items would not come into effect if the Migration and Maritime Powers Act comes into effect before this schedule, because Item 15 of Schedule 7, Part 1 of that Act would repeal section 440A.

Item 171—Subsection 440A(10)(definition of decision period)

1059.      Item 171 would omit ‘an RRT‑reviewable decision’ from the definition of decision period in subsection 440A(10) and substitute ‘a Part 7‑reviewable decision’.

1060.      This amendment would not come into effect if the Migration and Maritime Powers Act comes into effect before this schedule, because Item 15 of Schedule 7, Part 1 of that Act would repeal section 440A.

Items 172–173—Section 473BA

1061.      Items 172 and 173 would amend the simplified outline that would be inserted by Item 21 of Schedule 4, Part 1 of the Migration and Maritime Powers Bill relating to IAA.

1062.      Paragraph 5 of the simplified outline in Item 21 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill would explain that decisions to refuse to grant protection visas to fast track applicants are generally not reviewable by any other Tribunal under the Migration Act, although some decisions are reviewable by the Administrative Appeals Tribunal.

1063.      Item 172 would omit ‘not reviewable by any other Tribunal’ from paragraph 5 of the outline and substitute ‘not otherwise reviewable’.

1064.      The purpose of this amendment would be to amend the outline relating to the IAA to reflect the amalgamation of the existing tribunals.

1065.      Paragraph 6 of the outline explains that the IAA consists of, amongst others, the Principal Member of the RRT, and broadly outlines the responsibilities of the Principal Member.

1066.      Item 173 would omit this paragraph and substitute a paragraph that reflects the composition of the IAA following the amalgamation of the existing tribunals.

1067.      These items would only commence if the Migration and Maritime Powers Act commences.

Items 174–176—Section 473BB, At the end of section 473BB, Section 473BB (definition of Principal Member)

1068.      Items 174 to 176 would make amendments relating to defined terms in relation to the IAA.

1069.      Item 21, Schedule 4, Part 1 of the Migration and Maritime Powers Act would insert new section 473BB into the Migration Act, setting out a number of definitions in relation to the IAA provisions.

1070.      Item 174 would define ‘Division head’ for the purposes of the Part to mean the Division head of the Migration and Refugee Division, and ‘President’ to mean the President of the Tribunal.

1071.      Item 175 would insert a note that ‘Tribunal’ means the AAT, and provide a cross‑reference to the definition of ‘Tribunal’ in subsection 5(1) of the Migration Act.

1072.      Item 176 would repeal the redundant definition of ‘Principal Member’ in section 473BB, to reflect the amalgamation of the tribunals.

1073.      These items would only commence if the Migration and Maritime Powers Act commences.

Item 177—Subsection 473FC(1)

1074.      Item 177 would omit redundant references to the Principal Member of the RRT in section 473FC(1) and substitute reference to the President of the Tribunal.

1075.      This amendment would be required because Item 21 of the Migration and Maritime Powers Act would insert new section 473FC(1) into the Migration Act, which provides that the Principal Member of the RRT may direct that a guidance decision is to be complied with by the IAA.

1076.      The effect of this item would be that the power to issue guidance decisions is conferred on the President of the Tribunal. This power would also be conferred on the Division head of the Migration and Refugee Division, due to new section 473JB(1) in item 181.

Items 178–180—Subsection 473JA(1), Paragraph 473JA(2)(a), Subsection 473JA(3)

1077.      In the event that new section 473JA is inserted into the Migration Act, these items would replace redundant references to the RRT and the Principal Member and insert references to the Migration and Refugee Division of the amalgamated Tribunal and its Division head, and to the President.

1078.      Item 21, Schedule 4, Part 1 of the Migration and Maritime Powers Act would insert section 473JA in the Migration Act. Subsection 473JA(1) would provide that the IAA is established within the RRT, and subsection 473JA(2) would establish that the IAA consists of the Principal Member, Senior Reviewers and other Reviewers.

1079.      The purpose of these amendments is to remove redundant references and substitute references to the Tribunal, the President and the Division head.

Item 181—Section 473JB(1)

1080.      Item 181 would repeal subsection 473JB(1) and substitute a new subsection 473JB(1).

1081.      Item 21, Schedule 4, Part 1 of the Migration and Maritime Powers Act would insert new subsection 473JB(1) in the Migration Act that would provide that the Principal Member is responsible for the overall operation and administration of the IAA and for that purpose may issue directions and determine policies.

1082.      Item 181 would insert new subsection 473JB(1), which would provide that the President and the Division head of the Migration and Refugee Division are responsible for the overall operation and administration of the IAA, and may issue directions and determine policies for that purpose.

1083.      Item 181 would also insert new subsection 473JB(1A), which would provide that any power or function that is conferred on the President in this Part may be exercised or performed by either the President or the Division head of the Migration and Refugee Division. For example, the Division head may exercise the President’s power to issue practice directions as to the conduct of the operations of the IAA under section 473FB.

1084.      The item would provide a specific example that the Division head may exercise the President’s power to issue guidance decisions under section 473FC.

Item 182—Subsection 473JB(2)

1085.      Item 182 would omit a redundant reference to ‘Principal Member’ in subsection 473JB(2) and substitute ‘President or Division head’.

1086.      The effect of this amendment would be that the Senior Reviewer is to manage the IAA subject to the directions of, and in accordance with policies determined by, the President or Division head.

Item 183—Subsection 473JE(2)

1087.      Item 183 would replace a reference to the Principal Member of the RRT with a reference to the Registrar of the Tribunal, and a reference to the RRT with a reference to the Tribunal, in the event that new subsection 473JE(2) is inserted into the Migration Act.

1088.      Item 21, Schedule 4, Part 1 of the Migration and Maritime Powers Act 2014 would insert section 473JE(2), which would provide that the Principal Member must make available officers of the RRT to assist the IAA in the performance of its administrative functions.

1089.      The purpose of this amendment is to remove redundant references to the Principal RRT Member and the RRT, and impose the requirement instead on Registrar of the Tribunal.

Item 184—Subsection 473JF (heading)

1090.      Item 184 would replace a heading that refers to the Principal Member in the event that new section 473JF is inserted into the Migration Act by the Migration and Maritime Powers Act 2014.

1091.      This item would remove the heading ‘Delegation by Principal Member’ and substitute the heading ‘Delegation by Registrar’.

1092.      The purpose of this amendment is to remove redundant reference to the Principal Member and impose the requirement instead on the Registrar of the Tribunal.

Item 185—Subsection 486D(5) (paragraph (a) of the definition of tribunal decision)

1093.      Item 185 would omit reference to ‘a Tribunal’ in paragraph (a) of the definition of ‘tribunal decision’ in the event that current subsection 486D(5) is amended by the Migration and Maritime Powers Act, and substitute reference to ‘the Tribunal’.

1094.      Current section 486D provides that a person must not commence judicial review proceedings in relation to a tribunal decision unless the person discloses to the court any previous judicial review proceedings about that decision. Subsection 486D(5) provides a definition of ‘tribunal decision’ for the purposes of the section. Paragraph 486D(5)(a) as amended by the Migration and Maritime Powers Act refers to a decision by a tribunal under Parts 5 or 7 or a section 500 of the Migration Act.

1095.      This amendment would enhance the precision of that definition by referring directly to the amalgamated Tribunal.

Division 3—Interaction with the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014: multiple amendments

Amendments to Migration Act 1958

Item 186—Amendment of listed provisions

1096.      Item 186 would remove references to ‘Principal Member’ in the provisions listed in the table, and substitute references to the President of the AAT.

1097.      The provisions listed in the table relate to the establishment, organisation and powers of the head of the IAA. The powers conferred on the President would also be taken to be conferred on the Division head of the IAA, due to the effect of new subsection 473JB, inserted by Item 181 of this Schedule. Therefore the effect of the amendment would be that the powers and obligations that would have otherwise vested in the Principal Member in relation to the IAA would vest instead in the President of the Tribunal and the Division head of the Migration and Refugee Division of the Tribunal.

1098.          This item would only commence if the Migration and Maritime Powers Act 2014 commences, as it would amend new provisions inserted by that Act.

Division 4—Interaction with the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014: transitional provisions

Item 187 —Transitional—performance of functions of Immigration Assessment Authority

1099.      Item 187 would provide a transitional provision that applies if the IAA is established before the commencement of Parts 1 and 2 of the Schedule.

1100.      The effect of this item would be that the IAA would continue in existence within the Migration and Review Division of the AAT, and that anything done by or on behalf of the IAA by the Principal Member of the former RRT before commencement is taken to have been done by or on behalf of the President of the Tribunal.

Item 188—Transitional—report under section 440A of the Migration Act 1958

1101.      Item 188 would provide that section 440A of the Migration Act, as in force immediately prior to 1 July 2015, applies to the final reporting period as if the references in the section to the Principal member of the former RRT were references to the President of the amalgamated Tribunal.

Division 5—Interaction with the Migration Amendment (Character and General Visa Cancellation) Act 2014

Migration Act 1958

Item 189—Subsection 133A(1)

1102.      Item 189 would omit ‘the Migration Review Tribunal, the Refugee Review Tribunal, the Administrative Appeals Tribunal’ and substitute ‘the Administrative Appeals Tribunal or the former Migration Review Tribunal or former Refugee Review Tribunal’ in subsection 133A(1), inserted by Item 12 of Schedule 2 of the Character and General Visa Cancellation Bill.

1103.      Section 133A outlines the Minister’s personal powers to cancel visas on section 109 grounds.

1104.      The purpose of this item is to ensure that section 133A applies to decisions of the amalgamated Tribunal, as well as decisions of the former MRT and RRT.

Item 190—Paragraph 133A(5)(c)

1105.      Item 190 would omit ‘the Migration Review Tribunal, the Refugee Review Tribunal, the Administrative Appeals Tribunal’ and substitute ‘the Administrative Appeals Tribunal or the former Migration Review Tribunal or former Refugee Review Tribunal’ in paragraph 133A(5)(c), which would be inserted by Schedule 2 of the Character and General Visa Cancellation Bill.

1106.      Section 133A outlines the Minister’s personal powers to cancel visas on section 109 grounds.

1107.      The purpose of this item would be to preserve the effect of subsection 133A(5) for decisions of the amalgamated Tribunal, and decisions of the former MRT and former RRT.

Item 191—Subsection 133C(1)

1108.      Item 191 would omit ‘the Migration Review Tribunal, the Refugee Review Tribunal, the Administrative Appeals Tribunal’ and substitute ‘the Administrative Appeals Tribunal or the former Migration Review Tribunal or former Refugee Review Tribunal’ in subsection 133C(1), inserted by Schedule 2 of the Character and General Visa Cancellation Bill.

1109.      Section 133C outlines the Minister’s personal powers to cancel visas on section 116 grounds.

1110.      The purpose of this item would be to ensure that section 133C applies to decisions of the amalgamated Tribunal, as well as decisions of the former MRT and former RRT.

Item 192—Subsection 133C(5)(c)

1111.      Item 192 would omit ‘the Migration Review Tribunal, the Refugee Review Tribunal, the Administrative Appeals Tribunal’ and substitute ‘the Administrative Appeals Tribunal or the former Migration Review Tribunal or former Refugee Review Tribunal’ in paragraph 133C(5)(c), inserted by Schedule 2 of the Character and General Visa Cancellation Bill.

1112.      Section 133C outlines the Minister’s personal powers to cancel visas on section 116 grounds.

1113.      The purpose of these amendments would be to preserve the effect of subsection 133C(5) for decisions of the amalgamated Tribunal, and decisions of the former MRT and former RRT.

Division 6—Interaction with the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Act 2014

Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Act 2014

Item 193—Item 21 of Schedule 1 (heading)

1114.      Item 193 would repeal the heading ‘Transitional—RRT and AAT review’ and substitute ‘Transitional—review of protection visa decisions’, in the event that Item 21 of the Migration Amendment (Regaining Control Over Australia’s Protection Obligation) Act 2014 commences.

1115.      This item would remove reference to the RRT.

Item 194—Subitem 21(2) of Schedule 1

1116.      Item 194 would omit a redundant reference to ‘an RRT‑reviewable decision’ and substitute reference to decisions that are ‘reviewable under Part 7 of that Act’.


Schedule 3—Social Security Amendments

Overview

1117.      Schedule 3 to the Bill would amend the SS Act and the SSA Act to support amalgamation.

1118.      The amendments to the SS Act are minor consequential amendments, including amendments to omit references to the SSAT and insert new definitions that would be used in the SSA Act to describe the amalgamated Tribunal’s review function. Apart from reflecting the transfer of the SSAT’s review function to the amalgamated Tribunal, no policy change to the operation of the SS Act is intended.

1119.      Key amendments to the SSA Act would:

·         repeal provisions continuing the existence of the SSAT and providing for its organisation and membership

·         transfer the merits review jurisdiction of the SSAT to the AAT, with existing rights to review of decisions under the social security law being preserved (including a right of second review within the amalgamated Tribunal)

·         create new defined terms of ‘AAT first review’ and ‘AAT second review’, corresponding to existing SSAT review and AAT review of social security matters respectively

·         modify the application of the AAT Act in order to preserve existing procedures for merits review of social security matters

·         modernise and simplify the drafting of the provisions of the SSA Act relating to external merits review, without altering existing policy, and

·         make consequential amendments, including to replace references to the SSAT with references to the AAT.

Amendments to the Social Security Act 1991

Item 1—Section 22

1120.      Item 1 would repeal section 22. Section 22 provides definitions of the terms ‘AAT’, ‘AAT Act’, ‘review’ and ‘SSAT’, which would no longer be necessary:

·         the terms ‘AAT’ and ‘AAT Act’ would be defined in subsection 23(1) (see Items 2 and 3 of Schedule 3)

·         the term ‘review’ is defined for the purposes of existing Schedule 3 of the SSA Act, which is being repealed (see Item 72 of Schedule 3), and

·         the SSAT would be abolished.

Item 2—Subsection 23(1) (definition of AAT) and Item 3—Subsection 23(1) (definition of AAT Act)

1121.      Items 2 and 3 would repeal the existing definitions of ‘AAT’ and ‘AAT Act’ in subsection 23(1) and substitute new definitions. ‘AAT’ would mean the Administrative Appeals Tribunal and ‘AAT Act’ would mean the Administrative Appeals Tribunal Act 1975.

1122.      These amendments would be necessary because the existing definitions refer back to section 22, which would be repealed (see Item 1 of Schedule 3).

Item 4—Subsection 23(1)

1123.      Item 4 would insert new definitions of ‘AAT first review’ and ‘AAT second review’ into subsection 23(1). These terms would have the same meaning as in the SSA Act (Item 68 of Schedule 3):

·         ‘AAT first review’ would refer to review of decisions in respect of which applications may be made under section 142 of the SSA Act (Item 68 of Schedule 3). This would comprise those applications which may be made to the former SSAT.

·         ‘AAT second review’ would refer to review of decisions in respect of which applications may be made under section 179 of the SSA Act (Item 68 of Schedule 3). This would comprise those applications which may be made to the AAT for review of decisions of the former SSAT.

1124.      The new definitions of ‘AAT first review’ and ‘AAT second review’ would facilitate the maintenance of the existing two-tiered review process in respect of social security decisions, but with this process occurring within the amalgamated Tribunal. The definitions would also facilitate the preservation of differentiated procedures on AAT first review and AAT second review, as the AAT Act and the SSA Act would prescribe procedural rules specific to each category. This is consistent with existing policy, as in some respects the procedures of the AAT and the former SSAT in reviewing social security matters differ, based on the particular characteristics of the SSAT’s caseload. There would be no change to the types of decisions that may be reviewed.

Item 5—Subsection 23(1) (definition of SSAT)

1125.      Item 5 would repeal the definition of SSAT in subsection 23(1) in light of the abolition of the SSAT.

Item 6—Subsections 27(2) and (4)

1126.      Item 6 would amend subsections 27(2) and (4) by omitting ‘, the SSAT’ wherever it occurs in these subsections. As these subsections also refer to the AAT, the effect of the provisions would remain unchanged.

Item 7—Paragraph 1184L(2)(a)

1127.      Item 6 would make a minor consequential amendment to paragraph 1184L(2)(a) to omit reference to the SSAT and to insert the new defined term ‘AAT first review’ which describes those applications which may be made to the amalgamated Tribunal for review under section 142 of the SSA Act. No change to existing policy is intended.

Item 8—Paragraph 1223AB(a); Item 9—Paragraph 1223AB(b); and Item 10— Section 1223AB (note)

1128.      Items 8 to 10 would amend section 1223AB. Section 1223AB has the effect that if a person applies to the AAT for review of a decision and the AAT makes a stay order under subsection 41(2) of the AAT Act, and as a result the amount of a social security payment that has been paid is greater than should have been paid, then the difference is a debt due to the Commonwealth.

1129.      Item 8 would amend paragraph 1223AB(a) by omitting reference to the ‘AAT’ and substituting a reference to ‘AAT second review’. Item 9 would repeal paragraph 1223AB(b) and substitute a new paragraph 1223AB(b) with minor updates to terminology. Item 10 would repeal the note to section 1223AB, which describes the effect of subsection 43(6) of the AAT Act, and is not necessary.

1130.      These amendments would confine the operation of section 1223AB to AAT second review, which would preserve existing policy, as the SSAT has no power to make stay orders. Therefore, new section 147 of the SSA Act (Item 42 of Schedule 3 to the Bill) would provide that subsection 41(2) of the AAT Act (the power to make stay orders) does not apply on AAT first review. However, it is noted that the Secretary can declare that a person’s payment is to continue pending the conclusion of review by the SSAT (section 145 of the SSA Act, amended by Items 38-41 of Schedule 3 to the Bill).

Amendments to the Social Security (Administration) Act 1991

Item 11—Paragraph 8(f)

1131.      Item 11 would amend paragraph 8(f) by omitting ‘and the Social Security Appeals Tribunal’.

1132.  Paragraph 8(f) requires the Secretary, in administering the social security law, to have regard to the need to apply government policy in accordance with the law and with due regard to relevant decisions of the AAT and the SSAT. Amended paragraph 8(f) would continue to refer to the AAT, which would be sufficient to preserve existing policy.

Item 12—Section 9

1133.      Item 2 would repeal section 9.

1134.      Section 9 provides that if the Minister prepares, and lays before Parliament, a written statement of government policy on the administration of social security law, the Secretary and the SSAT must have regard to the statement in exercising powers under the social security law.

1135.      In practice, the Minister does not lay statements of government policy before the Parliament. Section 9 is unnecessary as the Minister may prepare policy statements in the absence of express legislative authorisation. It is standard practice for the AAT to have regard to government policy when conducting merits review.

Item 13 —Subsection 10(1)

1136.      Item 13 would repeal subsection 10(1).

1137.      Subsection 10(1) provides that the Secretary and the Principal Member of the SSAT may agree on administrative arrangements to further the objectives of Part 4 of the Act.

1138.      No such arrangements exist. Subsection 10(1) is unnecessary as the Secretary and the AAT would be entitled to agree on administrative arrangements to further the proper conduct of merits review in the absence of express legislative authorisation, should such arrangements be appropriate.

