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Tribunals Amalgamation Bill 2014



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ISSN 1328-8091

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BILLS DIGEST NO. 83, 2014-15 19 MARCH 2015

Tribunals Amalgamation Bill 2014 Moira Coombs, Claire Petrie and Dy Spooner Law and Bills Digest Section

Contents

Abbreviations ...................................................................... 3

Purpose of the Bill ............................................................... 4

Background ......................................................................... 4

National Commission of Audit ................................................. 5

Better Decisions Report 1994 .................................................. 5

The Skehill Report .................................................................... 5

Administrative Review Tribunal 2000 ..................................... 6

Merits review: what does it mean ........................................... 7

Super Tribunals: the states’ and territories’ civil and administrative tribunals .......................................................... 7

Second-tier review .................................................................. 9

Committee consideration .................................................. 10

Senate Legal and Constitutional Affairs Legislation Committee ............................................................................. 10

Senate Standing Committee for the Scrutiny of Bills ............ 10

Termination of appointments ........................................... 10

President’s directions ........................................................ 10

Review on the papers ........................................................ 11

Regulation-making power ................................................. 11

Statement of Compatibility with Human Rights .................... 11

Position of major interest groups ....................................... 11

Financial implications ........................................................ 13

Key issues and provisions................................................... 13

Schedule 1—Administrative Appeals Tribunal Act 1975 ...... 13

AAT’s Objective ...................................................................... 13

Second Review .................................................................... 14

Date introduced: 3 December 2014

House: Senate

Portfolio: Attorney-General

Commencement: Sections 1 to 3 on the day of Royal Assent. Schedule 1 and Schedule 2 Parts 1 and 2 on 1 July 2015. Other schedules on various dates as set out in the table in clause 2 of the Bill.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

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Decisions on the papers .................................................... 15

Comment ........................................................................... 15

Members ............................................................................... 15

Qualifications for members ................................................... 15

Termination of appointment (not judges) ............................. 16

Comment ........................................................................... 16

Organisation of the Tribunal.................................................. 16

Comment ........................................................................... 17

Comment ........................................................................... 17

Part IV of the AAT Act .......................................................... 17

Oral Applications ................................................................... 18

Representation before the Tribunal ...................................... 18

Appeals to the Federal Court of Australia and the Federal Circuit of Australia ................................................. 18

Other Matters ................................................................... 19

Schedule 2—Migration Amendments ................................. 19

Part 1—Main amendments ................................................. 19

Part 5—Review of Part 5-reviewable decisions ................ 20

Part 7—Review of Part 7-reviewable decisions ................ 20

Part 2—Multiple amendments ............................................ 20

Part 3—Contingent amendments ....................................... 20

Schedule 4 - Child support amendments .............................. 22

AAT first review ................................................................... 22

AAT second review .............................................................. 23

Procedural amendments ..................................................... 23

Judicial review ..................................................................... 23

Schedule 5—Family assistance amendments ...................... 23

Schedule 6—Paid Parental leave amendments ................... 24

Schedule 7—Student assistance amendments ..................... 24

Schedule 8—Other consequential amendments .................. 25

Schedule 9—Transitional and saving provisions ................... 25

Concluding Comments ....................................................... 25

Appendix A ....................................................................... 26

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Abbreviations The following abbreviations are used throughout this Bills Digest.

Administration Act Social Security (Administration) Act 1999

AAT Administrative Appeals Tribunal

AAT Act Administrative Appeals Tribunal 1975

CSAA Child Support (Assessment) Act 1989

CSRC Child Support (Registration and Collection) Act 1988

FA A New Tax System (Family Assistance) Act 1999

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

Migration Act Migration Act 1958

MRT Migration Review Tribunal

PPL Act Paid Parental Leave Act 2010

RRT Refugee Review Tribunal

SAA Student Assistance Act 1973

SSAT Social Security Appeals Tribunal

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Purpose of the Bill The purpose of the Tribunals Amalgamation Bill 2014 (the Bill) is to amend a number of Acts to amalgamate the Social Security Appeals Tribunal and the Migration Review Tribunal—Refugee Review Tribunal with the Administrative Appeals Tribunal (AAT). The Bill will:

• amend the Administrative Appeals Tribunal Act 1975 (AAT Act)1

- to establish the governance structure for the amalgamated AAT incorporating the Social Security Appeals Tribunal (SSAT) and the Migration Review Tribunal (MRT)—Refugee Review Tribunal (RRT) - to harmonise and streamline procedural matters for the amalgamated tribunal • amend the Migration Act 19582 to make the necessary consequential amendments to amalgamate the MRT

and the RRT with the AAT

• amend the:

- Social Security Act 19913 - Social Security (Administration) Act 1999 (the Administration Act)4 - Child Support (Assessment) Act 1989 (CSAA)5 - Child Support (Registration and Collection) Act 1988 (CSRC)6 - A New Tax System (Family Assistance) Act 1999 (FA)7 - A New Tax System (Family Assistance) (Administration) Act 1999 (FAA)8 - Paid Parental Leave Act 2010 (Parental Leave Act)9and - Student Assistance Act 1973 (SAA Act)10 to transfer the merits review jurisdiction of the SSAT to the AAT and make associated consequential amendments to amalgamate the SSAT with the AAT. Existing rights to merits review will be preserved, including the right to a second review within the Tribunal.

Background The Bill proposes to amalgamate the Administrative Appeals Tribunal, the Migration Review Tribunal (MRT), Refugee Review Tribunal (RRT) and the Social Security Appeals Tribunals (SSAT) and merge them into a single tribunal which will continue to be called the Administrative Appeals Tribunal (AAT). The Veterans’ Review Board and the Classification Review Board are not included in the amalgamation.11

The purpose for setting up the AAT in 1975, was to create a coordinated tribunal to ‘review decisions by Ministers and officials given under powers conferred by legislation of this Parliament or by ordinances of the Australian Capital Territory and the Northern Territory’.12 The Attorney-General, Kep Enderby noted at the time:

An inevitable development of modern government has been the vesting of extensive discretionary powers in Ministers and officials in matters that affect a wide spectrum of business and personal life. Unfortunately, this development has not been accompanied by a parallel development of comprehensive machinery to provide for an independent review of the way these discretions are exercised. While there has been established a considerable number of review tribunals of one kind or another under the legislation of this Parliament, these have not developed in any coordinated fashion.

13

1. Administrative Appeals Tribunal Act 1975, accessed 12 February 2015. 2. Migration Act 1958, accessed 12 February 2015. 3. Social Security Act 1991, accessed 12 February 2015. 4. Social Security (Administration) Act 1991, accessed 12 February 2015. 5. Child Support (Assessment) Act 1989, accessed 14 March 2015. 6. Child Support (Registration and Collection) Act 1988, accessed 14 March 2015. 7. A New Tax System (Family Assistance) Act 1999, accessed 12 February 2015. 8. A New Tax System (Family Assistance) (Administration) Act 1999, accessed 12 February 2015. 9. Paid Parental Leave Act 2010, accessed 12 February 2015. 10. Student Assistance Act 1973, accessed 12 February 2015. 11. Explanatory Memorandum, Tribunals Amalgamation Bill 2014, p. 2, accessed 14 March 2015. 12. K Enderby (Attorney-General), ‘Second reading speech: Administrative Appeals Tribunal Bill 1975’, House of Representatives, Debates,

6 March 1975, p. 1, accessed 14 March 2015. 13. Ibid.

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The policy at the time in relation to the new Tribunal was that:

Ad hoc appeal tribunals will not be established under future legislation except where special circumstances make it desirable that there should be special tribunals. Cabinet has also directed that future proposals for special tribunals and for substantial departures from the standard procedures before the Administrative Appeals Tribunal are to be referred to the Attorney-General’s Department for comment and discussion before the drafting of legislation. The establishment of the Administrative Appeals Tribunal will be a significant milestone in the development in the administrative law of this country.

14

National Commission of Audit The most recent proposal to amalgamate Commonwealth tribunals was made in the report of the National Commission of Audit in 2014. Phase One of the National Commission of Audit report, released in February 2014, recommended merging the resources of the Commonwealth’s civilian merits review tribunals. The report noted:

Merging the resources of the Commonwealth’s civilian merits review tribunals can provide significant medium to long-term savings and better services. This is demonstrated by the successful establishment of amalgamated ‘super tribunals’ in State jurisdictions. A single tribunal model would also provide the opportunity to reassess whether the cost of multiple layers of external merits review as a right is justified in a modern merits review framework, particularly given judicial review of all decisions is available in the courts.

The Commission proposes that Commonwealth civilian merits review tribunals should be amalgamated within the Administrative Appeals Tribunal. The Commission does not propose the Veterans’ Review Board be included as it essentially operates as a division of the Department of Veterans’ Affairs and focuses on defence-related matters. 15

Given potential financial and cultural hurdles could impede the proposed consolidation of tribunals, amalgamation might be best undertaken incrementally. 16

Better Decisions Report 1994 The Administrative Review Council (ARC) was asked in 1993 by the then Minister for Justice, Duncan Kerr, to inquire into the effectiveness of the Commonwealth system of external merits review tribunals.17 The focus for the inquiry was the five main Commonwealth review tribunals: the AAT, the Veterans’ Review Board (VRB), the SSAT, the Immigration Review Tribunal (IRT) and the RRT. The ARC made a number of recommendations, but noted in Recommendation 87 that the VRB, the SSAT, the IRT, RRT and the AAT should be united into a new tribunal, to be called the Administrative Review Tribunal (the ART).18

The ARC concluded in relation to this recommendation:

The challenge has been to design a system that retains all of the positive attributes of the individual merits review tribunals, but which also achieves greater perceived and actual independence, improvements in agency decision-making, and improved accessibility and economic efficiencies. 19

The Skehill Report Stephen Skehill, former Secretary of the Attorney-General’s Department and Special Counsel in Mallesons Stephen Jacques, was appointed to undertake a review in August 2011. The purpose of the review was to ‘assess small and medium agencies in the Attorney-General’s portfolio with reference to the expenditure review

14. Ibid., pp. 2-3. 15. The Veterans’ Review Board (VRB) is an independent body established by the Repatriation Legislation Amendment Act 1984 and continued in existence by the Veterans’ Entitlements Act 1986. It also has jurisdiction under the Military Rehabilitation and Compensation Act 2004. The Board comes within the portfolio of the Minister for Veterans’ Affairs.

16. National Commission of Audit, Towards responsible Government, report, Phase 1, February 2014, pp. 211-212, accessed 14 March 2015. 17. Administrative Review Council, Better decisions: review of Commonwealth Merits Review Tribunals, report no. 39, 1995, p. 7, accessed 14 March 2015. 18. Ibid., p. 142. 19. Ibid., p. 137.

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principles (appropriateness, effectiveness, efficiency, integration, performance assessment and strategic alignment) and advise on a range of options for improving their value for money for the Government’.20

Recommendation 7.1 of the report recommended that the ART proposal as recommended by the ARC should be endorsed as the Government’s desired end-state (subject to a resolution of an issue that had arisen in relation to ensuring that appeal rights (specifically, the availability of a second merits review) would not be reduced by tribunal amalgamation). It also recommended that the ARC model should be extended so that, unless a compelling case was made to the contrary, all Commonwealth merits review bodies should be ‘rolled into’ the ART, not just the five major tribunals considered in the ARC report.21

Administrative Review Tribunal 2000 The Administrative Review Tribunal Bill 2000, which proposed to replace the AAT, SSAT, MRT and RRT with the Administrative Review Tribunal (ART) was introduced into the House of Representatives on 26 June 2000.22

The Attorney-General noted in his second reading speech:

The goal of creating a tribunal that provides individuals with an appropriate review forum and encourages efficient public administration is reflected in the objects set out in the Bill. These include:

• to ensure that the Administrative Review Tribunal provides an accessible mechanism for reviewing decisions that is fair, just, economical, informal and quick; • to enable the tribunal to review decisions in a non-adversarial way; and • to enable the tribunal to use flexible and streamlined procedures and a variety of processes, including inquiries and

conferences, for resolving issues.

The new tribunal will be headed by an independent president, appointed by the Governor-General as a statutory office-holder. The president will be responsible for the operation and administration of the tribunal. Unlike the President of the AAT, there is no requirement in the Bill that the president of the new tribunal be a judge. This is in keeping with the government's goal of creating an informal, non-legalistic environment in the new tribunal. Other members will also be appointed by the Governor-General.