Item 14—Paragraph 124E(2)(d)

1139.      Item 14 would amend paragraph 124E(2)(d) by omitting ‘Part 4’ and substituting ‘Parts 4 and 4A’.

1140.      This would be a minor consequential amendment to reflect the renumbering of Parts in the Act as a result of the amalgamation. Existing Part 4 concerns the review of decisions. New Part 4 would concern internal review, while new Part 4A would concern review by the AAT. No policy change to section 124E is intended.

Item 15—Part 4 (heading)

1141.      Item 15 would repeal the existing heading to Part 4, and substitute a new heading, ‘Part 4—Internal review of decisions’.

Item 16—Paragraph 126(2)(b)

1142.      Item16 would repeal paragraph 126(2)(b) and substitute a new paragraph 126(2)(b).

1143.      Existing paragraph 126(2)(b) provides that the Secretary may review a decision even though an application has been made to the SSAT or the AAT for review of the decision. New paragraph 126(2)(b) would only refer to review of decisions by the AAT. No policy change is intended.

Item 17—Section 128 (heading)

1144.      Item 17 would repeal the heading at section 128 and substitute a new heading, ‘Notice to AAT Registrar’. This amendment is necessary as the existing heading refers to the SSAT Principal Member.

Item 18 —Subsection 128(1)

1145.      Item 18 would repeal subsection 128(1).

1146.      Subsection 128(1) provides that if the Secretary makes a decision under subsection 126(3) to affirm, vary or set aside a decision and substitute a new decision, and a person has applied to the SSAT for review of the decision that was reviewed by the Secretary, the Secretary must give the Principal Member written notice of the decision as varied or substituted.

1147.      Subsection 128(1) may be repealed, as new subsection 128(2) (Item 19) would provide for appropriate notification to the AAT.

Item 19—Subsection 128(2)

1148.      Item 19 would repeal subsection 128(2) and substitute a new subsection 128(2).

1149.      Existing subsection 128(2) requires that if the Secretary makes a decision under subsection 126(3) to affirm, vary or set aside a decision and substitute a new decision, and a person has applied to the AAT for review of the decision that was reviewed by the Secretary, the Secretary must give the Registrar of the AAT written notice of the new decision.

1150.      New subsection 128(2) would require that the Secretary give written notice to the Registrar of the AAT if the Secretary makes a review decision to vary or set aside and substitute a decision after an application for review has been made to the AAT. It is not considered necessary for the Secretary to notify the AAT where the outcome of the Secretary’s review is to affirm the decision in respect of which an application has been made for review.

Item 20—Subsection 135(3)

1151.      Item 20 would omit ‘182’ in subsection 135(3) and substitute ‘181’. This would be a minor consequential amendment to reflect the renumbering of section 182 to section 181.

Item 21—Paragraphs 137(1)(f) and (3)(f)

1152.      Item 21 would amend paragraphs 137(1)(f) and (3)(f) by omitting ‘, the Social Security Appeals Tribunal or the Administrative Appeals Tribunal’ and substituting ‘or the AAT’.

1153.      Section 137 concerns when certain determinations by the Secretary will not be revived following internal review or review by the SSAT or AAT. In referring to the review process, paragraphs 137(1)(f) and 137(3)(f) mention the SSAT and the AAT. The amended paragraphs would refer only to the AAT. No other policy change is intended.

Item 22—Paragraph 138(1)(a), Item 23— Subparagraph 138(1)(b)(iii), Item 24— Paragraph 138(c) and Item 25— Subsection 138(3)

1154.      Items 22, 23, 24 and 25 amend section 138. Section 138 concerns notification of further rights of review when the decision-maker gives another person notice of a decision on internal review.

1155.      Item 22 would amend paragraph 138(1)(a) to omit ‘, apply to the Social Security Appeals Tribunal’ and substitute ‘and the AAT Act, apply to the AAT’. Paragraph 138(1)(a) provides that when a decision‑maker gives another person notice of a decision on internal review, the notice must state that the person may apply to the SSAT for review of the decision. The amendment would ensure that persons continue to be notified of their right to merits review by the amalgamated Tribunal.

1156.      Item 23 would make a minor consequential amendment to subparagraph 138(1)(b)(iii) as a result of the repeal of paragraph 138(1)(c) at Item 24.

1157.      Item 24 would repeal paragraph 138(1)(c). Paragraph 138(1)(c) provides that when a decision‑maker gives another person notice of a decision on internal review, the notice must include a statement to the effect that if the person applies to the SSAT for review and is dissatisfied with the SSAT’s decision, the person may apply to the AAT for of the SSAT decision.

1158.      The repeal of paragraph 138(1)(c) is appropriate in light of the amalgamation. It is not necessary to give notice of rights to AAT second review prior to a person making an application to the Tribunal for AAT first review. New subsections 43(5AA)–(5AC) of the AAT Act (Item 119 of Schedule 1 to the Bill) would require the Tribunal, upon completion of AAT first review, to notify persons of their right to AAT second review. This would ensure parties are aware of their further review rights in all cases.

1159.      Item 25 would repeal subsection 138(3), substituting a new subsection 138(3). Existing subsection 138(3) provides that paragraphs 138(1)(a) and (c) do not apply in relation to a decision that is not reviewable by the SSAT. New subsection 138(3) would provide the same exception but refer to the AAT.

Item 26—Division 3 of Part 4 (heading)

1160.      Item 26 would repeal the heading of Division 3 of Part 4 and substitute a new heading, ‘Part 4A—Review by the AAT’. This would be necessary as the existing heading refers to ‘Review by the SSAT’. The amendment reflects the creation of new Part 4A in the SSA Act, which would deal with AAT review, as distinct from Part 4, which would deal with internal review.

Item 27—Subdivision A of Division 3 of Part 4

1161.      Item 27 would repeal Subdivision A of Division 3 of Part 4. Subdivision A contains only section 139, which provides for the SSAT to be continued in existence by the Act. This provision would no longer be necessary given the abolition of the SSAT.

Item 28—Subdivision B of Division 3 of Part 4 (heading)

1162.      Item 28 would repeal the heading of Subdivision B of Division 3 of Part 4, ‘Review by the SSAT’, and substitute a new heading, ‘Division 1—Preliminary’.

Item 29—Before section 140

1163.      Item 29 would insert:

·         a new section 139, which would be a simplified outline for the new Part 4A

·         a new heading ‘Division 2—AAT first review’, and

·         a new heading ‘Subdivision A—Preliminary’.

1164.      New section 139 would assist readers by explaining the right to AAT first review and AAT second review of decisions under the social security law. It would also explain the interaction between the AAT Act and the SSA Act in relation to reviews by the AAT. In effect, the AAT Act applies unless it is modified by the SSA Act. New section 139 would also inform readers that the AAT Act provides for judicial review of AAT decisions in some circumstances.

Item 30—Subsection 140(1) and Item 31—Section 141

1165.      Item 30 would repeal subsection 140(1), substituting new subsection 140(1). Item 31 would repeal section 141, substituting new section 140A.

1166.      Existing subsection 140(1) defines the decisions to which Division 2 (as it is currently numbered) applies. These are the decisions which are reviewable by the SSAT. No policy change would be made to the types of decisions reviewable. However, in order to simplify the drafting, rather than listing the various types of decision, new subsection 140(1) would state that the Division applies to the review by the AAT of decisions under the social security law, including an employment pathway plan decision and a section 525B decision. New section 140A would insert definitions of ‘employment pathway plan decision’ and ‘section 525B decision’.

1167.      Existing section 141, which provides for the objective of the SSAT, is no longer necessary. The objectives of the amalgamated Tribunal as stated in new section 2A of the AAT Act (Item 1 of Schedule 1 to the Bill) would apply.

Item 32—Before section 142

1168.      Item 32 would insert a new heading before section 142, ‘Subdivision B—AAT first review: applications’.

Item 33—Section 142 (heading)

1169.      Item 33 would repeal the heading to section 142 and substitute a new heading, ‘Reviewable decisions’. This is necessary as the existing heading to section 142 refers to applications for review by the SSAT.

Item 34—Subsections 142(1) and (2)

1170.      Item 34 would repeal subsections 142(1) and (2) and substitute a new subsection 142(1).

1171.      Section 142 is the core provision conferring an entitlement on persons to apply to the SSAT for merits review of decisions under the social security law. Subsection 142(1) provides for applications to the SSAT in respect of decisions made on internal review under section 126 or 135. Subsection 142(2) provides for applications to the SSAT in respect of decisions made personally by the Secretary or the Chief Executive Centrelink. Both provisions are subject to section 144, which identifies certain decisions as non-reviewable.

1172.      The amendments would not change existing policy on the types of decisions that may be reviewed. New subsection 142(1) preserves the substance of existing subsection 142(1) and (2), but with simplified drafting and updated terminology to refer to applications being made to the AAT for AAT first review.

Item 35—Subsection 142(5)

1173.      Item 35 would repeal subsection 142(5). Subsection 142(5) purports to deal with circumstances where a decision made personally by the Secretary or Chief Executive Centrelink is the subject of an application for internal review under subsection 129(1). However, as subsection 129(4) provides that decisions made personally by the Secretary or Chief Executive Centrelink may not be the subject of applications under subsection 129(1), subsection 142(5) has no legal purpose.

Item 36—Section 143

1174.      Item 36 would repeal section 143 and substitute a new section 143.

1175.      Existing section 143 provides that the SSAT may only review an employment pathway plan decision if the application for review is expressed to be an application for review of that decision. New section 143 would preserve the effect of the existing provision, but refer to the AAT instead of the SSAT.

Item 37—Section 144

1176.      Item 37 would amend section 144 by omitting ‘SSAT’ and substituting ‘AAT’.

1177.      Section 144 provides a list of decisions that are not reviewable by the SSAT. The amendment would not affect existing policy on which decisions are not reviewable, but would simply update the provision to refer to the AAT.

Item 38—Paragraph 145(1)(c); Item 39—Subparagraph 145(4)(b)(i); Item 40—Subparagraph 145(4)(b)(ii); Item 41—After subsection 145(5)

1178.      Items 38 to 41 would amend section 145, which empowers the Secretary to declare, in certain circumstances, that a person who has applied to the SSAT for review of a decision may continue to receive a social security payment that was cancelled or reduced, pending the outcome of the review by the SSAT.

1179.      Item 38 would amend paragraph 145(1)(c) by omitting the phrase ‘to the SSAT under subsection 142(1) or (2) for review’ and substituting ‘for AAT first review’. The amendment would clarify that the power of the Secretary to make a payment pending review declaration is to be preserved in respect of AAT first review only.

1180.      Paragraph 145(4)(b) concerns when a payment pending review declaration ceases to have effect:

·         Item 39 would amend subparagraph 145(4)(b)(i) by inserting ‘AAT first’ before the term ‘review’. This would ensure that a payment pending review declaration ceases to have effect if an application for AAT first review is dismissed.

·         Item 40 would repeal subparagraph 145(4)(b)(ii) and substitute a new subparagraph 145(4)(b)(ii), with the effect that a payment pending review declaration ceases to have effect 13 weeks after the AAT makes a decision on AAT first review, unless the Secretary specifies an earlier day within that 13 week period for the declaration to cease.

1181.      The amendments would not change the existing policy underlying paragraph 145(4)(b).

1182.      Item 41 would insert a new subsection (5A) after subsection 145(5). New subsection 145(5A) would preserve the effect of existing subsection 159(2), which would be repealed (see Item 45 of Schedule 3). Subsection 159(2) provides that if a payment pending review declaration is in force in relation to a decision for which an application for review has been made, the SSAT Principal Member must take reasonable steps to ensure that the decision is reviewed as quickly as possible. New subsection 145(5A) would have the same effect, but would impose this obligation on the President of the AAT.

1183.      The Secretary’s power to declare that payment is to continue pending review is important to prevent potential disadvantage to applicants. The amendments would preserve this power in relation to AAT first reviews, as per existing policy.

Item 42—After section 146

1184.      Item 42 would insert:

·         a new heading ‘Subdivision C—AAT first review: relationship with AAT Act’

·         a new section 147 concerning the application and modification of the AAT Act with respect to new Division 2 (AAT first review)

·         a new heading ‘Subdivision D—AAT first review: other matters’, and

·         a new section 148 concerning procedure on receipt of application for AAT first review.

Subdivision C of Division 2—AAT first review: relationship with the AAT Act
New section 147—Application and modification of the AAT Act

1185.      New Subdivision C of Division 2 would comprise new section 147, which would define the relationship between the AAT Act and AAT first review under the SSA Act. Part IV of the AAT Act provides a general procedural framework for merits review. As a result of the amalgamation, it would no longer be necessary for the SSA Act to provide comprehensive procedural rules for external merits review. Part IV of the AAT Act would apply to the review of decisions made under the social security law by the amalgamated Tribunal, unless otherwise modified or excluded by another Act such as the SSA Act. To that end, new section 147 would include a table with 8 items, each of which would disapply or modify certain provisions of the AAT Act in relation to AAT first review of decisions which are reviewable under the social security law.

1186.      The purpose of the table would be to ensure that key procedures that currently apply to review of social security decisions by the SSAT would continue to apply to review of social security decisions by the amalgamated Tribunal.

1187.      Item 1 in the table would provide that paragraph 29(1)(d) of the AAT Act does not apply in respect of decisions to which Division 2 applies—that is, decisions subject to AAT first review. Paragraph 29(1)(d), read with subsection 29(2), imposes a standard time limit of 28 days for persons to apply for review to the AAT. There is currently no time limit for persons to apply for review by the SSAT (although the timeframe within which a person applies for review may have bearing on the date of effect of the Tribunal’s decision on review—see Item 8 of the table in new section 147 at Item 42 of Schedule 3 to the Bill). Accordingly, Item 1 in the table would preserve the existing policy, which promotes the accessibility of the Tribunal.

1188.      Item 2 in the table would provide that subsections 35(1) and (2) of the AAT Act—which provide the general rule that hearings must be in public—do not apply in respect of decisions subject to AAT first review. This would preserve the policy behind existing section 168, which requires SSAT hearings to be in private. Section 168 would be amended by Items 54 to 57 of Schedule 3 to apply to the AAT on AAT first review.

1189.      Item 3 in the table would provide that the summons power in section 40A of the AAT Act does not apply in respect of decisions subject to AAT first review. Instead, the AAT on AAT first review would be able to exercise the information gathering powers currently exercised by the SSAT under existing sections 165, 165A and 166, as amended at Items 48 to 50 of Schedule 3 to apply to the AAT on AAT first review. This would preserve existing policy.

1190.      Item 4 in the table would provide that the power to make stay orders in subsection 41(2) of the AAT Act does not apply in respect of decisions subject to AAT first review. This would preserve existing policy, as the SSAT does not have the power to make stay orders. This is appropriate given that the Secretary may declare in certain cases that payment is to continue pending review under amended section 145 (Items 38 to 41 of Schedule 3).

1191.      Item 5 in the table concerns the application of subsection 43(1) of the AAT Act in respect of decisions subject to AAT first review (other than an ‘employment pathway plan decision’ or a ‘section 525B decision’), to the extent that subsection 43(1) empowers the AAT to exercise all the powers and discretions conferred on the person who made the decision which is under review. Item 5 would have the effect that the AAT on AAT first review may not exercise the powers conferred on the Secretary by the social security law under the provisions listed in paragraphs (a) to (i) in that Item. This would preserve the effect of existing section 151 of the SSA Act. Items 68 and 70 of Schedule 3 to the Bill would insert definitions of ‘employment pathway plan decision’ and ‘section 525B decision’ (which would link to new section 140A, at Item 31 of Schedule 3 to the Bill).

1192.      Item 6 of the table would modify the application of subsection 43(1) of the AAT Act in relation to AAT first review of an ‘employment pathway plan decision’ or a ‘section 525B decision’. Item 6 would have the effect that the AAT on AAT first review of an ‘employment pathway plan decision’ or a ‘section 525B decision’:

·         may not exercise all the powers and discretions conferred on the person who made the decision which is under review, and

·         may not vary the decision under review, or set it aside and substitute a new decision (that is, the AAT would only be empowered to affirm the decision, or set it aside and remit it to the original decision‑maker).

1193.      Item 6 in the table would preserve the effect of existing section 150 and subsection 151(4) of the SSA Act.

1194.      Item 7 in the table would provide that subsections 43(2) and (2A) of the AAT Act—which concern the notification by the Tribunal of its decision on review and reasons—do not apply in respect of decisions subject to AAT first review. Instead, new section 178 would preserve the effect of the existing powers of the SSAT in this respect (Item 64 of Schedule 3). Those powers are currently set out in Subdivision E of Division 4 of Part 4 (section 177) of the SSA Act.

1195.      Item 8 in the table would modify the application of subsection 43(6) of the AAT Act in relation to the date of effect of an AAT decision on AAT first review, other than an AAT decision in relation to an employment pathway plan decision. Subsection 43(6) of the AAT Act provides that where the AAT varies the decision under review, or sets it aside and substitutes a new decision, the Tribunal’s decision will take effect from the date on which the original decision had effect, unless the Tribunal orders otherwise. Existing section 152 of the SSA Act has the result that where a person applies to the SSAT for review of a decision more than 13 weeks after receiving notice of a decision, if the SSAT varies the decision, or sets it aside and substitutes a new decision with the result that a person is entitled to a particular payment or benefit, the SSAT’s decision will only take effect from the date on which the application is made (unless the Tribunal orders otherwise). This policy provides an incentive for persons to make timely applications for review. Item 8 of the table would preserve the existing policy and apply it in relation to AAT decisions on AAT first review.

Subdivision D of Division 2—AAT first review: other matters

1196.      New Subdivision D of Division 2 would deal with other procedural matters which are not provided for in the AAT Act, but which should be retained for the purposes of AAT first review of social security decisions.

Section 148—Procedure on receipt of application for AAT first review

1197.      New section 148 would replicate the substance of existing subsection 157(4) of the SSA Act. It would empower the AAT to request the Secretary to provide documents to the Tribunal earlier than the 28 day period required under subsection 37(1) of the AAT Act. The Secretary would be required to take reasonable steps to comply with such a request. New section 148 would not affect, and would be additional to, the power of the AAT to shorten the time frames for lodging documents under section 37(1A) of the AAT Act.

Item 43—Sections 149 to 156

1198.      Item 43 would repeal sections 149 to 156. Existing sections 149 to 156 provide for:

·         SSAT review powers—section 149

·         SSAT review powers for Employment Pathway Decisions—section 150

·         the powers of the SSAT—section 151

·         the date of effect of SSAT decisions (other than Employment Pathway decisions)—section 152

·         the date of effect of SSAT decisions (Employment Pathway decisions)—section 153

·         application requirements—section 154

·         variation of decision before review completed—section 155, and

·         parties to SSAT review—section 156.

1199.      Following the amalgamation, the content of existing sections 149 to 156 would be substantially covered by Part IV of the AAT Act, modified as necessary by the table in new section 147 (Item 42 of Schedule 3) and the new and amended provisions in the SSA Act as set out in Schedule 3 to the Bill. This would ensure that existing procedures with respect to SSAT reviews would apply to AAT first review of social security decisions.

1200.      Existing section 149 would be covered by the standard rules in subsection 43(1) of the AAT Act, as well as new sections 177 and 183 of the SSA Act (Items 64 and 66 of Schedule 3).