23

The Bill was defeated in the Senate on 26 February 2001. Skehill notes in his report that ‘while it [the Bill] would nominally have created the ART, it went far beyond the course of action recommended by the ARC’.24 That course of action recommended ‘that the main Commonwealth tribunals should be merged into a new Administrative Review Tribunal (ART). The ARC proposals were designed to enable efficiencies to be gained across multiple tribunal administrations, to rationalise appeal rights as between tribunals, and to facilitate ease of access for persons seeking to challenge decisions of Commonwealth officers’.25 As Creyke noted in 2001:

The proposed ART was, by contrast, to be positively monocultural. The ART was not to exercise original jurisdiction nor civil jurisdiction. The Tribunal was to be solely a review body with a case-load which would comprise decisions made only by administrators… The structure of the ART was fragmented, not coherent. In addition, the constitutional inhibitions on the exercise of judicial power meant that the ART would never be in a position, for example, to impose fines or to exercise a judicial review jurisdiction…It was clear that the ART was intended to be at the administrative rather than the judicial end of the spectrum of adjudicative bodies.

26

The Shadow Attorney-General at the time, Robert McClelland, opposed the Bill on a number of grounds:

• the structure of the ART as proposed in that Bill

• the proposed funding arrangements

20. S Skehill, Strategic review of Small and Medium Agencies in the Attorney-General’s Portfolio: report to the Australian Government, Terms of Reference, January 2012, p. vii, accessed 12 March 2015. 21. Ibid., p. 98. 22. Parliament of Australia, ‘Administrative Review Tribunal Bill 2000 homepage’, Australian Parliament website, accessed 14 March 2015. 23. D Williams, ‘Second reading speech: Administrative Review Tribunal Bill 2000’, House of Representatives, Debates, 28 June 2000, p. 18404,

accessed 12 March 2015. 24. S Skehill, Strategic review of Small and Medium Agencies in the Attorney-General’s Portfolio, op. cit., p. 89. 25. Ibid., pp. 87-88. 26. R Creyke, Tribunals: divergence and loss, Federal Law Review, 29(3), 2001, pp. 403-425, at pp. 409-410, accessed 14 March 2015.

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• the provisions relating to appointment, qualifications and removal of tribunal members

• the criteria for availability of second-tier review within the proposed ART

• the proposed limitation on the right of legal representation before the tribunal and

• the intended degree of Ministerial control over the practice and procedure of the ART.27

Merits review: what does it mean ‘The principal feature of the new body [AAT] was that it could review all aspects of a decision made by government—the merits function—and if appropriate, remake the decision’.28 In 2006, Chief Justice Gleeson of the High Court outlined what the AAT does and what its merits review function means:

The establishment of the Administrative Appeals Tribunal in 1976 was… the most innovative and controversial element of a group of proposals designed to promote the rule of law and good governance by enabling citizens to call in question administrative decisions. It was controversial because the tribunal was to review decisions ‘on the merits of questions of fact and law’, because such review could extend to questions of policy and because the judicial method was adopted as a model for the Tribunal’s decision-making. It was innovative because it was to have a wide-ranging jurisdiction extending beyond specific areas within the purview, and control of separate Departments. I would say also that it was innovative because it conferred a function of merits review upon a body that was expected to have expertise in the process of review itself, as distinct from expertise in one particular subject of decision-making.

29

Subsection 43(1) of the AAT Act sets out what the Tribunal does:

For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a) affirming the decision under review;

(b) varying the decision under review; or

(c) setting aside the decision under review and:

(i) making a decision in substitution for the decision so set aside; or

(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. 30

Super Tribunals: the states’ and territories’ civil and administrative tribunals After the AAT was set up, many of the states and territories set up generalist tribunals based on the Commonwealth model. For example:

• 1982—Administrative Appeals Tribunal of Victoria

• 1989—Administrative Appeals Tribunal of the Australian Capital Territory (AAT-ACT)

• 1991—Administrative and Disciplinary Division (called the Administrative Appeals Court) as part of the Divisional Court of South Australia

• 1997—Administrative Decisions Tribunal NSW.31

These generalist tribunals have developed and increased their jurisdiction to an extent not seen at the Commonwealth level. Creyke comments:

27. Skehill, op. cit., p. 89. 28. E Creyke, Tribunals—‘Carving out the philosophy of their existence: the challenge for the 21st century’, AIAL Forum, no. 71, December 2012, pp. 19-33, at p. 20, accessed 14 March 2015 . 29. R Creyke and J McMillan, Control of government action, third edn, LexisNexis Butterworths, 2012, pp. 151-152. 30. Administrative Appeals Tribunal Act 1975, accessed 12 February 2015. 31. R Creyke, Tribunals: divergence and loss, op. cit., p. 405.

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The absence of formal separation of powers limitations has freed State and Territories to grant jurisdiction to tribunals in a manner which is not possible in the Commonwealth. The result has been the creation of tribunals with a truly polyglot jurisdiction. 32

Further Creyke comments:

This jurisdictional freedom has been taken advantage of in New South Wales, Victoria and, to a lesser extent, the Australian Capital Territory to combine quite disparate matters in their general jurisdiction administrative tribunals. The combination of civil with administrative jurisdiction is the most obvious indicator of that feature. Another is the exercise of original and review jurisdiction within the one body. What is significant about this ‘Christmas pudding’ approach is that, unlike the purely review jurisdiction of the ART [proposed in 2000], there is a mixture of executive, legislative and judicial powers being exercised within the one body. In other words, generalist tribunals in the States and Territories are not simply merits review bodies, nor are they purely court-substitute, or disciplinary bodies, but agencies exercising the entire spectrum of government powers.

The distinction is most striking when State or Territory tribunals have taken over functions previously exercised by courts. This is simply not possible, constitutionally, for Commonwealth tribunals. Hence, State and Territory tribunals can exercise judicial power and do so when they exact criminal penalties. 33

In his speech introducing the Bill into the Senate, Senator Fifield refers to the merging of merits review tribunals in most states and territories as having been done with considerable success.34 These tribunals in states and territories are now referred to as ‘super tribunals’. They are:

• Victorian Civil and Administrative Tribunal (VCAT)—commenced in 1998 and amalgamated 15 boards and tribunals to offer a ‘one stop shop’ dealing with a range of disputes35

• Tasmania—Magistrates Court (Administrative Appeals Division) Act 2001 consolidates approximately 50 separate Acts and Regulations which have a right of review or appeal to a magistrate with regard to administrative decisions. There is now a consistent procedure where an ‘interested party’ aggrieved by a decision can obtain a review by a magistrate of an administrative decision36

• Western Australian State Administrative Tribunal (SAT (WA))—established in 2004. The Tribunal has jurisdiction conferred on it by more than 150 enabling Acts, giving SAT jurisdiction to review decisions, consider disciplinary matters or make original decisions. SAT is the amalgamation of nearly 50 industry and public sector boards and tribunals and a number of courts, ‘creating one of the most comprehensive administrative jurisdictions in Australia’37

• Australian Capital Territory Civil and Administrative Tribunal (ACAT)—replaced sixteen administrative tribunals in 2009. ACAT’s civil dispute jurisdiction replaced the Small Claims Court. ACAT has jurisdiction to deal with civil disputes involving amounts of $10,000 or less (or more, with the agreement of the parties)38

• Queensland Civil and Administrative Tribunal (QCAT)—Nineteen tribunals, panels and committees were amalgamated in 2009. QCAT also reviews a range of decisions previously reviewed by the Supreme Court, the District Court, the Magistrates Court and other statutory bodies including the Gaming Commission and Information Commissioner39

32. Ibid., p. 406. 33. Ibid., p. 407. 34. M Fifield, (Manager of Government Business in the Senate and Assistant Minister for Social Services), ‘Second reading speech: Tribunals Amalgamation Bill 2014’, Senate, Debates, 3 December 2014, p. 10068, accessed 14 March 2015.

35. VCAT website, ‘Who we are’, accessed 27 January 2015. 36. Magistrates Court of Tasmania website, ‘Administrative Appeals Division’, accessed 29 January 2015. 37. SAT (WA) website, ‘History of SAT’, accessed 27 January 2015. 38. ACAT website, ‘Media package’, p. 10, accessed 28 January 2015. 39. QCAT website, ‘Former tribunals’, accessed 28 January 2015.

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• NSW Civil and Administrative Tribunal (NCAT)—established on 1 January 2014 and amalgamated 22 former tribunals. NCAT deals with a broad and diverse range of matters, from tenancy issues and building works, to decisions on guardianship and administrative review of government decisions40

• Northern Territory Civil and Administrative Tribunal (NTCAT)—commenced operations on 6 October 2014. The Northern Territory Civil and Administrative Tribunal Act 2014 (which established the NTCAT) however, ‘did not confer any jurisdiction on the tribunal. Whether the NTCAT has jurisdiction in a matter depends upon separate provision being made in legislation. Generally, this involves amending current laws so that NTCAT takes over the responsibilities of existing tribunals. A legislative programme spanning a period of approximately two years will see over a hundred Acts amended in this way’41

• South Australian Civil and Administrative Tribunal (SACAT)—will open on 30 March 2015. SACAT will deal with a broad range of civil and administrative disputes that are currently dealt with by specialist boards, tribunals and courts, commissioners and Ministers.42 Work done by the Residential Tenancies Tribunal, Guardianship Board and the Housing Appeal Panel will immediately transfer to SACAT and ‘there will be a staged inclusion of other tribunals progressively over the next couple of years’.43 The first stage will also include appeals currently made to the District Court on Guardianship Board and Residential Tenancies Tribunal matters, as well as appeals currently made to the Supreme Court on land valuation matters.44

Justice John Chaney, President of the WA State Administrative Tribunal noted in 2013:

The establishment of a super-tribunal inevitably creates concerns about a loss of specialist expertise, an increased level of formality or legality, and the application of a ‘one size fits all’ approach to procedures which is unsuited to the wide range of jurisdiction that super-tribunals exercise. Those concerns have not been borne out in practice. Rather, the benefits which have been identified in the way of accessibility, efficiency, flexibility, accountability, consistency, and quality have all come to pass.

All super-tribunals have retained specialist expertise through full time members drawn from a variety of fields, and large numbers of sessional members from varied disciplines. That has preserved the availability of expertise. 45

Second-tier review The AAT does not have a general power to review decisions—it can only do so if legislation provides that a decision is subject to review by the AAT. It has been given jurisdiction by over 400 Commonwealth Acts and legislative instruments.46 The Act or legislative instrument will indicate that a decision made under a particular provision of an Act is subject to review by the AAT.

Currently the AAT may conduct merits review:

• as the first avenue of review

• after an internal review has been conducted or

• after a review has been conducted by a specialist tribunal, such as the SSAT.

The last type of merits review is known as ‘second-tier review’. The AAT is not empowered to conduct second-tier reviews of all decisions of specialist tribunals—as with all the AAT’s powers, it may only occur where it is specifically provided for in legislation.47 Second-tier reviews currently occur in areas such as veterans’ affairs, social security and student assistance, after a decision in the SSAT. Justice Deirdre O’Connor noted in 1993 that second-tier review was seen as beneficial:

40. NCAT website, ‘What is NCAT?’, accessed 27 January 2015. 41. Northern Territory Civil and Administrative Tribunal, website, accessed 13 March 2015. 42. SACAT, website, accessed 27 January 2015. 43. J Rau (Attorney-General for SA), New one stop shop for administrative disputes, media release, 4 December 2014, accessed 17 March 2015. 44. South Australian Civil and Administrative Tribunal (SACAT) news, ‘Doors open at SACAT from 30 March 2015’, website, accessed 17 March

2015.

45. J Chaney, ‘Comparing Australia’s super-tribunals’, Bulletin (Law Society of South Australia) 35(7) August 2013, p. 16, 18, accessed 17 March 2015. 46. AAT website, ‘AAT-What we do’, accessed 19 February 2015. 47. See section 179 of the Social Security (Administration) Act 1991, accessed 12 February 2015.