1201.      Existing section 150 would be covered by subsection 43(1) of the AAT Act as modified by Item 6 of the table in new section 147 of the SSA Act.

1202.      Existing section 151 would be covered by Items 5 and 6 of the table in new section 147 of the SSA Act.

1203.      Existing section 152 would be covered by covered by the standard rules in subsections 43(5A) and (5B) of the AAT Act and by Item 8 of the table in new section 147 of the SSA Act.

1204.      Existing section 153 would be covered by the standard rules in section 43 of the AAT Act.

1205.      Existing section 154 would be covered by sections 29 and 29AA of the AAT Act as amended or inserted (Items 46 to 51 of Schedule 1 of the Bill).

1206.      Existing section 155 would be covered by new section 182 of the SSA Act (Item 66 of Schedule 3).

1207.      Existing section 156 would be covered by the standard rules in section 30 of the AAT Act.

Item 44—Division 4 of Part 4 (heading)

1208.      Item 44 would repeal the heading ‘Division 4—Procedures for review by the SSAT’ as it is no longer necessary.

Item 45—Subdivisions A, B and BA of Division 4 of Part 4

1209.      Item 45 would repeal Subdivisions A, B and BA of Division 4 of Part 4. These Subdivisions currently provide for the following matters in respect of SSAT review:

·         preliminary procedures for SSAT review (Subdivision A, sections 157 to 160)

·         submissions from parties other than the Secretary (Subdivision B, sections 160A to 163), and

·         submissions from the Secretary (Subdivision BA, section 163A).

1210.      Sections 157, 158 and 160 in Subdivision A provide requirements around the receipt of applications, including notification to persons whose interests are affected; the obligations on the Secretary to provide the SSAT with the statement of reasons for the decision under review and other relevant documents; and the provision of documents to the parties to the review. Sections 29-29AC, 37 and 38AA of the AAT Act, as amended (Items 46-51 and 74‑87 of Schedule 1 to the Bill), would cover the essential elements of Subdivision A. Certain more minor aspects of Subdivision A —such as the delivery of applications to the Tribunal if lodged with the Department, and the making of arrangements for hearings—would not be replicated as these matters can be handled administratively.

1211.      The requirements in Subdivisions B and BA around the making of submissions by agency and non-agency parties would be preserved in new section 39AA of the AAT Act (Item 90 of Schedule 1 to the Bill).

Item 46—Subdivision BB of Division 4 of Part 4 (heading)

1212.      Item 46 would repeal the heading of Division 4 of Part 4 ‘Subdivision BB—Other evidence provisions’ as it would no longer be necessary in Part 4 as restructured.

Item 47—Section 164

1213.      Item 47 would repeal section 164, which provides that the SSAT may take evidence on oath or affirmation for the purposes of a review decision. Section 164 would no longer be necessary as this matter would be covered by subsection 40(1) of the AAT Act.

Item 48—Subsection 165(1)

1214.      Item 48 would repeal subsection 165(1), substituting a new subsection 165(1).

1215.      Existing subsection 165(1) provides that the Principal Member may ask the Secretary to provide the SSAT with information or a document that the Secretary has and that is relevant to the review of a decision. New subsection 165(1) would retain the substance of the existing provision but update the terminology to refer to the AAT instead of the Principal Member of the SSAT.

1216.      The purpose of Items 48 to 50 would be to preserve the existing information gathering powers of the SSAT, which are currently found in sections 165, 165A and 166 of the SSA Act. These information gathering powers are more appropriate to the conduct of AAT first reviews than the summons power in section 40A of the AAT Act. In particular, it would assist the amalgamated Tribunal to continue to have access to the compulsory information gathering powers of the Secretary, especially in circumstances where information is held by third parties subject to strict confidentiality requirements (for example, the Australian Taxation Office).

Item 49—Sections 165A to 165C

1217.      Item 49 would repeal sections 165A, 165B and 165C and insert a new section 165A.

1218.      Existing section 165A empowers the SSAT Principal Member to require a person to provide information or documents relevant to a review of a decision, and makes it an offence to fail to comply with a notice to give information or produce documents.

1219.      New section 165A would provide the same power to the AAT. New section 165A would similarly make it an offence to fail to comply with a notice under section 165A. While the privilege against self-incrimination applies in common law, for the avoidance of doubt, new subsection 165A(3) would insert a specific defence relating to self‑incrimination to ensure that the privilege would not be abrogated. The defence would not preclude or remove the power to compel information that is not self-incriminatory from an individual. The defence also would not preclude the individual from having to provide information or produce documents that may incriminate others. It is noted also that legal professional privilege applies in common law and has an equivalent in the Evidence Act. New section 165A is not intended to abrogate legal professional privilege. Finally, the penalty for the offence would be increased to imprisonment for 12 months or 60 penalty units. This penalty would be amended, consistently with other offence provisions in the Bill, to reflect the seriousness of conduct that undermines the Tribunal’s statutory review function.

1220.      The note to new section 165A refers to Item 3 of the table in section 147 (Item 42 of Schedule 3). Item 3 provides that the summons power in section 40A of the AAT Act does not apply to AAT first review. New section 165A would provide an equivalent power.

1221.      Sections 165B and 165C, which deal with the inspection and copying of documents, and the retention of documents respectively, are unnecessary. To the extent these provisions cover Tribunal members, they do not add to the Privacy Act. To the extent they concern access to documents by the persons who produced the documents to the Tribunal, this can be dealt with administratively.

Item 50—Subsection 166(1)

1222.      Item 50 would repeal subsection 166(1) and substitute a new subsection 166(1). Existing subsection 166(1) provides that the Principal Member may request the Secretary to exercise the Secretary’s power under section 192 to obtain information or documents relevant to a review from another person. New subsection 166(1) would preserve the existing power, but update the terminology to refer to the AAT acting in relation to AAT first review.

Item 51—Subdivision BC of Division 4 of Part 4

1223.      Item 51 would repeal Subdivision BC of Division 4 of Part 4, which comprises section 166A (directions hearings) and section 166B (power to make decisions by consent following a directions hearing). Subdivision B is unnecessary, as these matters would be covered by sections 33 and 42C of the AAT Act, respectively.

Item 52—Subdivision C of Division 4 of Part 4 (heading)

1224.      Item 52 would repeal the heading of Subdivision C of Division 4 of Part 4 (‘The hearing’) as it is no longer necessary.

Item 53—Section 167

1225.      Item 53 would repeal section 167, which concerns the procedure at a hearing, since the same matters would be covered by section 33 of the AAT Act.

Item 54—Subsection 168(1); Item 55—Subsection 168(2); Item 56—Subsection 168(3); Item 57—At the end of section 168

1226.      Items 54 to 57 would amend section 168. Existing section 168 requires that SSAT hearings must be held in private, with the Principal Member empowered to give directions as to who may be present, having regard to the wishes of the parties and the need to protect their privacy.

1227.      Item 54 would insert the term ‘AAT first review’ into subsection 168(1), which would limit the scope of the provision accordingly. Items 55 and 56 would update the terminology in subsections 168(2) and (3) to refer to the AAT rather than the Principal Member.

1228.      Item 57 would insert a note to section 168 which would refer to Item 2 of the table in section 147 (Item 42 of Schedule 3). Item 2 would provide that subsections 35(1) and (2) of the AAT Act (which provide the general rule that hearings must be in public) do not apply.

1229.      The amendments would preserve existing policy. The personal nature of the information typically disclosed in social security proceedings means applicants may be concerned to protect their privacy. Private hearings accordingly should be preserved in AAT first reviews as one means of ensuring that the amalgamated Tribunal is accessible and responsive to the needs of applicants.

Item 58—Subdivision D of Division 4 of Part 4 (heading)

1230.      Item 58 would repeal the heading of Subdivision D of Division 4 of Part 4 (‘Other procedural matters’), as it is no longer necessary.

Item 59—Sections 170 to 175

1231.      Item 59 would repeal sections 170 to 175, since the same matters would be adequately covered by the AAT Act:

·         section 170 (adjournment of hearings) would be covered by paragraph 40(1)(c) of the AAT Act

·         sections 171 and 172 (dismissal of applications) would be covered by amended section 42A and section 42B of the AAT Act (Items 108-115 of Schedule 1 to the Bill)

·         section 173 (presiding member) would be covered by amended section 19A of the AAT Act (Item 27 of Schedule 1 to the Bill)

·         section 174 (resolving disagreements) would be covered by amended section 42 of the AAT Act (Item 107 of Schedule 1 to the Bill), and

·         section 175 (directions as to procedure for hearings) would be covered by section 33 of the AAT Act.

Item 60—Subsection 176(1); Item 61—Subsection 176(2); Item 62—Subsection 176(3); Item 63—Subsections 176(3) and (4)

1232.      Items 60 to 63 would amend section 176 to omit references to the SSAT and replace them with the AAT, as well as to confine the scope of section 176 to AAT first reviews.

1233.      Existing section 176 provides that, notwithstanding the general rule that parties to a review must bear their own expenses, the SSAT may determine that the Commonwealth is required to pay reasonable travel or accommodation costs incurred by a party, or the cost of provision of a medical service arranged by the SSAT, in relation to a review.

1234.      The amendments would preserve existing policy by permitting the AAT to make such a determination in relation to AAT first reviews.

Item 64—After section 176

1235.      Item 164 would insert new sections 177 and 178 after section 176.

1236.      New section 177 would require the Tribunal on AAT first review to assess the rates at which social security entitlements are payable to a person following a decision on review, or request the relevant agency head to do so. This would preserve the effect of existing subsections 149(2)–(3), which apply to the SSAT.

1237.      New section 178 would deal with the notification of decisions and reasons for AAT first review. It would largely preserve the effect of existing Subdivision E of Division 4 of Part 4 (section 177). It would apply instead of subsections 43(2)–(2A) of the AAT Act (see Item 7 of the table at new section 147, as inserted by Item 42 of Schedule 3 to the Bill).

1238.      New section 178 would preserve the following key requirements applicable to the SSAT, but would apply them to the AAT making a decision on AAT first review:

·         the AAT would be required to issue a written decision within 14 days after making the decision

·         where the AAT affirms the decision under review, it may give reasons either orally or in writing.

·         where the AAT makes a decision that is other than to affirm the decision under review, it must provide written reasons within 14 days, and

·         where oral reasons are provided, a party may request written reasons within 14 days, and the Tribunal must respond within 14 days.

1239.      By maintaining 14 day timeframes for decisions and reasons, new section 178 would promote the quick conduct of review on AAT first review, which is an important feature of the SSAT.

1240.      The requirement in existing subsection 177(2) for the Tribunal to provide notice of further review rights would be covered by new subsections 43(5AA) to (5AC) of the AAT Act (Item 119 to Schedule 1 of the Bill).

Item 65—Subdivisions E, F and G of Division 4 of Part 4

1241.      Item 65 would repeal Subdivisions E, F and G of Division 4 of Part 4.

1242.      Subdivision E, comprising section 177, which concerns the notification of decisions and reasons for SSAT review, would be preserved to the extent appropriate by new section 178 (Item 64 of Schedule 3).

1243.      Subdivision F, comprising section 177A, which concerns correction of errors in decisions or statements of reasons, would be covered by the equivalent power in section 43AA of the AAT Act.

1244.      Subdivision G, comprising sections 177B to 177D, which concern non-disclosure orders, would be covered by the equivalent power in subsections 35(3)–(4) of the AAT Act.

Item 66—Division 5 of Part 4

1245.      Item 66 would repeal Division 5 of Part 4 and substitute:

·         a new heading ‘Division 3—AAT second review’

·         a new heading ‘Subdivision A—AAT second review: applications’

·         a new section 179 concerning applications for AAT second review

·         a new heading ‘Subdivision B—AAT second review: relationship with AAT Act’

·         a new section 180 with a table that would modify the AAT Act in relation to second review

·         a new heading ‘Division 4—Matters relating to AAT first review and AAT second review’, and

·         new sections 181 to 183.

1246.      Existing Division 5 concerns review by the AAT. It would be repealed, as its effect would be preserved in new Divisions 3 and 4, which concern AAT second review.

New section 179—Application for AAT second review

1247.      Existing section 179 is the core provision conferring an entitlement on persons to apply to the AAT for review of a decision of the SSAT under the social security law. New section 179 would provide that an application may be made for AAT second review of a decision on AAT first review under subsection 43(1) of the AAT Act.

1248.      The amendments would not change existing policy on the types of decisions that may be reviewed. New section 179 preserves the substance of existing subsections 179(1)–(3), but with simplified drafting and updated terminology to refer to applications being made to the AAT for AAT first review.

New section 180—Application and modification of AAT Act

1249.      New section 180 would insert a table with 5 items, each of which would modify certain provisions of the AAT Act in relation to AAT second review of decisions under the social security law. The purpose of the table would be to preserve the effect of existing Subdivision C of Division 5 of the SSA Act. The provisions in existing Subdivision C modify the AAT Act so that its intended operation in respect of review of SSAT decisions is clear. This is necessary since the AAT Act is not primarily drafted to cover the situation where the decision under review is a decision by another Tribunal, as opposed to an agency decision‑maker.

1250.      Item 1 in the table would modify paragraph 29AC(1)(b) of the AAT Act—notice of applications—so that it has the effect that parties to an AAT first review (including the Secretary) are notified of an application for AAT second review. This would preserve the effect of existing section 184 of the SSA Act.

1251.      Item 2 in the table would modify paragraph 30(1)(b) of the AAT Act—parties to proceedings—so that it has the effect that parties to an AAT first review (including the Secretary) are parties to an AAT second review. This would preserve the effect of existing section 185 of the SSA Act.

1252.      Items 3 and 4 in the table would modify section 41 of the AAT Act—stay orders—so that it has the effect that:

·         the AAT on AAT second review may stay the decision that was the subject of AAT first review and/or the decision made by the AAT on AAT first review, and

·         all of the parties to the AAT first review have the opportunity to be heard under section 41 in relation to an application to the AAT for a stay order on AAT second review.

1253.      Items 3 and 4 in the table would preserve the effect of existing section 188 of the SSA Act.

1254.      Item 5 in the table would modify subsection 42A(2) of the AAT Act—dismissal of application for failure to appear—so that it has the effect that an application for AAT second review is not dismissed because of the failure of the Secretary to appear. This would preserve the effect of existing section 189 of the SSA Act.

1255.      The table would not preserve the effect of existing sections 186 and 187 of Subdivision C of Division 5 of the SSA Act, since sections 37, 38 and 38AA of the AAT Act (as amended at Items 73-87 of Schedule 1 to the Bill) would prescribe appropriate requirements around the provision of documents on AAT second review.

New section 181—Settlement of proceedings before the AAT

1256.      New section 181 would provide that the Secretary may settle debt proceedings before the AAT, with the result that the application for review would be dismissed. This provision is intended to replace existing section 182. New section 181 would apply on AAT first review and on AAT second review. This provides the flexibility to the Secretary to settle matters at any stage.

New section 182—Variation or substitution of decision before AAT review determined

1257.      New section 182 would preserve the effect of existing section 155 and would deal with the effect of variation by an officer of a decision under review by the AAT. New section 182 would provide that if the officer varies a decision, or sets it aside and substitutes a new decision, the application for review is taken to be an application for the review as varied or substituted. The applicant may choose to continue with the review or may notify the AAT (under subsections 42A(1A) or (1AA) of the AAT Act) that the application is discontinued or withdrawn.

New section 183—Secretary or AAT may treat event as having occurred

1258.      New section 183 would preserve the effect of existing subsections 159(4) and 179(4).

1259.      New subsection 183(1) would apply on AAT first review. It would provide that if the AAT sets aside a decision, and the Secretary, or the AAT, is satisfied that an event that did not occur would have occurred if the decision under review had not been made, the Secretary or AAT may, if satisfied it is reasonable to do so, treat the event as having occurred for the purposes of the social security law.

1260.      New subsection 183(2) would apply on AAT second review. It would provide that if the AAT sets aside a decision, and the Secretary is satisfied that an event that did not occur would have occurred if the decision under review had not been made, the Secretary may, if satisfied it is reasonable to do so, treat the event as having occurred for the purposes of the social security law.

1261.      While not typically used in practice, this power might be used, for example, to deem that a particular application was lodged by a person so that the Secretary could then determine whether the person was entitled to some other social security law payment.

Item 67—Sections 253 and 254

1262.      Item 67 would repeal sections 253 and 254, which are savings provisions in relation to reviews in respect of which applications were made prior to 20 March 2000. These sections no longer serve any purpose.

Item 68—Subclause 1(1) of Schedule 1

1263.      Item 68 would insert new definitions into the SSA Act:

·         ‘AAT Act’

·         ‘AAT first review’

·         ‘AAT second review’, and

·         ‘employment pathway plan decision’.

1264.      ‘AAT first review’ would refer to review of decisions in respect of which applications may be made under section 142 (Items 33-35 of Schedule 3 to the Bill). This would comprise those applications which may currently be made to the SSAT.

1265.      ‘AAT second review’ would refer to review of decisions in respect of which applications may be made under section 179 (Item 68 of Schedule 3). This would comprise those applications which may currently be made to the AAT for review of decisions of the SSAT.

1266.      The new definitions of ‘AAT first review’ and ‘AAT second review’ would facilitate the maintenance of the existing two-tiered review process in respect of social security decisions, but with this process occurring within the amalgamated Tribunal. The definitions would also facilitate the preservation of differentiated procedures on AAT first review and AAT second review, as the AAT Act and the SSA Act would prescribe procedural rules specific to each category. This is consistent with existing policy, as in some respects the procedures of the AAT and the former SSAT in reviewing social security matters differ, based on the particular characteristics of the SSAT’s caseload. There would be no policy change on the types of decisions that may be reviewed.

1267.      The term ‘employment pathway plan decision’ would have the meaning given in section 140A (Item 31 of Schedule 3).

Item 69—Subclause 1(1) of Schedule 1 (definition of Principal Member)

1268.      Item 69 would repeal the definition of ‘Principal Member’, which would no longer be necessary.

Item 70— Subclause 1(1) of Schedule 1

1269.      Item 70 would insert a definition of ‘section 525B decision’. This term would have the meaning given in section 140A (Item 31 of Schedule 3).

Item 71— Subclause 1(1) of Schedule 1 (definition of SSAT)

1270.      Item 71 would repeal the definition of ‘SSAT’, which would no longer be necessary.

Item 72—Schedules 3 and 4

1271.      Item 72 would repeal Schedules 3 and 4 of the SSA Act.

1272.      Schedule 3 concerns the constitution and membership of the SSAT, including matters such as appointments and terms and conditions of members, the constitution of the Tribunal for reviews, and the staff of the Tribunal. Schedule 4 contains forms of oath or affirmation to be taken by SSAT members.