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The twin objectives of a system of external review of administrative decisions are accessible, speedy, economical and informal review and an adequate standard of justice in all cases. In high volume jurisdictions such as social security and veterans’ appeals, a review system with complementary tiers has been regarded as the way to fulfil these objectives. The first tier operates as a filter, shielding the second tier from significant numbers of disputes, often involving the same basic issue requiring only the application of settled law to individual facts. The second-tier formulates and develops principles to guide primary decision-makers and first-tier tribunals.

48

Decisions of tribunals that are currently able to be reviewed by the AAT in second-tier review, will remain reviewable by the AAT. The difference will be that, due to the amalgamation, this second review will now take place within the one body, rather than in a separate body. However, the first review and second review will be carried out by different Divisions of the AAT. This issue is discussed further below.

Committee consideration Senate Legal and Constitutional Affairs Legislation Committee The Bill 2014 has been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 16 March 2015.49 Discussion of some of the submissions is included under the heading of Position of Major Interest Groups.

Senate Standing Committee for the Scrutiny of Bills The Committee has drawn attention to, and sought further information from the Attorney-General on, a number of provisions, discussed below.

Termination of appointments Proposed section 13 of the AAT Act sets out the procedure for terminating the appointments of non-judicial members of the AAT. The new section allows the Governor-General to terminate an appointment on a number of listed grounds. Currently the procedure for terminating members’ (including judicial members) appointments (at current section 13 of the AAT Act) involves an address from each House of Parliament on the ground of proved misbehaviour or incapacity.

The Committee considers that this amendment:

… appears to diminish the level of AAT members’ independence. Given the apparent success of the current termination provisions it is not clear to the Committee that the need to alter the current provisions has been established. 50

The Committee has sought further advice from the Attorney-General as to the rationale for this proposed approach, which may represent a significant reduction in the level of independence afforded to AAT members.51

President’s directions Proposed section 18B of the AAT Act allows the President of the Tribunal to give directions in relation to the operations and procedures of the Tribunal, how it conducts reviews and arranges it business, and where it sits.

Proposed subsection 18B(2) provides that a failure by the Tribunal to comply with a direction by the President does not invalidate anything done by the Tribunal. The Committee has sought the Attorney-General’s advice as to why this provision should not be limited to minor departures and whether such a provision is common in relation to practice directions in other adjudicative bodies.52

Proposed subsection 18B(3) provides that if the tribunal deals with a proceeding and complies with a direction, it is not required to take any further action in relation to the proceeding. The Committee has concerns about whether such ‘directions may intersect with requirements of administrative law, such as the rules of procedural

48. D O’Connor, ‘Effective administrative review: an analysis of two-tier review’, Australian Journal of Administrative Law, 1, 1993 p. 6. 49. Senate Legal and Constitutional Affairs Legislation Committee, Tribunals Amalgamation Bill 2014, The Senate, Canberra, 2015, accessed 14 March 2015. 50. Senate Standing Committee for the Scrutiny of Bills Committee, Alert Digest No. 1 of 2015, 11 February 2015, p. 32, accessed 25 February

2015.

51. Ibid.

52. Ibid., p. 33.

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fairness’. Accordingly, the Committee has sought further clarification from the Attorney-General as to the meaning and operation of proposed subsection 18B(3).53

Review on the papers Current section 34J of the AAT Act sets out the circumstances in which the Tribunal is permitted to conduct a review without holding a hearing (that is, ‘on the papers’). Currently such a review can only be conducted with the consent of the parties. Items 64 and 65 of Schedule 1 of the Bill amend section 34J to allow the Tribunal to conduct a second review on the papers without the parties consent. The Explanatory Memorandum states that this ‘would assist the Tribunal to ensure second review is conducted efficiently, but is clearly limited to those cases where it would be appropriate’.54

The Committee notes:

Unfortunately, the justification provided [in the Explanatory Memorandum] does not adequately explain why this procedural change, which may compromise a fair hearing, is required. There is a risk, for example, that a case may appear without merit merely because applicants (who are unlikely to be well resourced) have not been represented or well advised in the earlier stages of the review process. The Committee seeks further information from the Attorney-General in relation to why this change is considered appropriate and examples of how the exercise of the Tribunal’s discretion to proceed on the papers can be appropriately exercised in practice.

55

Regulation-making power Item 16 of Schedule 9 allows the Governor-General to make regulations required or permitted by the Bill, or necessary or convenient to give effect to the Bill. Subitem 16(3) specifies that such regulations made in the first two years following amalgamation may modify the operation of the Act or an instrument, to give effect to the amalgamation.56 In addition, subitem 16(4) allows retrospective regulations to be made in the first two years following amalgamation.

The Committee draws attention to these provisions, noting that they ‘may be considered to delegate legislative powers inappropriately’ and leaves the question of whether the proposed approach is appropriate to the Senate as a whole.57

As at the date of writing, a response from the Attorney-General has not been published by the Committee.

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill's compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.58 The Government considers that as the Bill is compatible because it advances the protection of some human rights and, to the extent that it may limit human rights, those limitations are ‘reasonable, necessary and proportionate’.59

The Parliamentary Joint Committee on Human Rights has examined the Bill and concluded that it does not raise human rights concerns.60

Position of major interest groups Concerns have been raised by several bodies in submissions to the Senate inquiry on the Bill. Some of the concerns are canvassed below.

53. Ibid., p. 34. 54. Explanatory Memorandum, op. cit., p. 15. 55. Senate Standing Committee for the Scrutiny of Bills Committee, op. cit., pp. 34-35. 56. A Henry VIII clause refers to an ‘inclusion in an Act of a power to amend either that Act or other Acts by regulation. Such powers are generally

known as Henry VIII clauses, on the basis of that particular king’s extensive use of such provisions during his reign’: source: D Pearce and S Argument, Delegated Legislation in Australia, fourth edn, LexisNexis Butterworths, 2012, p. 22. 57. Senate Standing Committee for the Scrutiny of Bills Committee, op. cit., pp. 35-36 58. The Statement of Compatibility with Human Rights can be found at page 2 of the Explanatory Memorandum to the Bill, op. cit. 59. Explanatory Memorandum, op. cit., p. 11. 60. Parliamentary Joint Committee on Human Rights, Eighteenth report of the 44th Parliament, The Senate, 10 February 2015, p. 2, accessed 14 March 2015.

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The Chief Justice of the Family Court has raised concerns about the apparent removal of the Family Court’s existing jurisdiction ‘to hear appeals from the Federal Circuit Court following judicial review of decisions made under the [Child Support (Registration and Collection) Act 198861] by the Social Security Appeals Tribunal (SSAT). The Bill also appears to transfer jurisdiction to hear and determine referrals on a question of law from the Family Court to the Federal Court’.62 The Chief Justice notes:

I am concerned that the result will be greater fragmentation in the child support appellate jurisdiction, and a squandering of the considerable expertise already developed in the Appeal Division of the Family Court in hearing and determining appeals from the SSAT/Federal Circuit Court. 63

The Law Institute of Victoria (LIV) is concerned that certain provisions of the Bill may damage the independence, flexibility and efficiency of the new Tribunal. In particular, proposed section 13 concerning the termination of appointment of members:

The LIV is concerned that the changes to this provision will result in a marked diminution in the protection provided to members of the Tribunal. It is the members of Tribunals who must ensure that the rule of law is upheld within the merits review systems. The Courts play an important role in this regard but they do not handle the volume of cases dealt with in the various tribunals.

The requirement that removal can only occur after receiving a motion from both Houses of Parliament [as provided under the current AAT Act] is a vital check on the power of the Executive to remove members of the Tribunal and, therefore, ensures that the Tribunal can discharge its functions independently, without fear of political interference.

64

The LIV regards the current protection of members as essential in upholding the independence of the Tribunal.

The Bar Association of Queensland is also concerned at the erosion of the independence of members of the Tribunal and opposes those amendments that it considers significantly affect that independence. The Association considers that the amendment of section 13 concerning the termination of appointment of members ‘amounts to a significant reduction in the security of tenure of members appointed, or re-appointed under that provision’. The Association notes:

The AAT is the Commonwealth’s premier independent merits review Tribunal. It reviews decisions of Ministers, departments and agencies at the behest of individuals affected by those decisions. The Tribunal’s independence plays a critical role in the proper functioning of the Tribunal. 65

It further comments:

Members of the AAT are not like ordinary statutory appointees. They require security of tenure in fact and in perception in order for them to do their unique job of reviewing the merits of administrative decisions made at the highest levels of government. While they are not members of a Chapter III court, the same logic applies to suggest AAT members require institutionalised protection of their independence, and of the culture of independence. The amendments before the Parliament will diminish that institutionalised protection.

66

The Bar Association also considers that the President should have the role of determining who is best suited to perform the roles of Head and Deputy Head of the Divisions (rather than this role being performed by the Minister as provided in the Bill), as well as being able to nominate a person for appointment as Registrar.

61. Child Support (Registration and Collection) Act 1988, accessed 14 March 2015. 62. D Bryant (Chief Justice), Family Court of Australia, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Tribunals Amalgamation Bill 2014, 3 March 2015, p. 2, accessed 13 March 2015. 63. Ibid., p. 4. 64. Law Institute of Victoria, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Tribunals Amalgamation Bill

2014, 27 February 2015, p. 4, accessed 13 March 2015. 65. Bar Association of Queensland, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Tribunals Amalgamation Bill 2014, 4 March 2015, accessed 13 March 2015. 66. Ibid.

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Financial implications The Explanatory Memorandum notes that 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.67

Key issues and provisions Schedule 1—Administrative Appeals Tribunal Act 1975 The Bill amalgamates four major tribunals; the Administrative Appeals Tribunal (AAT), and three specialist tribunals, the Migration Review Tribunal (MRT), the Refugee Review Tribunal (RRT) and the Social Security Appeals Tribunal (SSAT). The amalgamated Administrative Appeals Tribunal will commence on 1 July 2015. Schedule 1 makes the necessary amendments for the specialist tribunals to be incorporated as divisions within the AAT. The AAT will still be called the Administrative Appeals Tribunal.68

Currently the AAT ‘reviews a wide range of administrative decisions made by Australian Government ministers, departments, agencies and some other tribunals’.69 Before applications come to the AAT, in some instances an internal review of the primary decision is required within the agency while in other instances an application for review is available after a review by a specialist tribunal, which is also known as second-tier review.

AAT’s Objective Item 1 repeals and replaces section 2A of the AAT Act, which sets out the Tribunal’s objective.70 The existing objective in section 2A requires that the tribunal in carrying out its functions, must provide a mechanism of review that is fair, just, economical, informal and quick. The revised objective as set out in proposed section 2A will ensure that the Tribunal’s review mechanism:

• 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.71

Item 27 repeals Parts III and IIIAA of the AAT Act and substitutes those parts with proposed Part III. Existing Part III of the Act deals with the organisation of the Tribunal and with matters such as the divisions of the Tribunal, the arrangement of business, the constitution of the Tribunal and so on. Existing Part IIIAA provides that, when it is hearing certain matters, the Taxation Appeals Division of the AAT is to be known as the Small Taxation Claims Tribunal. This will cease under the amendments.

Proposed Part III provides the rules for organising the Tribunal. Many of the rules reflect the current legislation.

Proposed section 17A sets out the Divisions that will comprise the amalgamated Tribunal:

• General Division

• Migration and Refugee Division

• National Disability Insurance Scheme Division

• Security Division

• Social Services and Child Support Division

• Taxation and Commercial Division and

• any other Division prescribed in regulations.

The existing Divisions of the Tribunal (at section 19 of the AAT Act) comprise:

67. Explanatory Memorandum, Tribunals Amalgamation Bill 2014, op. cit., p. 1. 68. Ibid., p. 2. 69. Administrative Appeals Tribunal website, ‘What we do’, accessed 3 February 2015. 70. Administrative Appeals Tribunal Act 1975, accessed 12 February 2015. 71. Proposed section 2A, Tribunals Amalgamation Bill 2014, accessed 14 March 2015.