1273.      These Schedules would no longer be necessary in light of the abolition of the SSAT.


Schedule 4—Child support amendments

Overview

1274.      Schedule 4 to the Bill would amend the CSA Act and the CSRC Act to support the amalgamation.

1275.      Key features of Schedule 4 to the Bill include:

·         amendments to transfer the merits review jurisdiction of the SSAT to the AAT, with existing rights to merits review being preserved (including second review by the AAT of SSAT decisions, for those limited matters where it is currently available)

·         new defined terms of ‘AAT first review’ and ‘AAT second review’ corresponding to existing SSAT and AAT reviews of child support matters respectively

·         amendments to preserve existing procedures for merits review of child support matters, including amendments to modify the procedures generally applicable under the AAT Act

·         amendments to enable persons to seek merits review where the Child Support Registrar has refused to make a departure determination under sections 98E or 98R of the CSA Act because the issues are too complex. This would make the expertise of the amalgamated Tribunal, and its economical and accessible review function, available to parties in complex child support disputes, whereas under existing policy they are required to seek an outcome in the courts.

·         amendments to streamline pathways for judicial review, so that judicial review of AAT decisions in relation to child support would be conducted by the Federal Circuit Court and Federal Court under the AAT Act. This would be a departure from existing policy whereby various courts have jurisdiction to hear appeals from SSAT decisions under Division 3 of Part VIII of the CSRC Act, and

·         consequential amendments, including to replace references to the SSAT with references to the AAT.

1276.      References to the ‘Registrar’ in relation to Schedule 4 are to the Child Support Registrar, unless otherwise stated.

Amendments to the Child Support Assessment Act 1989

Item 1—Subsection 5(1)

1277.      Item 1 would insert a definition of the ‘AAT Act’ into section 5.

Item 2—Paragraph 33(4)(b), Item 3—Subparagraph 34(2)(b)(ii), Item 4—Paragraph 44(6)(b) and equivalents (Items 7, 14, 23 and 25)

1278.      Item 2 would amend paragraph 33(4)(b) by omitting reference to the SSAT and substituting references to the AAT and the AAT Act.

1279.      Existing paragraph 33(4)(b) requires that when the Registrar notifies an applicant of a decision to which an objection may be made, the notice must state that if the applicant is aggrieved by the later decision on objection, the applicant may apply to the SSAT. The amendment would provide for a person to be notified of their right to apply to the AAT, subject to the CSRC Act and the AAT Act, for review of the Registrar’s decision.

1280.      The following Items would make the same amendment to other provisions in the Act that currently require notification of a right of review to the SSAT:

·         Item 3—Subparagraph 34(2)(b)(ii)

·         Item 4—Paragraph 44(6)(b)

·         Item 7—Paragraphs 63AB(2)(b), 63AD(5)(b), 63AE(3)(b), 64AB(3)(b), 64AH(3)(b) and 66C(2)(b)

·         Item 14—Paragraphs 80G(4)(b) and 96(2)(b)

·         Item 23—Paragraph 146B(5)(c), and

·         Item 25—Paragraphs 146E(6)(b) and 151C(5)(b).

1281.      These amendments would preserve existing policy that a person must be notified of their right to external merits review when notified of a decision on internal review.

Item 5—Subsection 54L(1) and Item 6—Subsections 54L(2) and (3)

1282.      Items 5 and 6 would amend section 54L to replace references to the SSAT with the AAT.

1283.      Existing section 54L ensures that reviews of care percentage decisions under family assistance law will apply for child support purposes. Subsection 54L(2) deals with when the SSAT reviews a decision under section 113 of the FAA Act. Subsection 54L(3) deals with when the AAT reviews a decision under the AAT Act. The provisions are otherwise identical. Following amalgamation only one subsection would be needed.

1284.      Item 6 would insert new subsection 54L(2) as a single provision to ensure that an AAT review of a care percentage decision under the family assistance law would apply for child support purposes. Item 5 would renumber the subsections in section 54L. No policy change is intended.

Item 7—Paragraphs 63AB(2)(b), 63AD(5)(b), 63AE(3)(b), 64AB(3)(b), 64AH(3)(b) and 66C(2)(b)

1285.      See Item 2 in relation to Item 7.

Item 8—Subsection 70(1) and Item 9—Section 72

1286.      Item 8 would repeal subsection 70(1) and substitute new subsections 70(1) and (1A). Item 9 would repeal section 72 and substitute new section 72.

1287.      Existing section 70 ensures that notices of administrative assessment from the Registrar are evidence of the proper making of the assessment, including that it is correct, except in proceedings under Part VIIA or Subdivision B of Division 3 of Part VIII of the CSRC Act. Proceedings under Part VIIA of the CSRC Act are SSAT proceedings. Proceedings under Subdivision B of Division 3 of Part VIII of the CSRC Act are court appeals from SSAT proceedings.

1288.      Existing section 72 provides that, except in an appeal under Part VIIA or Subdivision B of Division 3 of Part VIII of the CSRC Act, the validity of an assessment is not affected because any provisions of the Act have not been complied with.

1289.      Items 8 and 9 would update references in sections 70 and 72 in light of the transfer of merits review jurisdiction in child support matters from the SSAT to the AAT:

·         the reference to proceedings under Part VIIA would become a reference to AAT first review or AAT second review (these definitions are inserted at Item 26 of Schedule 4 to the Bill), and

·         the reference to Subdivision B of Division 3 of Part VIII would become a reference to a court appeal under Part IVA of the AAT Act (consequential to the changes to judicial review pathways at Item 66 of Schedule 4 to the Bill).

1290.      No policy change is intended as a result of the proposed amendments to sections 70 and 72.

Item 10—Paragraph 75(3)(c) and Item 11—Paragraph 75(4)(f)

1291.      Item 10 would repeal paragraph 75(3)(c) and substitute new paragraph 75(3)(c). Item 11 would repeal paragraph 75(4(f) and substitute new paragraph 75(4)(f).

1292.      Existing section 75 has the effect that the Registrar may, at any time, amend any administrative assessment of child support. Paragraph 75(3)(c) permits amendment despite the fact that related proceedings are pending in a court or in the SSAT. Paragraph 75(4)(f) clarifies that the Registrar may amend any administrative assessment for the purpose of giving effect to a decision of a court having jurisdiction under the CSRC Act, or to a decision of the SSAT.

1293.      Items 10 and 11 would update paragraph 75(3)(c) and paragraph 75(4)(f) to refer to:

·         the AAT instead of the SSAT, and

·         court appeals under the AAT Act instead of under the CSRC Act (consequential to the changes to judicial review pathways at Item 66 of Schedule 4 to the Bill).

1294.      No policy change is intended as a result of the proposed amendments to section 75.

Item 12—Subparagraph 76(3)(a)(ii) and Item 13—Paragraph 76(3)(b)

1295.      Item 12 would amend subparagraph 76(3)(a)(ii) and Item 13 would repeal paragraph 76(3)(b).

1296.      Existing section 76 deals with the obligation on the Registrar to give notice of an administrative assessment to persons whose interests are affected by the assessment.

1297.      Existing paragraph 76(3)(a) requires the Registrar to notify the person of the right to object to the administrative assessment and the right, if aggrieved by the decision on objection, to apply to the SSAT for review. Item 12 would amend subparagraph 76(3)(a)(ii) to refer to the AAT instead of the SSAT.

1298.      Existing paragraph 76(3)(b) requires that when the Registrar gives notice to persons of an administrative assessment, the notice must include a statement to the effect that if the person is aggrieved by a decision of the SSAT on review of a care percentage decision, the person may apply to the AAT for review of the SSAT decision.

1299.      The repeal of paragraph 76(3)(b) is appropriate in light of the amalgamation. It is not necessary to give notice of rights to AAT second review prior to a person making an application to the Tribunal for AAT first review. New subsections 43(5AA)–(5AC) of the AAT Act (Item 119 of Schedule 1 to the Bill) would require the amalgamated Tribunal, upon completion of first review of a care percentage decision, to notify persons of their right to second review by the AAT. This would ensure parties are aware of their further review rights in all cases.

Item 14—Paragraphs 80G(4)(b) and 96(2)(b)

1300.      See Item 2 in relation to Item 14.

Items 15 to 19

1301.      Items 15 to 19 would amend the CSA Act to enable merits review where the Registrar refuses to make a departure determination under Part 6A of the Act because the issues are too complex.

1302.      Sections 98E and 98R of the CSA Act currently permit the Registrar to refuse to make a departure determination because the issues are too complex. The complexity typically arises as a result of evidentiary issues as well as the financial structures used by some persons. The Registrar’s refusal may be either the original decision to which an objection is disallowed, or the decision on an objection to an original decision. At present, in such circumstances persons whose interests are affected by the refusal are required to apply to a court for a determination.

1303.      It is no longer appropriate that this category of complex matters is precluded from external merits review by the Tribunal. The existing system reflects the evolution of the child support regime from its inception when matters were dealt with in the courts. The SSAT has developed considerable expertise in respect of child support matters since this jurisdiction was conferred on it with effect from 1 January 2007. Allowing persons to seek merits review in the amalgamated AAT, instead of seeking recourse in a court, would be advantageous:

·         Tribunal proceedings are more accessible, informal and cheaper than court proceedings

·         the inquisitorial nature of Tribunal proceedings is better suited to parties who do not have legal representation, which is the case for most parties in child support matters

·         the application would likely be resolved more quickly by the Tribunal than a court

·         the significant information-gathering powers of the Tribunal would be available to enable the member hearing the review to obtain the evidence to determine the complex issues at stake, and

·         Tribunal members include qualified accountants with the skills to analyse complex financial evidence.

1304.      The proposed repeal of subsection 89(2) of the CSRC Act (Item 52 of Schedule 4 to the Bill) would enable persons to seek merits review by the AAT. Items 15 to 19 would make related amendments to the CSA Act to give effect to the new merits review pathway for parties where the Registrar has refused to make a departure determination because the issues are too complex.

Item 15—Section 98E and Item 17—Section 98R

1305.      Item 26 would repeal section 98E and substitute new section 98E. Item 31 would repeal section 98R and substitute new section 98R.

1306.      Existing section 98E concerns departure determination proceedings initiated by a liable parent or carer entitled to child support. It permits the Registrar to refuse to make a departure determination under Part 6A of the Act if the Registrar is satisfied that the issues raised by the application are too complex. In such circumstances, the Registrar may recommend that a person apply to a court for a determination. Existing section 98R has the same effect as section 98E, but concerns a departure determination process initiated by the Registrar.

1307.      New subsections 98E and 98R would continue to permit the Registrar to refuse to make a departure determination if the issues were too complex, however, the Registrar would no longer recommend that persons apply to a court for a determination in such circumstances. Instead, persons would be notified of their right to merits review by the amalgamated Tribunal under amended paragraph 98JA(2)(b) and amended paragraph 98RA(2)(b) (Items 16 and 18).

Item 16—Paragraph 98JA(2)(b) and Item 18—Paragraph 98RA(2)(b)

1308.      Item 30 would repeal paragraph 98JA(2)(b) and substitute new paragraph 98JA(2)(b). Item 32 would repeal paragraph 98RA(2)(b) and substitute new paragraph 98RA(2)(b).

1309.      Existing paragraphs 98JA(2)(b) and 98RA(2)(b) require that where the Registrar has refused to make a departure determination under Part 6A—either on the initiative of a liable parent or carer, or on the Registrar’s own initiative—the Registrar must notify parties of their rights to object to the refusal. The notification must include a statement that if the party is aggrieved by the later decision on the objection, they may apply to the SSAT for review, except if the Registrar’s original decision was to refuse to make a determination because the issues are too complex. In the event of a refusal because of complex issues, existing paragraphs 98JA(2)(b) and 98RA(2)(b) provide for notification of a person’s right to apply to a court.

1310.      New paragraphs 98JA(2)(b) and 98RA(2)(b) would ensure that persons are notified of their right to review by the AAT in respect of all refusals by the Registrar to make a departure determination under Division 2 and Division 3 of Part 6A. It would no longer be necessary for the provisions to single out matters involving complex issues, as the merits review pathway would be the same for all decisions to make or refuse to make a departure determination.

Item 19—paragraphs 116(1)(a), (aa) and (ab)

1311.      Item 19 would repeal paragraphs 116(1)(a), (aa) and (ab).

1312.      Existing paragraphs 116(1)(a), (aa) and (ab) enable a liable parent or a carer entitled to child support to apply to a court having jurisdiction under the CSRC Act for an order if the Registrar has refused to make a departure determination under sections 98E or 98R because the issues are too complex. Specifically:

·         paragraph 116(1)(a) applies where the Registrar has decided that the issues are too complex, and the objection to this decision is disallowed (even if the Registrar has taken all action required by Part 6A and disallowed the objection because the Registrar was not satisfied of the matters in section 98C or section 98L)

·         paragraph 116(1)(aa) applies where the Registrar has made a decision after considering the matters in section 98C or 98L, but on objection the Registrar decides that the issues are too complex to consider those matters, and

·         paragraph 116(1)(ab) applies where the SSAT sets aside a decision of the Registrar on the merits and substitutes it with a decision that the issues are too complex. In practice, this does not occur.

1313.      The repeal of paragraphs 116(1)(a), (aa) and (ab) would follow from the proposed repeal of subsection 89(2) of the CSRC Act (Item 52 of Schedule 4 to the Bill). The repeal of subsection 89(2) would ensure that a person would be entitled to merits review by the AAT in the circumstances envisaged in paragraphs 116(1)(a), (aa) and (ab). As a result, persons would not be entitled to apply for court orders. Instead, judicial review on questions of law would be available following the decision of the AAT, under amended section 44 and new section 44AAA of the AAT Act (Items 125 to 129 of Schedule 1 to the Bill).

Item 20—Paragraph 139(2A)(e), Item 21—Paragraph 139(2B)(b) and Item 22—Subsection 139(2B) (note)

1314.      Item 20 would repeal paragraph 139(2A)(e) and substitute new paragraph 139(2A)(e). Item 21 would repeal paragraph 139(2B)(b) and substitute new paragraph 139(2B)(b). Item 22 would amend the note after subsection 139(2B).

1315.      Existing subsections 139(2A) and 139(2B) provide that where a court makes an urgent maintenance order while an application for administrative assessment of child support is pending, the court order ceases to have effect when a decision that the applicant is not entitled to assessment becomes final. Section 110W of the CSRC Act defines when decisions become final.

1316.      Existing paragraph 139(2A)(e) provides that an urgent maintenance order ceases to have effect when the SSAT makes a decision under Part VIIA of the CSRC Act, or when a court makes a decision under Subdivision B of Division 3 of Part VIII of that Act. New paragraph 139(2A)(e) would replace the reference to the SSAT with the AAT, and the reference to a court under Subdivision B of Division 3 of Part VIII of the CSRC Act with a reference to a court under the AAT Act.

1317.      Existing paragraph 139(2B)(b) relevantly provides that for the purpose of subsection 139(2A), a decision of the Registrar refusing to accept an application for administrative assessment of child support becomes final if an application to the SSAT under Part VIIA of the CSRC Act is not made within the period for doing so. New paragraph 139(2B)(b) would replace the reference to the SSAT under Part VIIA with a reference to the AAT on first review.

1318.      The new note after subsection 139(2B) would refer to the definition of when AAT decisions become final in section 110W of the CSRC Act (replacing the existing reference to the SSAT).

1319.      No policy change is intended as a result of the proposed amendments to section 139.

Item 23—paragraph 146B(5)(c)

1320.      See Item 2 in relation to Item 23.

Item 24—Subsection 146C(4)

1321.      Item 24 would repeal subsection 146C(4) and substitute new subsection 146C(4).

1322.      Existing section 146C deals with the power of the Registrar to vary, or refuse to vary, provisional notional assessments upon application from a liable parent or carer entitled to child support. Subsection 146C(4) provides that the liable parent and the carer may not apply to the SSAT in respect of a departure determination under Part 6A of the CSA Act. This provision on its face has the effect that the SSAT can never review a determination by the Registrar under Part 6A of the Act (a result which is contrary to section 89 of the CSRC Act).

1323.      New subsection 146C(4) would prevent applications being made to the AAT (or to a court under section 116) in relation to the Registrar’s making, or refusal to make, a departure determination under Part 6A, pursuant to subsections 146C(2) and 146C(3). By limiting the scope of subsection 146C(4) to subsections 146(2) and (3), the new provision would preclude the Tribunal’s jurisdiction in respect of provisional notional assessments, until such time as the notional assessment is no longer provisional and a person has completed internal review processes (by objecting to the notional assessment) and remains dissatisfied with the outcome. In such circumstances the person should be entitled to apply for external merits review. This would reflect the original policy intent of section 146C.

Item 25—Paragraphs 146E(6)(b) and 151C(5)(b)

1324.      See Item 2 in relation to Item 25.

Amendments to the Child Support (Registration and Collection) Act 1988

Items 26, 27 and 28—Subsection 4(1)

1325.      Item 26 would insert new definitions into section 4 of the CSRC Act:

·         ‘AAT Act’

·         ‘AAT first review’, and

·         ‘AAT second review’.

1326.      ‘AAT first review’ would refer to review of decisions in respect of which applications may be made under new section 89 (Item 51 of Schedule 4 to the Bill). This would comprise those applications which may currently be made to the SSAT. It would additionally include applications in matters where the Registrar has refused to make a departure determination because the issues are too complex (see Items 15-19 and 52 of Schedule 4 to the Bill).

1327.      ‘AAT second review’ would refer to review of decisions in respect of which applications may be made under new section 96A (Item 64 of this Schedule). This would comprise those applications which may currently be made to the AAT for review of decisions of the SSAT.

1328.      The new definitions of ‘AAT first review’ and ‘AAT second review’ would facilitate the maintenance of the existing two-tiered review process in respect of child support decisions, but with this process occurring within the amalgamated Tribunal. The definitions would also facilitate the preservation of differentiated procedures on AAT first review and AAT second review, as the AAT Act and the CSRC Act would prescribe procedural rules specific to each category. This is consistent with existing policy, as in some respects the procedures of the AAT and the SSAT in reviewing child support matters differ, based on the particular characteristics of the SSAT’s caseload. These definitions would also be relied on in the AAT Act (see definitions of ‘child support first review’ and ‘second review’ inserted into section 3 of the AAT Act by Items 3 and 12 of Schedule 1 to the Bill).

1329.      The categories of ‘AAT first review’ and ‘AAT second review’ would represent the continuation of existing policy in terms of the types of decisions that may be reviewed.

1330.      Item 27 would repeal paragraph (a) of the definition of ‘final’ and substitute new paragraph (a). This change would be consequential to the amended definition of ‘final’ in section 110W (Item 71 of Schedule 4 to the Bill).

1331.      Item 28 would repeal the definitions of ‘SSAT’, ‘SSAT member’ and ‘SSAT Principal Member’, in light of the abolition of the SSAT.

Item 29—Subsection 7(3)

1332.      Item 529 would amend subsection 7(3) to omit the references to the SSAT. Section 7 deals with State laws that relate to the collection of periodic amounts payable for the maintenance of children. Subsection 7(3) has the effect that where the Minister declares such a law to be a corresponding State law, it would apply to the SSAT and the AAT. No policy change to section 7 is intended. Section 7 would continue to apply to the amalgamated Tribunal.

Item 30—Paragraph 16(2AAA)(a), Item 31—Paragraph 16(2AAA)(b), Item 32—Subsection 16(2AB), Item 33—Subsection 16(2AC), and Item 34—Subsection 16(3A)

1333.      Items 30 to 34 would make amendments to section 16. Section 16 is a secrecy provision which restricts the manner and extent to which information obtained under the Act may be disclosed.