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• General Administrative Division

• Medical Appeals Division

• National Disability Insurance Scheme Division

• Security Appeals Division

• Taxation Appeals Division

• Valuation and Compensation Division and

• such other Divisions as are prescribed. (The Veterans’ Appeals Division is prescribed by regulation 4A of the Administrative Appeals Tribunal Regulations 1976.72 The Explanatory Memorandum indicates that this arrangement will continue).73

The Medical Appeals Division and the Valuation and Compensation Division will not be part of the new Tribunal as they are not presently used.74

Second Review As set out above, at present the AAT conducts second-tier review of other tribunals’ decisions, where this is provided for in legislation, mainly in the social security and veterans’ areas. Secondary review will continue under the Bill, but with the amalgamation of the tribunals it will obviously be conducted within the Tribunal, rather than involving two different institutions, as is presently the case. The Explanatory Memorandum advises that second review will take place in the General Division.75

Item 12 amends section 3(1) of the AAT Act to include a definition of second review, which would be defined as follows:

… a review by the Tribunal of a decision is or would be a second review if another enactment:

(a) authorises an application to be made for review of the decision; and

(b) designates the review as an AAT second review.

The Explanatory Memorandum notes:

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.

76

Proposed section 17B is concerned with the allocation of business to Divisions. Proposed subsection 17B(1) provides that the Tribunal’s powers will be exercised in relation to a particular proceeding in the Division that is prescribed for that proceeding in the regulations. If no Division has been prescribed, then the President can direct which Division will deal with the proceeding. Certain powers may only be exercised by the Tribunal in the Security Division, such as the power to review an adverse or qualified security assessment (under section 54 of the Australian Security Intelligence Organisation Act 1979 (ASIO Act)) and the power to review a decision under the Archives Act 1983 concerning access to a record of ASIO—proposed subsection 17B(2).

72. Administrative Appeals Tribunal Regulations 1976, accessed 14 March 2015. 73. Explanatory Memorandum, op. cit., p. 4. 74. Explanatory Memorandum, op. cit., p. 30. 75. Explanatory Memorandum, op. cit., p. 50. 76. Explanatory Memorandum, op. cit., p. 15.

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Decisions on the papers Section 34J of the Act sets out circumstances in which a hearing may be dispensed with. Currently, section 34J provides that if it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties, and the parties consent, then the Tribunal may review the matter using the documents and other material lodged with the Tribunal without holding a hearing. This is known as a decision ‘on the papers’. Item 65 inserts proposed subsection 34J(2) which removes the requirement for the consent of parties for a determination ‘on the papers’ if the review is a second review.

Comment As discussed above, the Senate Scrutiny of Bills Committee has drawn attention to the proposed amendments to section 34J and the possibility that the ability to conduct a second review on the papers without the consent of the parties may compromise a fair hearing.77

Members As currently defined in subsection 3(1) of the AAT Act, ‘member’ means a presidential member, a senior member, or any other member of the Tribunal. Item 8 repeals and substitutes this definition, so that member will mean:

• the President

• a Deputy President

• a senior member or

• any other member of the Tribunal.

Item 4 and 6 repeal the definitions of Conference Registrar, Deputy Registrar and District Registrar, as reference to these designations will no longer exist in the Act.

The maximum term of appointment for members has been amended by item 19 from seven years in existing subsection 8(3) to five years in proposed subsection 8(3).

Item 17 repeals subsections 6(2) and (3). Existing subsection 6(2) provides that a judge appointed to the Tribunal, other than as the President, is to be appointed as a presidential member. Proposed subsection 6(2) provides that a judge appointed to the Tribunal will be appointed as the President or a Deputy President. There will be no members appointed who are judges. Existing subsection 6(3) provides that a person (other than a judge) appointed a member of the Tribunal must be appointed as a Deputy President, a senior member, or member of the Tribunal. Proposed subsection 6(3) provides that a person, other than a judge, appointed to the Tribunal is to be appointed as a Deputy President, a senior member (level 1), a senior member (level 2), a member (level 1), a member (level 2) or a member (level 3). That is, various classes of members will be differentiated. The Explanatory Memorandum states:

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.

78

Qualifications for members Item 18 repeals and replaces section 7, which provides the qualification requirements for appointment as the President, Deputy President and senior members. Proposed section 7 provides that the President must be a judge of the Federal Court, as is currently the case. Currently, a deputy president is required to be a legal practitioner of at least five years standing. Under proposed section 7 a deputy president must not be appointed unless the person is a judge of the Federal or Family Court, a legal practitioner of at least five years standing, or in the opinion of the Governor-General is a person who has special knowledge or skills relevant to the duties of a deputy president. That is, legal qualifications will no longer be a prerequisite to appointment as a deputy

77. Senate Standing Committee for the Scrutiny of Bills Committee, Alert Digest No. 1 of 15, op. cit., p. 34. 78. Explanatory Memorandum, op. cit., p. 12.

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president. The requirements for senior and other members remain the same as currently exist for the AAT. The qualifications for members in the MRT, RRT or the SSAT are not prescribed in the Migration Act 1958 or the Social Security (Administration) Act 1999. The annual report for the MRT-RRT notes that there are no mandatory qualifications for appointment,79 while the annual report for the SSAT lists members’ qualifications, either legal or other specialist qualifications.80

Termination of appointment (not judges) Item 26 repeals sections 11 to 14. Section 13 concerns the removal of members from office. Subsection 13(1) currently provides that the Governor-General may remove a member from office on an address from each House of Parliament in the same session on the grounds of proved misbehaviour or incapacity. The current provision applies to all members, including those who are judges. Proposed subsection 13(1) provides that the Governor-General may terminate the appointment of a member who is not a judge for misbehaviour or incapacity. A number of other grounds are set out in proposed subsection 13(2) which include:

• a member becomes bankrupt

• a member is absent, except on leave of absence, for 14 consecutive days or 28 days within 12 months

• a part-time member is unavailable, except on leave of absence, to perform the duties of office for more than three months

• the member undertakes paid outside employment without the approval of the President

• the member fails to comply with requirements to disclose conflicting interests.

The Governor-General may terminate the appointment of a member assigned to the Migration and Refugee Division if the member has a direct or indirect pecuniary interest in an immigration advisory service—proposed subsection 13(3). Section 13 does not apply to a member who is a judge—proposed subsection 13(5). Termination of the appointment of a member may not be done except in accordance with section 13—proposed subsection 13(4).