1334.      Item 30 would omit the reference to the SSAT communicating the reasons for its decisions under Part VIIA in paragraph 16(2AA)(a), and substitute it with reference to the AAT communicating its reasons for a decision.

1335.      Item 31 would repeal paragraph 16(2AA)(b), which deals with communications concerning the reasons for SSAT decisions, and substitute new paragraphs 16(2AA)(b) and (c), which would deal with communications concerning the reasons for AAT decisions.

1336.      Item 32 would amend subsection 16(2AB) to omit reference to the publication of SSAT decisions under Part VIIA, and substitute reference to the publication of AAT decisions on AAT first review or AAT second review. The amalgamated Tribunal would determine which of its decisions may appropriately be published under new section 66B of the AAT Act (Item 147 of Schedule 1 to the Bill).

1337.      Item 33 would omit reference to the SSAT under Part VIIA in subsection 16(2AC), and substitute a reference to the AAT.

1338.      Item 34 would omit reference to an SSAT member in subsection 16(3A) and substitute a reference to an AAT member.

1339.      These amendments would ensure that the prohibitions on disclosure of information in section 16, and the existing exceptions concerning the SSAT, continue to apply to the amalgamated Tribunal.

Item 35—Paragraphs 42C(4)(b), 54(4)(b), 68(3)(b) and 71E(3)(b)

1340.      Item 35 would amend paragraphs 42C(4)(b), 54(4)(b), 68(3)(b) and 71E(3)(b) to update the references to the SSAT and its merits review function in light of the amalgamation.

1341.      Existing sections 42C, 54, 68 and 71E require that when notifying a person of a decision, the Registrar must also notify the person of the right to object to the decision and, if aggrieved by the later decision on objection, to apply to the SSAT for review. Amended paragraphs 42C(4)(b), 54(4)(b), 68(3)(b) and 71E(3)(b) would ensure that persons are notified of their rights to apply to the amalgamated Tribunal for external merits review (following a decision on objection), rather than the SSAT.

Item 36—Section 79B (heading), Item 37—Paragraph 79B(1)(a), Item 38—Paragraph 79B(1)(b), and Item 39—Subparagraph 79B(3)(b)(i)

1342.      Items 36 to 39 would make amendments to section 79B to update references to the SSAT and appeals from the SSAT in light of the amalgamation. Section 79B empowers the Registrar to make suspension determinations, such that a payee of a registered maintenance liability in relation to a child is not entitled under subsection 76(1) to be paid while certain court or Tribunal proceedings are pending.

1343.      Item 36 would repeal the heading to section 79B and substitute a new heading that would refer to pending AAT and court reviews (rather than pending SSAT and court reviews).

1344.      Item 37 would omit the reference to proceedings ‘whether under Part VII, VIIA, or VIII’ and substitute with reference to ‘whether under this Act or the AAT Act’. This would reflect that the proceedings in the amalgamated Tribunal, and court appeals from such proceedings, would be brought under the AAT Act.

1345.      Item 38 would repeal paragraph 79B(1)(b) and substitute a new paragraph 79B(1)(b). The new provision would refer to proceedings brought under Part IVA of the AAT Act (appeals to a court on a question of law), rather than proceedings brought under Subdivision B of Division 3 of Part VIII, which is the present mechanism for court appeals from SSAT decisions (see Item 66 of Schedule 4 to the Bill on changes to judicial review pathways).

1346.      Item 39 would substitute a reference to the SSAT with a reference to the AAT in subparagraph 79B(3)(b)(i).

1347.      These amendments would ensure that section 79B would apply where review proceedings are pending in the amalgamated Tribunal, as well as where review proceedings are pending in courts, in the same way as section 79B currently applies to the SSAT. No other policy change is intended.

Item 40—Section 79D

1348.      Item 40 would repeal section 79D and insert new section 79D. Existing section 79D is the simplified outline to Part VII of the Act, which deals with internal objection procedures for certain decisions. New section 79D would explain that if a person is dissatisfied with the Registrar’s reconsideration of an objection, the person may apply to the AAT for review of the decision, which would be an “AAT first review”. The reference in existing section 79D to court appeals from SSAT proceedings would be omitted, as such appeals would be made under the AAT Act.

Item 41—Section 79E

1349.      Item 41 would amend section 79E, which is the object clause of Part VII, to substitute references to the SSAT and its review function under Part VIIA with a reference to the AAT.

Item 42—Paragraph 83(4)(b)

1350.      Item 42 would amend paragraph 83(4)(b) to omit references to the SSAT and substitute references to the AAT. Existing paragraph 83(4)(b) requires that when notifying persons of a decision on an objection under subsection 83(1), the Registrar must also notify them of the right to merits review by the SSAT. The amendments would ensure that persons are notified of their right to external merits review by the amalgamated Tribunal. No other change to existing policy is intended.

Item 43—Paragraph 87(3)(b)

1351.      Item 43 would repeal paragraph 87(3)(b) and substitute a new paragraph 87(3)(b).

1352.      Existing paragraph 87(3)(b) requires that when notifying persons of a decision on an objection under subsection 87(1), the Registrar must also notify them of the right to further review:

·         subparagraph 87(3)(b)(i) provides that if the decision to which the objection was made was a decision by the Registrar under sections 98E or 98R of the CSA Act (refusal to make a departure determination because the issues too complex), the Registrar must notify the person that they may apply to a court, and

·         subparagraph 87(3)(b)(ii) provides that otherwise (that is, if the decision to which the objection was made did not concern complex issues), the Registrar must inform the person of their right to apply to the SSAT for review.

1353.      Subparagraph 87(3)(b)(i) would be unnecessary in light of the proposed changes to enable persons to seek external merits review where the Registrar has refused to make a determination because the issues were too complex (Item 52 of Schedule 4 to the Bill, which would repeal subsection 89(2)). New paragraph 87(3)(b) would have the effect that in all cases where the Registrar notifies persons of a decision on an objection under subsection 87(1), the Registrar must inform them of the right to external merits review by the amalgamated Tribunal.

Item 44—Paragraph 87AA(4)(b)

1354.      Item 44 would amend paragraph 87AA(4)(b) to omit references to the SSAT and substitute references to the AAT. Existing paragraph 87AA(4)(b) requires that when notifying a person of a determination under subsection 87A(2) in relation to the date of effect of a decision on internal review of a care percentage decision, the Registrar must also notify them of their right to merits review by the SSAT. Amended paragraph 87AA(4)(b) would preserve existing policy and ensure that persons are notified of their right to merits review by the amalgamated Tribunal.

Item 45—Part VIIA (heading)

1355.      Item 45 would repeal the existing heading to Part VIIA, which refers to SSAT review of certain decisions, and substitute a new heading ‘Review by Administrative Appeals Tribunal’.

Item 46—Section 87A

1356.      Item 46 would repeal section 87A and substitute a new section 87A.

1357.      Existing section 87A is the simplified outline of Part VIIA on SSAT review of certain decisions. New section 87A would provide a revised outline that would explain the AAT merits review function in child support matters.

1358.      New section 87A would assist readers by explaining their right to AAT first review and, in limited circumstances, AAT second review. It would also explain the interaction between the AAT Act and the CSRC Act in relation to reviews by the AAT. In effect, the AAT Act applies unless it is modified by the CSRC Act. New section 87A would also inform readers that the AAT Act provides for court appeals on a question of law from AAT decisions in some circumstances.

Item 47—Section 88

1359.      Item 47 would repeal section 88, which provides the objective of the SSAT. The new objective of the amalgamated Tribunal would be set out in new section 2A of the AAT Act (Item 1 of Schedule 1 to the Bill).

Item 48—Division 2 of Part VIIA (heading)

1360.      Item 48 would repeal the heading to Division 2 of Part VIIA and substitute a new heading to Division 2, ‘Application for AAT first review’.

Item 49—Subdivision A of Division 2 of Part VIIA (heading)

1361.      Item 49 would repeal the heading to Subdivision A of Division 2 of Part VIIA since it is no longer necessary.

Item 50—Section 89 (heading)

1362.      Item 50 would repeal the heading to section 89 and substitute a new heading, ‘Application for AAT first review’.

Item 51—Subsection 89(1)

1363.      Item 51 would amend subsection 89(1) to omit the reference to a person applying to the SSAT for review, and instead refer to applications being made to the AAT for review.

1364.      Existing subsection 89(1) is the core provision conferring an entitlement on persons to apply to the SSAT for merits review. The entitlement applies in relation to the child support decisions set out in the table in subsection 89(1).

1365.      The amendments would not change existing policy in relation to who may apply for review, or the types of decisions in respect of which applications for review may be made. The purpose of the amendments is to transfer the review jurisdiction of the former SSAT in child support matters to the AAT. New subsection 89(1) would clarify that review by the AAT of decisions under subsection 89(1) is ‘AAT first review’.

Item 52—Subsection 89(2)

1366.      Item 52 would repeal subsection 89(2). Existing subsection 89(2) provides for exceptions to the SSAT’s merits review jurisdiction, such that a person cannot apply to the SSAT for review of a decision where either the original decision, or the decision on objection, was a refusal to make a departure determination under section 98E or 98R of the CSA Act because the issues were too complex. At present, in such circumstances persons whose interests are affected by the refusal are required to apply to a court for a determination.

1367.      For the reasons outlined in relation to Items 15-19 of Schedule 4 to the Bill (which would make other related amendments), it is no longer appropriate that this category of complex matters is precluded from external merits review. The repeal of subsection 89(2) would have the effect that persons may apply to the amalgamated Tribunal for review of a decision that involved a refusal to make a departure determination because the issues were too complex. This result would arise since those decisions, once the carve-out in existing subsection 89(2) is removed, would fall within Item 2 of the table in subsection 89(1) (decisions under subsection 87(1) on an objection to a decision of the Registrar).

1368.      This policy change would increase access to merits review and promote the full utilisation of the amalgamated Tribunal’s expertise.

Item 53—Subdivision B of Division 2 of Part VIIA (heading)

1369.      Item 53 would repeal the heading to Subdivision B of Division 2 of Part VIIA since it is no longer necessary.

Item 54—Sections 90 and 91

1370.      Item 54 would repeal sections 90 and 91 and substitute new sections 90 and 91.

New section 90—Time for applying for review

1371.      Existing section 90 sets out time limits for applying for SSAT review. Subsection 90(1) provides that applications (other than for review of a care percentage decision) must be made within 28 days of the person receiving notice of the relevant decision. Subsection 90(2) provides an exception such that residents of reciprocating jurisdictions (that is, certain foreign countries) may make applications for SSAT review within 90 days.

1372.      In the amalgamated Tribunal, section 29 of the AAT Act would govern applications for AAT first review of decisions under the CSRC Act. Paragraph 29(1)(d) of the AAT Act has the effect that applications must generally be made within 28 days of the person receiving notice of the relevant decision. Accordingly, new section 90 would only provide for the exceptions where this general rule would not apply. Specifically:

·         new subsection 90(1) would provide that paragraph 29(1)(d) does not apply in relation to an application for AAT first review of a care percentage decision, to preserve the position under existing subsection 90(1) that there is no time limit for applications for review of such decisions, and

·         new subsection 90(2) would preserve the position under existing subsection 90(2) that residents of reciprocating jurisdictions may make applications for review within 90 days.

1373.      The note in amended section 90 would alert readers to the effect of paragraph 29(1)(d) of the AAT Act.

1374.      The amendments proposed would preserve existing timeframes for applying for review.

New section 91—Extensions of time to apply for review

1375.      Existing section 91 permits a person to make a written application to the SSAT Principal Member to seek an extension of time for applying for review. The person must state reasons for their failure to apply within the required time.

1376.      New section 91 would preserve the procedure for applications for extensions of time, but provide that applications may be made to the AAT. New subsection 91(3) would provide that subsections 29(7) to (10) of the AAT Act do not apply in relation to extensions of time sought under the CSRC Act. This is because subsections 29(7) to (10) set out the standard procedure for seeking an extension of time for an application from the AAT, and it would not be appropriate to have dual procedures available in respect of AAT first review.

Item 55—Section 92 (heading)

1377.      Item 55 would repeal the heading to section 92 and substitute a new heading, ‘Consideration of applications for extension of time to apply for AAT first review’.

Items 56–61—Applications for extension of time for applying for AAT first review

1378.      Items 56 to 61 would amend section 92. Existing section 92 requires the SSAT Principal Member to consider applications for extension of time to apply for review, and prescribes certain procedures associated with such applications. The amendments would reflect the transfer of jurisdiction from the SSAT to the AAT. They would not affect existing policy on the consideration of applications for extension of time.

Item 56—Subsection 92(1), Item 57—Paragraph 92(1)(b), Item 58—Paragraph 92(1)(c), Item 59—Subsections 92(1A) and (3)

1379.      Item 56 would amend subsection 92(1), Item 57 would amend paragraph 92(1)(b), Item 58 would amend paragraph 92(1)(c), and Item 59 would amend subsections 92(1A) and (3), as follows:

·         references to the SSAT and the SSAT Principal Member would be omitted, and substituted with references to the AAT, and

·         references to applications under section 91 or under Part VIIA would be replaced with references to AAT first review.

1380.      The amendments would ensure that applications for extension of time may be made to the amalgamated Tribunal instead of the SSAT.

Item 60—Subsection 92(4)

1381.      Item 60 would repeal existing subsection 92(4) and substitute a new subsection 92(4).

1382.      Existing paragraph 92(4)(a) requires the SSAT Principal Member, when notifying the applicant of a decision to refuse an extension application, to also notify the applicant of the right to apply to the AAT for review of the refusal.

1383.      Existing paragraph 92(4)(b) further requires that the notification explain that the person may request a statement of reasons for the refusal of the extension application under section 28 of the AAT Act, except where subsection 28(4) of that Act applies (subsection 28(4) has the effect that a person may not apply for a statement of reasons where reasons have previously been provided to them).

1384.      New subsection 92(4) would preserve the effect of existing paragraph 92(4)(a). Accordingly, it would require the AAT to notify a person whose extension application is refused of the right to apply to the AAT for review, subject to the CSRC Act and the AAT Act. A note to new subsection 92(4) would state that paragraph 96(a) defines such a review as ‘AAT second review’.

1385.      It would not be necessary to replicate existing paragraph 92(4)(b), since section 28 of the AAT Act would apply to AAT second reviews of child support matters, including extension applications (see Item 43 of Schedule 1 to the Bill).

Item 61—Subsections 92(6) to (8)

1386.      Item 61 would repeal subsections 92(6) to (8) and substitute a new subsection 92(6).

1387.      Existing subsection 92(6) provides that if an extension application is granted, the person who made the application is taken to have duly made the application for review under Part VIIA to which the extension application related. This then triggers the normal processes following receipt of an application (for example, requirements around the provision of documents to the Tribunal: see Item 62 of Schedule 4 to the Bill).

1388.      New subsection 92(6) would preserve this position. It would provide that if an extension application is granted, the applicant is taken to have validly made the application for AAT first review in which the extension application was included, for the purposes of the CSRC Act and the AAT Act.

1389.      Existing subsections 92(7) to (8) entitle a person to apply to the AAT for review of a decision of the SSAT Principal Member to refuse an extension application. This entitlement to AAT second review would be preserved in new section 96A (Item 64 of Schedule 4 to the Bill).

Item 62—Section 93

1390.      Item 62 would repeal section 93 and substitute a new subsection 93.

1391.      Existing section 93 deals with the effect of the making of an application for extension of time in which to apply to the SSAT for review:

·         Pursuant to paragraph 93(aa), the Registrar must send to the SSAT Principal Member, within 28 days of a request, the statement setting out the decision and reasons described in paragraph 95(3)(a).

·         Pursuant to paragraph 93(a), subsections 95(2) to (6) and section 96 are taken not to apply unless and until the extension application is granted by the SSAT or a court. Subsections 95(2) to (6) and section 96 set out various procedures to be followed by the SSAT and the parties on receipt of applications for review.

·         Pursuant to paragraph 93(b), if the extension application is granted, subsection 95(2) applies as if the application for review were received by the SSAT on the day the decision to grant the extension application is made. Subsection 95(2) requires the SSAT to notify the applicant, the Registrar and any other party to the review of receipt of the application, which triggers the Registrar’s obligations to provide documents to the Tribunal in sections 95 and 96.

1392.      In effect, existing section 93 suspends the normal process for reviews until such time as the SSAT has determined whether a person should be granted an extension of time in which to apply, with the exception in paragraph 93(aa) that the Registrar must provide the initial statement of the decision and reasons, if requested.

1393.      New section 93 would modify the AAT Act as necessary so as to preserve the effect of existing section 93.

1394.      New subsection 93(1) would provide that section 29AC of the AAT Act does not apply in relation to an application for AAT first review for which an extension application has been made under section 91, unless the AAT or a court decides the extension application has been granted. New section 29AC of the AAT Act (Item 51 of Schedule 1 of the Bill) would require that the parties and other persons whose interests may be affected by the decision are notified of the application for review. The obligations on the Registrar to provide documents under section 37 of the AAT Act would not be triggered until the Registrar receives notification of the application under section 29AC. Accordingly, new subsection 93(1) would preserve the effect of existing paragraphs 93(a) and (b).

1395.      New subsection 93(2) would preserve the effect of existing paragraph 93(aa). It would provide that the Registrar must send to the AAT, within 28 days of a request in relation to an AAT first review, the statement described in paragraph 37(1)(a) of the AAT Act—that is, the statement of the decision and reasons. New subsection 93(2) would go beyond existing paragraph 93(aa) by also requiring the Registrar to provide (upon request) the documents described in paragraph 37(1)(b) of the AAT Act—that is, any other documents relevant to the review. This is because the documents relevant to the Registrar’s decision can assist the Tribunal to decide the extension of time application. (See Item 74 of Schedule 1 to the Bill).

Item 63—Subdivisions C, D and E of Division 2 of Part VIIA and Item 64—Divisions 3 to 6 of Part VIIA

1396.      Item 63 would repeal Subdivisions C, D and E of Division 2 of Part VIIA, comprising sections 94 to 100A. These provisions would no longer be necessary.

Subdivision C—Application procedures

1397.      Subdivision C comprises sections 94 to 98, which deal with:

·         the manner of applying for SSAT review of child support matters (section 94)

·         procedures for notifying the applicant, the Registrar and any other party of the application for review (section 95), and

·         procedures for the provision of documents in relation to the review, including where documents are not required to be provided because of their confidential nature (sections 95 to 97).

1398.      After the amalgamation, these matters would be provided for in the AAT Act (as amended by Schedule 1), to the extent necessary to ensure the effective conduct of merits review of child support matters. Specifically, section 29 of the AAT Act will govern how applications for AAT first review may be made, while section 29AC will provide for the Registrar, the applicant and persons whose interests are affected to be notified of the application (Items 46 and 51 respectively of Schedule 1 to the Bill). Sections 35, 37 and 38AA of the AAT Act (Items 66, 74 to 87 of Schedule 1 to the Bill), together with new sections 95C and 95L (Item 64 of Schedule 4 to the Bill), would prescribe rules relating to documents. This would include obligations on the Registrar to provide documents and the power for the Tribunal to make non-disclosure orders to protect confidential documents. These rules would permit existing practice under sections 95 to 97 to continue.

Subdivision D—Effect of variations of original decisions on applications

1399.      Subdivision D comprises section 99, which deals with the effect on an application to the SSAT for review of a decision by an officer to vary or substitute the decision under review. The effect of section 99 would be preserved in new section 95B of the CSRC Act (Item 64 of Schedule 4 to the Bill).

Subdivision E—Dismissal of applications

1400.      Subdivision E comprises sections 99A to 100A, which deal with the SSAT’s powers to dismiss applications for review of child support matters. These provisions would no longer be necessary, as sections 42A and 42B of the AAT Act (as amended by Items 108-115 of Schedule 1 to the Bill) would provide a full suite of dismissal powers for the amalgamated Tribunal.

Item 64—Divisions 3 to 6 of Part VIIA

1401.      Item 64 would repeal Divisions 3 to 6 and substitute:

·         new Division 3—Other matters relating to AAT first review (sections 95A to 95Q)

·         new Division 4—Application for AAT second review (sections 96A to 96B)

·         new Division 5—Other matters relating to AAT second review (sections 97A to 97E), and

·         new Division 6—Matters relating to both AAT first review and AAT second review (sections 98A-98D).

Existing Divisions 3 to 6

1402.      Existing Divisions 3 to 6 apply to SSAT reviews of child support decisions and deal with the following matters:

·         parties to reviews—Division 3

·         directions hearings—Division 3A

·         hearings—Division 4 (procedures related to hearings, submissions, the SSAT’s powers to obtain information and other evidence provisions

·         decisions on review—Division 5, and

·         other provisions—Division 6.

1403.      Divisions 3 to 6, together with Subdivisions C, D and E of Division 2 (Item 63 of Schedule 4 to the Bill), provide a comprehensive set of procedural rules for SSAT reviews under the CSRC Act. As a result of the amalgamation, this would no longer be necessary. The AAT Act provides a general procedural framework for merits review. Unless otherwise modified or excluded, either in the AAT Act or in the CSRC Act, the AAT Act rules would apply to reviews of child support decisions by the amalgamated Tribunal.

1404.      The purpose of new Divisions 3 to 6 would be to make any necessary modifications to the AAT Act, so as to preserve existing procedures in SSAT reviews of child support matters and ensure that they are applied to AAT first reviews of child support matters. New Divisions 3 to 6 would also provide certain additional rules on matters that are not covered in the AAT Act but support the effective conduct of merits review of child support matters. Certain provisions in existing Divisions 3 to 6 would not be replicated, because they are no longer necessary to support the effective conduct of merits review of child support matters.

1405.      The content of existing Divisions 3 to 6 would be provided for as follows.

Existing Division 3

·         Section 101 (parties to reviews) would be covered by section 30 of the AAT Act, and new section 95D of the CSRC Act, inserted by this Item.

·         Section 102 (notice of application to persons affected by the decision) would be covered by new section 29AC of the AAT Act (Item 51 of Schedule 1 to the Bill).

Existing Division 3A

·         Section 103 (directions hearings) would be covered by section 33 of the AAT Act.

Existing Division 4

·         Section 103A (arrangements for hearings) would not be necessary to retain. Fixing the day, time and place of hearings is a routine administrative matter that need not be dealt with in legislation. Subsection 42A(7) of the AAT Act requires that a party must be given appropriate notice of the hearing, before the Tribunal can dismiss an application for failure to appear.

·         Sections 103B to 103F (submissions by the parties) would be covered by new section 39AA of the AAT Act (Item 90 of Schedule 1 to the Bill).

·         Section 103G (taking evidence on oath or affirmation) would be covered by subsection 40(1) of the AAT Act.

·         Section 103H (children of parties not to give evidence) would be covered by new section 98A of the CSRC Act, inserted by this Item.

·         Sections 103J to 103L (information gathering powers of the SSAT) would be covered by new sections 95G to 95J of the CSRC Act, inserted by this Item.

·         Section 103M (presiding member) would be covered by amended section 19A of the AAT Act (Item 27 of Schedule 1 to the Bill).

·         Section 103N (hearing procedure) would be covered by section 33 of the AAT Act.

·         Section 103P (private hearings) would be covered by new section 95K of the CSRC Act, inserted by this Item.

·         Section 103R (adjournment of hearings) would be covered by paragraph 40(1)(c) of the AAT Act.

Existing Division 5

·         Section 103S (power to affirm, vary or set aside decision) would be covered by subsection 43(1) of the AAT Act and new section 95M of the CSRC Act, inserted by this Item.

·         Section 103T (powers of the SSAT for the purposes of reviews) would be covered by subsection 43(1) of the AAT Act and new section 95E of the CSRC Act, inserted by this Item.

·         Section 103U (resolving disagreements) would be covered by amended section 42 of the AAT Act (Item 107 of Schedule 1 to the Bill).

·         Section 103V (date of effect of decisions) would be covered by subsection 43(6) of the AAT Act and new section 95N of the CSRC Act, inserted by this Item.

·         Section 103VA (appeals to the SSAT from the AAT) would be covered by new section 96A of the CSRC Act, inserted by this Item.

·         Section 103W (dismissal by consent) would be covered by section 42C of the AAT Act.

·         Section 103X (notification of decision and reasons) would be covered by section 43 of the AAT Act and new section 95P of the CSRC Act, inserted by this Item.

·         Section 103Y (correction of errors) would be covered by section 43AA of the AAT Act.

·         Section 103Z would not be retained as it is no longer necessary. Section 103Z provides that the SSAT may determine that the Commonwealth is to pay reasonable travel and accommodation costs incurred by a party in connection with a review, or costs incurred in relation to medical services arranged by the SSAT. This power is not used in practice. Parties often opt for hearings by electronic means, as this is less costly and more time-efficient (especially for persons caring for children). The SSAT does not typically require parties to obtain additional medical evidence for the purposes of determining the review.

Existing Division 6

·         Section 103ZA (directions as to procedure in reviews) would be covered by section 33 of the AAT Act and new section 95Q of the CSRC Act, inserted by this Item.

·         Sections 103ZAA to 103ZAC (non-disclosure orders) would be covered by subsections 35(3) and (4) of the AAT Act (as amended by Item 66 of Schedule 1 to the Bill) and new sections 98B to 98D of the CSRC Act, inserted by this Item.

New Division 3—matters relating to AAT first review

1406.      New Division 3 would set out matters relating to AAT first review.

New section 95A—Operation and implementation of decision under AAT first review

1407.      New section 95A would ensure that subsection 41(2) of the AAT Act would not apply to AAT first reviews. Subsection 41(2) of the AAT Act empowers the AAT to issue orders staying or otherwise affecting the operation or implementation of the decision under review. The SSAT does not have the power to make stay orders. Accordingly, new section 95A would preserve existing policy. Parties would be entitled to seek stay orders in a court in relation to AAT first reviews of decisions under the CSRC Act, pursuant to Part VIIIB (see section 111C, as amended by Items 85 to 86 of Schedule 4 to the Bill).

New section 95B—Variation of original decision after application is made to AAT for AAT first review

1408.      New subsections 95B(1) and (3) would replicate existing section 99, and would deal with the effect of variation by the Child Support Registrar of a decision under review by the AAT.

1409.      New section 95B would preserve existing policy whereby if the Registrar varies or sets aside and substitutes a decision under review, the application for review is taken to be an application for the review as varied. The applicant may choose to continue with the review or may notify the AAT under subsections 42A(1A) or (1AA) of the AAT Act that the application is discontinued or withdrawn.

1410.      New subsection 95B(2) would require the Child Support Registrar to give written notice to the Registrar of the AAT, where the Registrar varies or sets aside and substitutes a decision under review. This requirement is important to ensure that the Tribunal is made aware of any change to the decision under review (which may also involve new information relevant to the review), and would rectify an omission in the CSRC Act.

New section 95C—Procedure on receipt of application for AAT first review

1411.      New section 95C would replicate existing subsection 95(4). New section 95C would empower the AAT to request the Child Support Registrar to provide documents to the Tribunal earlier than the 28 period required under subsection 37(1) of the AAT Act. The Registrar would be required to take reasonable steps to comply with such a request. New section 95C would not affect, and would be additional to, the power of the AAT to shorten the time frames for lodging documents under section 37(1A) of the AAT Act.

New section 95D—Parties to AAT first review

1412.      New section 95D would replicate existing paragraph 101(1)(c), which provides that any person who is entitled to apply to the SSAT for review of a decision automatically becomes a party to the AAT review. This would ensure that the interests of all affected parties are considered during the review. New subsection 95D would apply in addition to subsection 30(1) of the AAT Act, which describes the persons who may apply to be made parties to an AAT review.

New section 95E—Powers of AAT for purposes of AAT first review

1413.      New section 95E preserve the effect of existing subsection 103T(3).

1414.      New section 95E would modify the effect of subsection 43(1) of the AAT Act. Subsection 43(1) provides that the Tribunal may exercise all of the powers and discretions conferred on the original decision‑maker. Section 95E would limit subsection 43(1) in relation to AAT first reviews, such that the AAT would not be permitted to exercise a power or discretion conferred on the Registrar by a prescribed provision of the Act. For example, at present, Regulation 7A of the Child Support (Registration and Collection) Regulations 1988 provides that the SSAT may not exercise certain powers (as listed in Schedule 3) under subsection 103T(3).

New sections 95F–95J—Information gathering powers for purposes of AAT first review

1415.      New section 95F would provide that section 40A of the AAT Act (the summons power) would not apply in relation to an AAT first review. Instead, new sections 95G, 95H and 95J would set out alternative information gathering powers for the amalgamated Tribunal. These provisions would preserve the effect of existing sections 103J, 103K and 103L respectively.

1416.      Section 95G would permit the AAT to request the Registrar to provide information or documents relevant to an AAT first review. The Registrar must comply with such a request as soon as practicable, and no later than within 14 days.

1417.      Section 95H would permit the AAT to issue a notice requiring any person it reasonably believes has information or a document relevant to an AAT first review to give such information, produce such documents or attend to answer questions. Consistent with existing subsection 103K(2), subsection 95H(2) would make it an offence for the person to fail to comply with such a notice. While the privilege against self-incrimination applies in common law, for the avoidance of doubt, new subsection 61(2) would insert a specific defence of self‑incrimination to the offence in subsection 95H(2). This provides certainty that the privilege would not be abrogated. The defence does not preclude or remove the powers to compel information that is not self-incriminatory from an individual. The defence also does not preclude the individual from having to provide information or produce documents that may incriminate others.

1418.      The note to subsection 95H(3) would state that a defendant bears an evidential burden in relation to the matter in that subsection – see subsection 13.3(3) of the Criminal Code Act. Section 13.3 of the Criminal Code provides that in the case of a standard ‘evidential burden’ defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1). It is considered appropriate to cast the evidential burden on the defendant in these circumstances. The person who is being compelled to provide information or produce a document will be best placed to know whether complying might tend to incriminate the person.

1419.      Finally, in relation to section 95H, legal professional privilege applies in common law and has an equivalent in the Evidence Act. As no express abrogation is applied to this provision, legal professional privilege is intended to apply.

1420.      Section 95J would permit the AAT to require the Registrar to exercise the Registrar’s power under section 161 of the CSA Act or section 120 of the CSRC Act to obtain information from a person if the AAT is satisfied that person has information or a document relevant to an AAT first review. The Registrar must comply with such a request as soon as practicable, and no later than within 7 days.

1421.      The powers in new sections 95G, 95H and 95J are more appropriate to the conduct of AAT first reviews than the summons power in section 40A of the AAT Act. In particular, it would assist the amalgamated Tribunal to continue to have access to the compulsory information gathering powers of the Registrar, especially in circumstances where information is held by third parties subject to strict confidentiality requirements (for example, the Australian Taxation Office). The specific timeframes in sections 95H and 95L would also promote the expeditious conduct of reviews.

New section 95K—Hearing of AAT first review in private

1422.      New section 95K would preserve the effect of existing section 103P.

1423.      Existing section 103P requires that hearings of an SSAT review must be held in private, with the SSAT empowered to give directions as to who may be present, having regard to the wishes of the parties.

1424.      To this end, new section 95K would provide that subsections 35(1) and (2) of the AAT Act (which provide the general rule that hearings must be in public) do not apply. The sensitive and personal nature of the information typically disclosed in child support reviews makes privacy a major concern of the parties. Private hearings are accordingly a key feature that should be preserved in AAT first reviews in the amalgamated Tribunal as one means of ensuring that it is accessible and responsive to the needs of applicants.

New section 95L—Non-disclosure orders in relation to AAT first review

1425.      New section 95L would replace existing sections 97 and 98, whereby the Child Support Registrar may apply to the SSAT for a direction that the Registrar is not required to give a copy of certain documents to other parties. The amalgamated Tribunal’s power to make such directions would be covered by subsections 35(3) and (4) of the AAT Act.

1426.      New section 95L(1) would provide that if the Registrar applies to the AAT for a non‑disclosure direction under subsection 35(3) or (4) of the AAT Act, the Registrar is not required to give a copy of the application to the other parties. New subsection 95L(2) would provide that subsection (1) applies despite subparagraph 37(1AF)(b)(ii), which would otherwise require the Registrar to do so. This exception is intended to ensure that the Tribunal can consider such a request promptly and without notice to the other parties in appropriate cases, especially where there may be safety concerns due to a history of violence between the parties.

New section 95M—Decision on AAT first review of care percentage decision

1427.      New section 95M would preserve the effect of existing subsection 103S(2).

1428.      New section 95M would modify the effect of section 43(1) of the AAT Act. Section 43(1) of the AAT Act empowers the AAT to issue a decision on review that affirms, varies, or sets aside (and substitutes or remits) a decision. New section 95M would impose a limitation on the amalgamated AAT’s powers under subsection 43(1) in respect of AAT first reviews. If the AAT has reviewed a decision on an application under sections 111 or 142 of the FAA Act, and the decision involved a review of a determination to which a care percentage decision relates, the AAT must not, on AAT first review of the care percentage decision, vary or substitute the decision in a way that would have the effect of varying or substituting the determination that has been reviewed under the FAA Act.

1429.      This rule manages the interaction between child support law and family assistance law. It is existing policy, and provides certainty to the parties that a previous decision on review which applies for the purposes of both laws will not be later varied by the Tribunal in another review at an equivalent level (that is, another first review).

New section 95N—Date of effect of AAT first review decision relating to care percentage decision

1430.      New section 95N would preserve the effect of existing section 103V, insofar as it concerns the date of effect of SSAT decisions on review of care percentage decisions.

1431.      New section 95N would modify the effect of subsection 43(6) of the AAT Act. Section 43(6) of the AAT Act provides that where the AAT varies or substitutes a decision on review, the decision has effect from the day the original decision was made. New section 95N would modify the rule in subsection 43(6) in relation to AAT first reviews as follows:

·         Subsection 95N(1) would provide that if a person applies for AAT first review more than 28 days—or for residents of reciprocating jurisdictions, more than 90 days—after receiving notice of the decision, the AAT’s decision has effect from the day the application was made (not the day the original decision was made).

·         However, pursuant to subsection 95N(2), if the AAT were satisfied that special circumstances prevented the application being made in time, the AAT may determine that subsection 95N(1) applies as if the application were made in such longer timeframe as the AAT determines to be appropriate.

·         Subsection 95N(3) would require the AAT to provide a written notice of a decision to make a determination under new subsection 95N(2) to each person affected by the decision.

·         A note would be inserted at the end of section 95N to inform the reader that pursuant to new paragraph 96A(c), an application for AAT second review may be made in relation to a determination under subsection 95N(3).

1432.      These rules in new section 95N concerning the date of effect of an AAT decision on first review in relation to care percentage decisions reflect existing policy. The rules would provide an incentive to persons to make timely applications for reviews, while the AAT’s ability to backdate its decisions is sufficiently flexible to ensure a fair outcome in individual cases.

New section 95P—Notification of decisions and reasons for AAT first review

1433.      New section 95P would modify the effect of subsections 43(2) and (2A) of the AAT Act to preserve the effect of existing section 103X. Subsections 43(2), (2A) and (3) provide the regime for the Tribunal to notify parties of its decision to affirm, vary, or set aside a decision (and remit the matter or substitute a new decision) and provide reasons either orally or in writing. The modifications in new subsection 95P would preserve the following key differences between the SSAT and the AAT:

·         the AAT would be required to issue reasons within 14 days after making the decision, and

·         where oral reasons are provided, the timeframes for a party to request written reasons, and for the Tribunal to respond, are 14 days (as opposed to 28 days in the AAT Act).

1434.      New section 95P would promote the quick conduct of reviews, which is an important feature of the SSAT, in the amalgamated Tribunal.

New section 95Q—Directions in relation to AAT first reviews

1435.      New section 95Q would preserve the effect of existing section 103ZA, insofar as it empowers the SSAT Principal Member to make general directions that are legislative instruments setting out the SSAT’s procedure on child support reviews (paragraph 103ZA(1)(a) and subsection 103ZA(8)). The SSAT Child Support Review General Directions 2012 are made under this power. The status of general directions as legislative instruments shores up the validity of actions taken pursuant to those directions, since they cannot be challenged as administrative decisions. This is desirable in light of the litigious nature of the child support jurisdiction.

1436.      New subsections 95Q(1) to (2) would provide the same power to make legislative instruments, insofar as it relates to AAT first reviews, to the President of the AAT. Such directions must not be inconsistent with the CSA Act or the CSRC Act. In practice the President might delegate the power in section 95Q to the relevant Division Head.

1437.      New subsection 95Q(3) would clarify that section 95Q does not limit the President’s powers to give directions under the AAT Act in relation to AAT first reviews. Accordingly, it would be possible for directions in relation to AAT first reviews of child support matters to be made under the AAT Act or under section 95Q of the CSRC Act.

Division 4—application for AAT second review

1438.      New Division 4 would contain provisions dealing with applications for AAT second review.

New section 96A—Application for AAT second review

1439.      New section 96A would be the core provision entitling persons to apply for second review of the following decisions on AAT first review:

·         a decision under section 92 to refuse an application for an extension of time in which to apply to the SSAT for review: paragraph 96A(a) (referred to hereafter as ‘extension applications’.)

·         a decision under subsection 43(1) of the AAT Act on an AAT first review of a care percentage decision: paragraph 96A(b), and

·         a decision under subsection 95N(2) to make, or not to make, a determination relating to the date of effect of a care percentage decision: paragraph 96A(c) (referred to hereafter as ‘care percentage date determinations’).

1440.      These categories of decision are the same as the SSAT decisions in respect of which a person may currently seek AAT review, under existing subsection 92(7) and section 103VA of the CSRC Act. Accordingly, there would be no change to existing policy.

New section 96B—Notice of application for AAT second review

1441.      New section 96B would preserve the effect of existing section 110XA.

1442.      Existing section 110XA modifies subsection 29(11) of the AAT Act in relation to reviews of care percentage decisions (and care percentage date determinations) by the AAT. Subsection 29(11) requires the Tribunal to give notice of an application for review to the person who made the decision. Existing section 110XA has the effect that the parties to the SSAT review are notified of the application to the AAT for further review.

1443.      New section 96B would modify the effect of paragraph 29AC(1)(b) of the AAT Act (which would replace subsection 29(11): Item 51 of Schedule 1 to the Bill). New subsection 96B(1) would have the effect that the Child Support Registrar would be notified of an application for second review of an extension application. New subsection 96B(2) would have the effect that each party to the AAT first review (other than the applicant) would be notified of an application for second review of a care percentage decision or a care percentage date determination.

Division 5—Other matters relating to AAT second review

1444.      New Division 5 would contain provisions dealing with other matters relating to AAT second review. In particular, it would contain provisions that modify the AAT Act so that its operation on AAT second review is clear (similarly to new section 96B in Division 4). This is necessary since the AAT Act is not primarily drafted to cover the situation where the decision under review is a decision by another Tribunal, as opposed to an agency decision‑maker. The CSRC Act currently provides for such modifications. The amendments for the most part would make minor terminology changes to reflect the new defined term ‘AAT second review’.

New section 97A—Parties to AAT second review

1445.      New section 97A would preserve the effect of existing section 110XB.

1446.      Existing section 110XB modifies the application of paragraph 30(1)(b) of the AAT Act—which provides for the parties to a review— in relation to AAT reviews of SSAT decisions on review of care percentage decisions. The modification ensures that the SSAT is not a party to the AAT review, but rather that the parties to the SSAT review are parties to the AAT review.

1447.      New subsection 97A(1) would modify paragraph 30(1)(b) of the AAT Act in relation to extension applications, with the effect that the Child Support Registrar is a party to the AAT second review.

1448.      New subsection 97A(2) would modify paragraph 30(1)(b) of the AAT Act in relation to care percentage decisions and care percentage date determinations, with the effect that the parties to the AAT first review are parties to the AAT second review.

New section 97B—Operation and implementation of decisions—AAT second review

1449.      New section 97B would preserve the effect of existing section 110XE.

1450.      Existing section 110XE modifies the application of section 41 of the AAT Act—which provides the Tribunal’s power to make stay orders— in relation to a review by the AAT of an SSAT decision on review of a care percentage decision.

1451.      New subsections 97B(1) and (2) would modify the application of section 41 of the AAT Act in relation to AAT second reviews of care percentage decisions under paragraph 96A(b) of the CSRC Act, with the effect that:

·         the AAT may stay the decision made by the Registrar that was the subject of AAT first review and/or the decision made by the AAT on AAT first review, and

·         the parties to the AAT first review have the opportunity to be heard under section 41 in relation to an application to the AAT for a stay order in relation to the decision pending AAT second review.

New section 97C—Variation of original decision after application is made for AAT second review

1452.      New section 97C would deal with the effect of variation by the Child Support Registrar of a care percentage decision (under paragraph 96A(b)) that is subject to second review by the AAT. There is no existing provision dealing with this matter. This existing omission could unintentionally create doubt as to the ability of the Child Support Registrar to exercise powers under the CSRC Act to vary a decision while an AAT second review is pending. New section 97C is otherwise the same in effect as new section 95B, which applies to AAT first reviews (inserted by this Item).

New section 97D—Failure of party to appear at AAT second review

1453.      New section 97D would preserve the effect of existing section 110F.

1454.      Existing section 110XF modifies the application of subsection 42A(2) of the AAT Act in relation to care percentage decisions. Subsection 42A(2) provides the Tribunal’s power to dismiss an application or remove a party if a party fails to appear. The modification ensures that the reference to the person who made the decision in subsection 42A(2) is a reference to the Child Support Registrar rather than the SSAT.

1455.      New section 97D would make the same modification in relation to AAT second review, with the effect that the dismissal powers only apply to parties other than the Secretary.

New section 97E—Decision on AAT second review of care percentage decision

1456.      New section 97E would modify the effect of section 43(1) of the AAT Act to preserve the effect of existing subsection 103VA(1A). Section 43(1) of the AAT Act empowers the AAT to affirm, vary, or set aside a decision (and remit the matter or substitute a new decision). Section 103VA(1) provides that if the AAT has reviewed a decision under section 142 of the FAA Act (that is, an application for second review), and the decision involved a review of a care percentage date determination, the AAT must not vary or substitute the decision on an AAT second review of a child support decision, in a way that would have the effect of varying or substituting the determination that has been reviewed under the FAA Act.

1457.      New section 97E would preserve this limitation on the amalgamated AAT’s powers under subsection 43(1) in respect of AAT second reviews. This is existing policy. Its purpose is to manage the interaction between child support law and family assistance law. It provides certainty to the parties that a previous decision on AAT second review which applies for the purposes of both laws will not be later varied by the Tribunal in another AAT second review (that is, at an equivalent level).

Division 6—Matters relating to both AAT first review and AAT second review
New section 98A—Evidence of children in AAT first reviews and AAT second reviews

1458.      New section 98A would preserve and clarify the scope of existing section 103H.

1459.      Existing section 103H provides that a person who is the child of a party, or for whom a party is a non-parent carer, may not give evidence for the purposes of a child support review in the SSAT. The interpretation of this provision over time has led to some uncertainty as to its scope. It is not clear what constitutes ‘evidence’ and whether this includes communications such as text messages or emails from a child to their parent. Further, the Federal Magistrates Court (as it then was) interpreted ‘child’ as meaning a biological descendant rather than a minor. Finally, the omission of reference to the AAT has had the unintended effect that the provision may not apply in AAT reviews of child support decisions by the SSAT.

1460.      The rationale behind existing section 103H was stated in the Explanatory Memorandum to the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Bill 2006 as being ‘to protect children from being pressured to support a particular parent’s or carer’s position for child support purposes, which would be damaging to the child’s continuing relationship with both parents and/or their carers’.

1461.      New section 98A would give effect to this policy while clarifying the scope of the prohibition, such that it would apply only to persons under 18 who are the child of a party or for whom a party is a non-parent carer, and only in relation to oral testimony. It would apply to AAT first reviews and AAT second reviews.

New sections 98B and 98C—Non-disclosure orders

1462.      New sections 98B and 98C would replicate existing sections 103ZAA and 103ZAC, which concern non-disclosure orders and secondary non-disclosure orders respectively.

1463.      Existing subsection 103ZAA(1) empowers the SSAT Principal Member to make non‑disclosure orders. It is an offence pursuant to subsection 103ZAA(3) to breach such an order. Subsections 103ZAA(2) and 103ZAA(4) clarify the permissible scope of orders. Subsection 103ZAA(2) provides that an order may only specify information that has been disclosed for the purposes of the review, while subsection 103ZAA(4) provides that an order does not apply to information which a person knew before the disclosure for the purposes of the review was made.

1464.      The amalgamated AAT’s power to make non-disclosure orders would be set out in subsections 35(3) and (4) of the AAT Act (Item 66 of Schedule 1 to the Bill). This power would be sufficiently broad to cover the power in section 103ZAA of the CSRC Act. The AAT Act would also provide for an offence of breaching a non‑disclosure order (new section 62C, inserted by Item 144 of Schedule 1 to the Bill).

1465.      Nonetheless, new section 98B would provide that to avoid doubt, an order made under subsections 35(3) and (4) of the AAT Act (in relation to an AAT first review or an AAT second review):

·         may only prohibit or restrict the publication or other disclosure of information that has been disclosed for the purposes of the review: subsection 98B(1), and

·         does not apply to information the person knew before it was disclosed for the purposes of the review: subsection 98B(2).

1466.      New section 98B is essentially declaratory of the scope of the power to make non‑disclosure orders under new subsections 35(3) or (4) of the AAT Act, and should not be read as impliedly limiting or expanding that power. It is intended to assist parties in child support matters to understand their obligations. It would also assist the Tribunal in responding to allegations by one party of a breach by another party of their obligations, where those allegations are ill-conceived because the information in question was not obtained from documents given to the party in the course of the review.

1467.      In relation to secondary non-disclosure orders, existing subsection 103ZAC(1) empowers the SSAT Principal Member to make such orders in circumstances where a primary order has been made under existing section 103ZAA. The secondary order may direct a person who is the recipient of information under the primary order not to disclose the information. Existing subsection 103ZAC(2) makes it an offence for a person to breach a secondary non-disclosure order. Existing subsection 103ZAC(3) provides that an order does not apply to information which the person knew before the disclosure for the purposes of the primary order was made.

1468.      New section 98C would preserve the effect of existing section 103ZAC, but in circumstances where the primary order is made under new subsections 35(3) or (4) of the AAT Act. New section 98C is not intended to impliedly limit the operation of subsections 35(3) or (4) of the AAT Act, which are sufficiently broad to permit the making of secondary non-disclosure orders. Instead, the purpose of new section 98C is to assist the Tribunal and the parties to understand the scope of such orders. For example, new section 98C may assist persons who have been permitted to make submissions on behalf of a party in a child support matter to understand their obligations, especially in light of the sensitive information about other persons to which they will be privy.

1469.      New subsection 98C(3) would preserve the offence of breaching a secondary non‑disclosure order in existing section 103ZAC. The note to subsection 98C(4) states that a defendant bears an evidential burden in relation to demonstrating that he or she had prior knowledge of the information in the secondary non-disclosure order—see subsection 13.3(3) of the Criminal Code. It is considered appropriate to cast the evidential burden on the defendant in these circumstances. The recipient of the information that is subject to the order would be best placed to know whether he or she knew the information before they were given the information at the review, and to produce appropriate evidence accordingly.

1470.      The penalty for the offence in section 98C would be increased to imprisonment for 12 months or 60 penalty units (consistently with other offence provisions in the Bill). This amendment would reflect the seriousness of conduct that undermines the Tribunal’s statutory review function.

New sections 98D—Parties to court proceedings—AAT first review or AAT second review

1471.      New section 98D would preserve the effect of existing section 110D, which ensures that the parties to an SSAT review are parties to any court proceeding on appeal from the SSAT decision. New section 98D would have the effect that the parties to an AAT first review, or an AAT second review, are parties to any appeal to a court on a question of law under Part IVA of the AAT Act in relation to that review. The reference to appeals under the AAT Act would flow from the changes proposed to judicial review (Item 66 of Schedule 4 to the Bill).

Item 65—Section 103ZB

1472.      Item 65 would repeal section 103ZB and insert a new section 103ZB, being a simplified outline of Part VIII. Part VIII deals with the jurisdiction of the courts in relation to matters arising under the Act. The new simplified outline would omit mention of the SSAT and appeals from SSAT decisions to courts. It would provide instead that appeals on questions of law from decisions of the AAT are dealt with under the AAT Act. This flows from the changes proposed at Item 66 of Schedule 4 to the Bill to judicial review pathways for decisions from the former SSAT.

Item 66—Division 3 of Part VIII

1473.      Item 66 would repeal Division 3 of Part VIII, which provides for appeals and references of questions of law from the SSAT to the courts.

1474.      The existing regime in Division 3 has the result that jurisdiction to hear appeals from SSAT decisions in child support matters is conferred on the Family Court, the Federal Circuit Court and certain State and Territory courts. This proliferation of jurisdictions is unnecessary and potentially confusing for applicants, many of whom are unrepresented. In practice the vast majority of matters are heard by the Federal Circuit Court, which has established a specialist child support panel to manage this caseload. The number of matters handled per annum by the Federal Circuit Court is relatively small (42 appeals from the SSAT were filed during 2013–14).

1475.      Under Part IVA of the AAT Act, appeals on a question of law lie from decisions of the AAT to the Federal Court. The Federal Court may transfer matters to the Federal Circuit Court, except where the decision was made by the Tribunal constituted by a member who is a judge. The amalgamation provides an opportunity to streamline judicial review pathways for child support matters on AAT first review by repealing Division 3 of Part VIII and applying Part IVA of the AAT Act in its place. This would simplify the options for the parties and create greater consistency on appeals across the amalgamated Tribunal (while noting that judicial review of most migration matters will continue to be governed by the Migration Act).

1476.      It is proposed that Part IVA of the AAT Act would be amended to confer jurisdiction on the Federal Circuit Court, in addition to the Federal Court, in respect of AAT first reviews of child support matters only (new section 44AAA, inserted by Item 129 of Schedule 1 of the Bill). This would preserve the availability of the Federal Circuit Court and recognise its existing role in this area of law.

Item 67—Section 110N

1477.      Item 67 would repeal the simplified outline at section 110N, and substitute a new section 110N with a revised simplified outline of Part VIIIA—Other provisions relating to review of decisions. The revised outline would include the information that:

·         the reconsideration of a decision by the Registrar, the AAT or a court does not affect the operation of the decision or prevent action being taken to implement it, and

·         a person might commit an offence if the person publishes an account of a proceeding in the AAT for AAT first review or AAT second review, or in a Federal Court or Federal Circuit Court appeal related to such a review, that identifies persons involved.

1478.      The revised outline would omit reference to Division 5 of Part VIIIA, which would be repealed (Item 79 of Schedule 4 to the Bill).

Item 68—Subsection 110P(2)

1479.      Item 68 would repeal subsection 110P(2) and substitute a new subsection 110P(2). Section 110P defines the scope of Division 1 of Part VIIIA, which deals with the effect of pending reconsiderations on assessments, registrations etc.

1480.      Existing subsection 110P(2) provides that Division 1 is subject to section 111C (stay orders). Section 111C currently provides for the power of a court to make stay orders in relation to proceedings including review proceedings before the SSAT. However, section 111C (and Division 1 more generally) does not currently deal with AAT proceedings. This is an omission which should be rectified, given that the AAT has the power to make stay orders:

·         On AAT second review, the AAT may make a stay order under subsection 41(2) of the AAT Act.

·         Section 44A of the AAT Act empowers the Federal Court to make a stay order on an appeal from the AAT.

·         New section 44AAA of the AAT Act (Item 129 of Schedule 1 to the Bill) would have the effect that the Federal Circuit Court may also make stay orders on appeals from the AAT.

1481.      The operation of Division 1 of Part VIIIA of the CSRC Act should not interfere with these powers. Accordingly, new subsection 110P(2) would provide that Division 1 is subject to the following provisions, which authorise the making of stay orders:

·         section 111C of the CSRC Act

·         section 41 of the AAT Act, and

·         section 44A of the AAT Act (in relation to the Federal Court), including as it applies because of paragraph 44AAA(2)(b) of the AAT Act (in relation to the Federal Circuit Court).

Item 69—Paragraphs 110Q(b) and (c)

1482.      Item 69 would repeal paragraphs 110Q(b) and (c) and substitute new paragraphs 110Q(b) and (c).

1483.      Existing section 110Q defines the term ‘reconsideration’ for the purposes of the CSRC Act. Paragraphs 110Q(b) and (c) provide that ‘reconsideration’ includes an application to the SSAT under Part VIIA, and an appeal to a court from an SSAT review under Division 3 of Part VIII.

1484.      New paragraphs 110Q(b) and (c) would provide that ‘reconsideration’ for the purposes of the CSRC Act includes an application to the AAT for AAT first review or AAT second review, and an appeal to a court from an AAT review under Part IVA of the AAT Act.

1485.      These amendments would rectify the existing gap whereby AAT second review proceedings do not fall within the definition of “reconsideration”, and would also include appeals under Part IVA of the AAT Act.

Item 70—Section 110V

1486.      Item 70 would amend section 110V to omit reference to the ‘SSAT’ and substitute ‘AAT’. Section 110V provides that when the Registrar, the SSAT or a court makes a decision on reconsideration, the Registrar must immediately take such action as is necessary to give effect to the decision. The amendment would ensure that section 110V applies to the amalgamated Tribunal.

Item 71—Subsection 110W(1), Item 72—Subparagraph 110W(4)(b)(ii), Item 73—Subparagraph 110W(4)(b)(iii)

1487.      Item 71 would repeal subsection 110W(1) and substitute new subsections 110W(1) and (1A).

1488.      Existing section 110W describes how to determine when a decision becomes final. Subsection 110W(1) provides that for the purposes of the CSA Act and the CSRC Act, if:

·         a decision is a decision of the SSAT, and

·         an appeal may be made to a court under Subdivision B of Division 3 of Part VIII against the decision, and

·         an appeal is not made within the period for doing so, then

·         the decision becomes final at the end of the period.

1489.      Existing section 110W does not incorporate a definition of when AAT decisions become final.

1490.      New subsection 110W(1) would preserve the effect of existing subsection 110W(1). It would provide that if:

·         a decision is a decision of the AAT on AAT first review or second review, and

·         for a decision on AAT first review—no application may be made for AAT second review, and

·         an appeal may be made to a court under the AAT Act, and

·         an appeal is not made within the period for doing so, then

·         the decision becomes final at the end of the period.

1491.      New subsection 110W(1A) would provide that if:

·         a decision is a decision of the AAT on AAT first review, and

·         an application may be made for AAT second review, and

·         an application is not made within the period for doing so, then

·         the decision becomes final at the end of the period.

1492.      New subsections 110W(1) and (1A) would retain the effect of existing section 110W, while also rectifying the omission that it does not cover AAT second review. References to Division 3 of Part VIII would be removed in light of its repeal (Item 66 of Schedule 4 to the Bill).

1493.      Subsection 110W(4) describes when decisions of the Registrar become final. In that context subparagraphs 110W(4)(b)(ii) and 110W(4)(b)(iii) refer to the SSAT and to appeals under Subdivision B of Division 3 of Part VIII. Items 72 and 73 would amend subparagraphs 110W(4)(b)(ii) and 110W(4)(b)(iii) to remove these references and substitute references to the AAT and Part IVA of the AAT Act, respectively. These consequential amendments would flow from the abolition of the SSAT and the repeal of Division 3 of Part VIII (Item 66 of Schedule 4 to the Bill).

Items 74 to 78—Section 110X

1494.      Items 74 to 78 would amend section 110X, which provides restrictions on the publication of review proceedings under Part VIIA (SSAT proceedings) or Division 3 of Part VIII (appeals to courts from SSAT proceedings). No change to existing policy is intended.

1495.      Item 74 would amend paragraph 110X(1)(a) to omit reference to proceedings under Part VIIA or Division 3 of Part VIII, and substitute reference to ‘designated review proceedings’. Item 76 would make the same amendment to paragraph 110X(3)(a).

1496.      Item 75 would amend subparagraph 110X(3)(a)(ii) to refer to the AAT instead of the SSAT.

1497.      Item 77 would repeal paragraph 110X(4)(e) and substitute new paragraph 110X(4)(e), with the effect that subsections 110X(1) and (3) would not apply to the publication by the AAT of lists of designated review proceedings.

1498.      Item 78 would insert a new definition of ‘designated review proceedings’ into subsection 110X(7). This term would mean proceedings in the AAT for AAT first review or AAT second review, or proceedings in a court under Part IVA of the AAT Act in relation to such a review.

1499.      These amendments would ensure that the restrictions and protections around the publication of review proceedings in section 110X would apply to the amalgamated Tribunal.

Item 79—Division 5 of Part VIIIA

1500.      Item 79 would repeal Division 5 of Part VIIIA, which deals with modifications of the AAT Act in relation to AAT review. Division 5 comprises sections 110XA, 110XB, 110XC, 110XD, 110XE and 110XF. These sections have been renumbered and relocated to new Division 5 of Part VIIA (other matters relating to AAT second review) (Item 64 of Schedule 4 to the Bill).

Item 80—paragraph 110Y(5)(b)

1501.      Item 80 would amend paragraph 110Y(5)(b).

1502.      Existing section 110Y deals with the date of effect of decisions on internal review under the FAA Act that apply for child support purposes. Paragraph 110Y(5)(b) would provide that a notice given to a person in relation to a determination on the date of effect of a decision must include a statement to the effect that if the person is aggrieved by the decision, application may be made to the SSAT for review.

1503.      New paragraph 110Y(5)(b) would provide for notification that applications may be made to the AAT. No other change to existing policy is intended.

Item 81—section 110Z (heading)

1504.      Item 81 would repeal the heading to section 110Z and substitute a new heading, ‘Date of effect of AAT first reviews under the FAA Act that apply for child support purposes’. This change would be necessary as the existing heading refers to the SSAT.

Items 82—Paragraph 110Z(1)(a) and Item 83—Paragraph 110Z(5)(b)

1505.      Item 82 would repeal paragraph 110Z(1)(a) and substitute a new paragraph 110Z(1)(a). Item 83 would amend paragraph 110Z(5)(b).

1506.      Existing section 110Z of the CSRC Act deals with the date of effect of SSAT decisions on reviews under the FAA Act that apply for child support purposes. Paragraphs 110Z(1)(a) and 110Z(5)(b) would be amended to omit references to the SSAT, and would refer instead to the ‘AAT’, ‘AAT first review’, and the AAT Act, as appropriate.

1507.      No other change to existing policy is intended.

Item 84—Section 111A

1508.      Item 84 would repeal section 111A and substitute a revised simplified outline of Part VIIIB which deals with other provisions relating to courts.

1509.      The revised simplified outline would not refer to the SSAT. Relevantly to the amalgamation, it would clarify that courts under Part VIIIB may not make stay orders in relation to AAT second review, since the AAT Act makes provision for stay orders.

Item 85—Paragraph 111C(1)(c) and Item 86—Subparagraph 111C(5)(b)(ii)

1510.      Item 85 would repeal paragraph 111C(1)(c) and substitute new paragraph 111(1)(c). Item 86 would amend subparagraph 111C(5)(b)(ii).

1511.      Existing section 111C provides for the power of courts having jurisdiction under the CSRC Act to make stay orders. Subsection 111C(1) defines the scope of application of section 111C. Pursuant to paragraph 111C(1)(c), section 111C applies if a proceeding has been instituted before the SSAT under Part VIIA of the Act. The effect of section 111C is that a party to an SSAT application may seek a court order staying the decision under review by the SSAT. It is noted that, in practice, this rarely occurs.

1512.      New paragraph 111(1)(c) would provide that section 111C applies if a proceeding has been instituted before the AAT for AAT first review. This would preserve the existing position in respect of SSAT reviews. Section 111C would not apply to AAT second reviews, as in such circumstances the AAT has the power to issue a stay order under subsection 41(2) of the AAT Act.

1513.      Existing subsection 111C(5) provides that a stay order issued by a court under subsection 111C(3) operates for such period as is specified in the order, or if no such period is specified, until a decision of a court, the Registrar or the SSAT determining the proceeding is final.

1514.      New subparagraph 111C(5)(b)(ii) would omit the reference to the SSAT in subsection 111C(5) and replace it with a reference to the AAT. No policy change is intended. The reference to the AAT in subparagraph 111C(5)(b)(ii) should be read consistently with the scope of section 111C to be limited to the AAT on first review.

Item 87—Subsection 116(1A) and Item 88—Subsection 116(1B)

1515.      Item 87 would amend subsection 116(1A) and Item 88 would amend subsection 116(1B).

1516.      Section 116 provides that the production of certain documents signed by the Registrar is prima facie evidence of various matters related to registrable maintenance liabilities. Subsection 116(1A) and 116(1B) contain exceptions in relation to particular proceedings, including proceedings under Part VII or VIIA, or under Subdivision B of Division 3 of Part VIII. Proceedings under Part VIIA are SSAT proceedings, while proceedings under Subdivision B of Division 3 of Part VIII are court proceedings on appeal from SSAT proceedings.

1517.      Amended subsections 116(1A) and 116(1B) would omit reference to proceedings under Part VIIA and proceedings under Subdivision B of Division 3 of Part VIII, and instead refer to proceedings in the AAT for an AAT first review or AAT second review, or in a court under Part IVA of the AAT Act in relation to such a review. These changes would ensure the integrity of AAT proceedings where a person seeks to challenge aspects of the document signed by the Registrar, whether on first or second review or in court in judicial review proceedings under Part IVA of the AAT Act.


Schedule 5—Family assistance amendments

Overview

1518.      Schedule 5 to the Bill would amend the FA Act and the FAA Act to support amalgamation.

1519.      The amendments to the FAA Act are minor consequential amendments in light of the abolition of the SSAT.

1520.      Key amendments proposed to the FAA Act include:

·         Amendments to transfer the merits review jurisdiction of the SSAT to the AAT, with existing rights to merits review being preserved (including second review by the AAT of SSAT decisions).

·         New defined terms of ‘AAT first review’, ‘AAT second review’ and ‘AAT single review’ corresponding to existing SSAT and AAT reviews.

·         Amendments to preserve existing procedures for merits review of family assistance matters, including amendments to modify the procedures generally applicable under the AAT Act.

·         Amendments to modernise and simplify the drafting of the provisions of the FAA Act relating to external merits review, without altering existing policy.

·         Consequential amendments, including replacing references to the SSAT with references to the AAT.

Amendments to A New Tax System (Family Assistance) Act 1999

Item 1—Subsection 35U(1) and Item—2 Subsections 35U(2) and (3)

1521.      Items 1 and 2 would amend section 35U to replace references to the SSAT with the AAT.

1522.      Existing section 35U ensures that reviews of care percentage decisions under child support law will apply for family assistance purposes. Subsection 35U(2) deals with when the SSAT reviews such a decision. Subsection 35U(3) deals with when the AAT reviews a decision under the AAT Act. The provisions are otherwise identical. Following amalgamation only one provision would be needed.

1523.      Item 2 would insert new subsection 35U(2) as a single provision to ensure that an AAT review of a care percentage decision under the child support law would apply for family assistance purposes. Item 1 would renumber the subsections in section 35U. No policy change is intended.

Amendments to A New Tax System (Family Assistance) (Administration) Act 1999

Item 3—Subsection 3(1)

1524.      Item 3 would insert new definitions into section 3 of:

·         ‘AAT first review’

·         ‘AAT second review’, and

·         ‘AAT single review’.

1525.      ‘AAT first review’ would refer to review of decisions in respect of which applications may be made under new section 111 (Items 16-20 of Schedule 5 to the Bill). This would comprise those applications which may currently be made to the SSAT.

1526.      ‘AAT second review’ would refer to review of decisions in respect of which applications may be made under new section 128 (Item 23 of Schedule 5 to the Bill). This would comprise those applications which may currently be made to the AAT for review of decisions of the SSAT.

1527.      ‘AAT single review’ would refer to review of decisions in respect of which applications may be made under new section 138 (Item 23 of Schedule 5 to the Bill). This would comprise those applications which may currently be made to the AAT directly, namely certain decisions in relation to child care services and registered carers that have been made on internal review, and certain decisions made by agency heads personally or in the exercise of a delegated power.

1528.      The new definitions of ‘AAT first review’ and ‘AAT second review’ would facilitate the maintenance of the existing two-tiered review process in respect of certain family assistance matters, but with this process occurring within the amalgamated Tribunal. The definition of ‘AAT single review’ would ensure that existing policy with respect to review of decisions under section 138 would remain unchanged. The definitions would also facilitate the preservation of differentiated procedures on AAT first review and AAT second review, as the AAT Act and the FAA Act would prescribe procedural rules specific to each category. This is consistent with existing policy, as in some respects the procedures of the AAT and the SSAT in reviewing family assistance matters differ. There would be no change to the types of decisions that may be reviewed.

Item 4—Subsection 3(1)

1529.      Item 4 would repeal the definitions of ‘SSAT’,’ SSAT member’ and ‘Principal Member’ from subsection 3(1), in light of the abolition of the SSAT.

Item 5—Paragraph 73(a)

1530.      Item 5 would omit the words ‘under section 142 for review’ in paragraph 73(a) and substitute the words ‘for AAT second review’.

1531.      Existing section 73 has the effect that if a person applies to the AAT for review of a decision and the AAT makes a stay order under subsection 41(2) of the AAT Act, and as a result the amount of a family assistance payment that has been paid is greater than should have been paid, then the difference is a debt due to the Commonwealth.

1532.      The amendment would be consequential to the insertion of ‘AAT second review’ as a defined term in the Act (see Item 3 of Schedule 5 to the Bill). No change to existing policy is intended.

Item 6—Subsection 105(2)

1533.      Item 6 would repeal existing subsection 105(2) and substitute a new subsection 105(2).

1534.      Existing subsection 105(2) provides that the Secretary may review certain decisions on his or her own initiative even if an application for review of the decision has been made to the SSAT or the AAT. New subsection 105(2) would only refer to review of decisions by the AAT. No policy change is intended.

Item 7—Subsection 106(6)

1535.      Item 7 would repeal existing subsection 106(6) and substitute a new subsection 106(6).

1536.      Existing subsection 106(6) has the effect that if the Secretary varies a decision, or sets it aside and substitutes a new decision, and an application for review of the decision has been made to the SSAT or AAT, the Secretary must give written notice of the decision as varied or substituted to the Principal Member of the SSAT or the Registrar of the AAT.

1537.      New subsection 106(6) would preserve the policy of the existing provision but omit references to the SSAT and SSAT Principal Member.

Item 8—Subsection 109A(4)

1538.      Item 8 would amend subsection 109A(4) to omit reference to the ‘SSAT’ and substitute ‘AAT’.

1539.      Existing subsection 109A(4) provides that if a person who may apply to the Secretary or Child Support Registrar for review of a decision has not done so, and the person applies to the SSAT for a review of the decision, the person is taken to have applied to the Secretary or the Child Support Registrar for review on the day on which they applied to the SSAT.

1540.      The amendment would not change the existing policy that a person must seek internal review before external merits review.

Item 9—Subsection 109D(6) (paragraph (c) of the definition of excepted decision) and Item 10—Section 109DA

1541.      Items 9 and 10 would amend subsection 109D(6) and section 109DA to remove references to subsection 144(1) and substitute references to subsection 138(4).

1542.      Existing subsection 109D(6) provides a definition for ‘excepted decision’ which includes reference to decisions of a kind mentioned in subsection 144(1).

1543.      Existing section 109DA provides a time limit for applications for internal review under subsection 109A(1) of decisions of a kind mentioned in subsection 144(1).

1544.      The amendments would reflect the renumbering of section 144. Section 144 describes decisions (in relation to child care services and registered carers) in respect of which applications for AAT single review may be made. No change to existing policy is intended.

Item 11—Paragraph 109H(1)(a)

1545.      Item 11 would omit ‘subject to this Part, apply to the SSAT’ from paragraph 109H(1)(a), substituting ‘subject to this Part and the AAT Act, apply to the AAT’.

1546.      Existing paragraph 109H(1)(a) provides that if a decision reviewer gives an applicant notice under section 109B of a decision reviewed under section 109A (internal review initiated by the applicant), the notice must include a statement that the applicant may, subject to section 109H, apply to the SSAT for review of the decision.

1547.      The amendment would ensure that persons continue to be notified of their right to merits review by the amalgamated Tribunal.

Item 12—Subparagraph 109H(1)(b)(iii) and Item 13—Paragraph 109H(1)(c)

1548.      Item 13 would repeal paragraph 109H(1)(c).

1549.      Existing paragraph 109H(1)(c) provides that if a decision reviewer gives an applicant notice under section 109B of a decision reviewed under section 109A (internal review initiated by the applicant), the notice must include a statement to the effect that if the applicant applies to the SSAT for review and is dissatisfied with the SSAT’s decision on review, the person may apply to the AAT for review of the SSAT’s decision.

1550.      The repeal of paragraph 109H(1)(c) is appropriate in light of the amalgamation. It is not necessary to give notice of rights to AAT second review prior to a person making an application to the Tribunal for AAT first review. New subsections 43(5AA)–(5AC) of the AAT Act (Item 118 of Schedule 1 to the Bill) would require the Tribunal, upon completion of AAT first review, to notify persons of their right to second review. This would ensure parties are aware of their further review rights in all cases.

1551.      Item 12 would omit the words ‘based; and’ and substitute ‘based’ in subparagraph 109H(1)(b)(iii). This minor consequential amendment follows from Item 13.

Item 14—Division 2 of Part 5 (heading)

1552.      Item 14 would repeal the heading of Division 2, substituting ‘Division 2—Review by Administrative Appeals Tribunal’. The existing heading of Division 2, ‘Review by the Social Security Appeals Tribunal’ is no longer required.

Item 15—Section 110

1553.      Item 15 would repeal section 110, substituting:

·         a new heading ‘Subdivision A—Simplified outline of this Division’

·         a new section 110, being a simplified outline of Division 2, and

·         a new heading ‘Subdivision B—Application for AAT first review’.

1554.      Existing section 110, which provides the objective of the SSAT, is unnecessary. The objective for the amalgamated Tribunal would be provided in amended section 2A of the AAT Act (Item 1, Schedule 1 of the Bill).

1555.      New section 110 would assist readers by explaining the right to AAT first review, AAT second review and AAT single review. It would also explain the interaction between the AAT Act and the FAA Act in relation to reviews by the AAT. In effect, the AAT Act applies unless it is modified by the FAA Act. New section 110 would also inform readers that the AAT Act provides for judicial review from AAT decisions in some circumstances.

Item 16—Section 111 (heading)

1556.      Item 16 would repeal the heading of section 111 ‘Application for review by SSAT’, substituting a new heading ‘Application for AAT first review’.

Item 17—Subsection 111(1), Item 18—Subsection 111(1) (note) and Item 19—Subsection 111(1A)

1557.      Item 17 would amend subsection 111(1) to omit ‘a person affected by the decision may apply to the Social Security Appeals Tribunal for review’ and substitute ‘application may be made to the AAT for review (AAT first review)’.

1558.      Item 19 would amend subsection 111(1A) to omit ‘a person whose interests are affected by the decision may apply to the SSAT for review’ and substitute ‘an application be made to the AAT for review (also AAT first review)’.

1559.      Existing section 111 is the core provision conferring an entitlement on a person to make an application for review to the SSAT in respect of:

·         certain decisions on internal review to affirm, vary or set aside a decision under Division 1 of Part 5, and

·         decisions made by the Secretary personally (other than decisions made under Division 2 of Part 8C of the FAA Act) or by another agency head, the Chief Executive Centrelink or the Chief Executive Medicare in the exercise of a delegated power.

1560.      New section 111 would not change existing policy in relation to who may apply for review, or the types of decisions in respect of which applications for review may be made. The purpose of the amendments is to transfer the review jurisdiction of the SSAT to the AAT.

1561.      Item 18 would make a minor consequential amendment to omit ‘under this section’ in the note under subsection 111(1).

Item 20—Paragraph 111(2)(c) and Item 21—Paragraph 111(2)(e)

1562.      Item 20 would omit ‘112’, substituting ‘113’ in paragraph 111(2)(c).

1563.      Item 21 would omit references to ‘section 146’, substituting ‘section 137 or 141’ in paragraph 111(2)(e).

1564.      The amendments would be necessary as a consequence of renumbering the provisions in new Subdivision B and would not affect the substance of the provisions.

Item 22—Sections 111A to 118

1565.      Item 22 would repeal sections 111A to 118, which form part of existing Division 2 of Part 5 of the FAA Act, and would substitute:

·         a new section 111A

·         a new heading ‘Subdivision C—Other matters relating to AAT first review’, and

·         new sections 112 to 127.

1566.      The repeal of sections 111A to 118 is appropriate in light of the amalgamation. Part IV of the AAT Act provides a general procedural framework for external merits review. It would no longer be necessary for the FAA Act to provide comprehensive procedural rules for external merits review, since Part IV of the AAT Act would apply, unless otherwise modified or excluded by the FAA Act. To that end, new Subdivision C of Division 2 of the FAA Act would add to or modify certain provisions of the AAT Act in relation to AAT first review of decisions which are reviewable under the family assistance law. This would have the effect of preserving existing procedures applicable to SSAT reviews, where necessary, to support the conduct of merits review by the amalgamated Tribunal.

1567.      The effect of existing sections 111A to 118 would be preserved either through provisions of the AAT Act, or provisions in new Subdivision C as inserted by this item, as follows:

·         section 111A—Time limits applicable to review by the SSAT of certain decisions—would be covered by new section 111A

·         section 111B—Date of effect of certain SSAT decisions relating to payment of family tax benefit instalment—would be covered by new section 125

·         section 112—Payment pending outcome of SSAT review—would be covered by new section 113

·         section 113—SSAT review powers—would be covered by subsection 43(1) of the AAT Act and new sections 123 and 124

·         section 114—Powers of the SSAT—would be covered by the standard rules in subsection 43(1) AAT Act

·         section 116—SSAT application requirements—would be covered by the standard rules in subsection 29(1) and 29AA of the AAT Act

·         section 117—Variation of decision before SSAT review completed—would be covered by new section 115, and

·         section 118—Parties to SSAT review—would be covered by the standard rules in section 30 of the AAT Act.

New section 111A

1568.      Existing subsection 111A(1) provides that applications for review of decisions under section 111 by the SSAT must be made no later than 13 weeks after the person is notified of the decision, except for those decisions described in subsection 111A(3) (‘excepted decisions’). Pursuant to subsection 111A(2), the SSAT may extend the time limit for applications to be made, in special circumstances.

1569.      In the amalgamated Tribunal, section 29 of the AAT Act would govern applications for AAT first review. Paragraph 29(1)(d) of the AAT Act has the effect that applications must generally be made within 28 days of the person receiving notice of the relevant decisions. Subsections 29(7) to (10) have the effect that the Tribunal may extend time for making an application.

1570.      Accordingly, new section 111A would modify the standard rules in the AAT Act so as to preserve the effect of existing section 111A. Specifically:

·         new subsection 111A(1) would provide that an application for AAT first review (other than for an excepted decision) must be made no later than 13 weeks after the person is notified of the decision

·         new subsection 111A(2) would provide that the AAT may permit a person to make an application outside of the required 13 week period if it determines there are special circumstances that prevented that person from making the application in time

·         new subsection 111A(3) would provide that subsections (1) and (2) apply despite paragraph 29(1)(d) and subsections 29(7) to (10) of the AAT Act, and

·         new subsection 111A(4) would provide that paragraph 29(1)(d) does not apply in relation to an application for AAT first review of an excepted decision (as defined in subsection 111A(5)). This would preserve the existing position that there are no time limits for applying for review of excepted decisions.

1571.      New section 111A would ensure that existing timeframes for applying for review of family assistance matters would be preserved in the amalgamated Tribunal for AAT first review.

Subdivision C—Other matters relating to AAT first review
New section 112—Operation and implementation of decision under AAT first review

1572.      New section 11