Comment As set out above, the Senate Scrutiny of Bills Committee has sought the Attorney-General’s advice as to the rationale for the change to the approach to terminating the appointment of members, which it considers may represent a significant reduction in the level of independence afforded to AAT members.81

Current section 13 applies to all members, including members who are judges. The new provision deals only with members who are not judges. Under proposed section 7 of the AAT Act, at item 18, a person cannot be appointed as the President of the AAT unless the person is a judge of the Federal Court of Australia. Being a judge of the Federal Court or the Family Court of Australia also makes a person eligible for appointment as a Deputy President. There is no mention in the Explanatory Memorandum, but it appears that the removal of members who are judges will be done under the provisions dealing with the removal of judicial officers in the Federal Court of Australia Act 1976 or the Family Court Act 1975. Both these Acts provide that a judge:

… shall not be removed, except by the Governor-General, on an address from both Houses of the Parliament in the same session praying for the Judge’s removal on the grounds of proved misbehaviour or incapacity. 82

The person’s removal as a judge will result in their removal as an AAT member, as current subsection 8(4) of the AAT Act (as amended by item 20 of Schedule 1) provides that ‘a member who is a Judge ceases to hold office as a member if he or she ceases to be a Judge’.

Organisation of the Tribunal As mentioned above, item 27 of the Bill repeals Part III of the AAT Act, which deals with the organisation of the Tribunal, and Part IIIAA, which provides that, when it is hearing certain matters, the Taxation Appeals Division of the AAT is to be known as the Small Taxation Claims Tribunal.

79. Migration Review Tribunal-Refugee Review Tribunal, Annual report 2013-14, p. 129, accessed 18 March 2015. 80. Social Security Appeals Tribunal, Annual report 2013-14, p. 47, accessed 18 March 2015. 81. Senate Scrutiny of Bills Committee, op. cit., p. 32. 82. See section 6 of the Federal Court of Australia Act 1976 and section 22 of the Family Law Act 1975, accessed 25 February 2015.

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The Explanatory Memorandum notes that Part III is to be re-enacted ‘to provide comprehensive rules for the organisation of the amalgamated Tribunal’.83 Part IIIAA will not be replaced.84

New Part III is comprised of proposed sections 17A to 19F. Proposed section 18A provides that the President is responsible for ensuring ‘the expeditious and efficient discharge of the business of the Tribunal’, which reflects the current requirement in subsection 20(1) of the AAT Act. However, the Bill would add to this requirement, so that the President is also responsible, in arranging the Tribunal’s business, for ensuring that the Tribunal pursues the objective set out in proposed section 2A. (That is, that the Tribunal provides a review mechanism that is accessible; fair, just, economical, informal and quick; proportionate to the importance and complexity of the matter; and promotes public trust and confidence in the decision-making of the Tribunal.)

Proposed section 18B allows the President to make directions in relation to the arrangement of business within the Tribunal, particularly relating to the operation and procedure of the Tribunal, the conduct of reviews, the arrangement of business and the places at which the Tribunal may sit. Proposed subsection 18B(2) provides that a failure by the Tribunal to comply with a direction does not invalidate anything done by the Tribunal. The Explanatory Memorandum notes that the intention is to prevent Tribunal decisions being overturned on the basis of minor non-compliance with practice directions, but that the Tribunal is still required to comply with the Act and the requirements of administrative law.85

Comment As discussed above, the Senate Scrutiny of Bills Committee draws attention to this provision and has sought the Attorney-General’s advice as to why the provision should not be expressly limited to minor departures from practice directions.86

Proposed subsection 18B(3) provides that if the Tribunal complies with directions given by the President in relation to a proceeding, the Tribunal is not required to take any other action in dealing with the proceeding.

Comment The Senate Scrutiny of Bills Committee sought clarification from the Attorney-General as to the meaning and proposed operation of this provision, noting:

Given that practice directions may relate to the procedure of the tribunal and the conduct of reviews by the tribunal, it may be that directions intersect with the requirements of administrative law, such as the rules of procedural fairness. 87

Part IV of the AAT Act Part IV of the AAT Act is concerned with the review of decisions by the Tribunal and deals with matters such as making an application to the Tribunal, matters relating to the parties to proceedings, alternative dispute resolution and so on. Item 39 of Schedule 1 will insert proposed Division 1A into Part IV (consisting of one provision - proposed section 24Z) to outline the scope of operation of Part IV. Proposed section 24Z provides that, with the exception of two provisions, Part IV does not apply to a proceeding in the Migration and Refugee Division. The two provisions that will apply are section 25, which (as amended by items 40 and 41) provides that other enactments may give the Tribunal jurisdiction to review decisions; and section 42 which, as amended by item 107, concerns the resolution of disagreements amongst members on a panel in a particular proceeding. The note accompanying proposed subsection 24Z(1) explains that the rules governing the conduct of proceedings in the Migration and Refugee Division are to be found in Parts 5 and 7 of the Migration Act 1958.88 Part 5 of that Act, as amended by Schedule 2 of the Bill, deals with the review of decisions relating to the grant or cancellation of visas in some circumstances. Part 7 of the Migration Act, as amended by Schedule 2 of the Bill, deals with the review of decisions on protection visas. The result of proposed section 24Z is that provisions governing how the Migration and Refugee Division will operate procedurally will remain in the Migration Act.

83. Explanatory Memorandum, op. cit., p. 29. 84. Ibid.

85. Ibid., p. 35. 86. Senate Standing Committee for the Scrutiny of Bills Committee, Alert Digest No. 1 of 2015, op. cit., p. 33. 87. Ibid., p. 34. 88. Migration Act 1958, accessed 12 February 2015.

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Oral Applications Section 29 of the AAT Act sets out the manner in which applications may be made to the Tribunal for review. Currently, applications made to the Tribunal under subsection 29(1) must be in writing, contain a statement of reasons for the application (except in limited circumstances) and be lodged within the prescribed time (generally within 28 days of the decision that is being challenged). Applications may be made in accordance with the prescribed form. Item 46 repeals and replaces paragraphs 29(1)(a), (b) and (c). Under the amended provisions, applications must still be in writing, except certain applications seeking review of decisions in the Social Services and Child Support Division, which may also be made orally. The application must be accompanied by a prescribed fee and unless it is an oral application or one made under subsections 54(1) or (2) of the ASIO Act, it must contain a statement of reasons for the application. There is no reference in the amended provision to a prescribed form as forms will not be prescribed in regulations under the amended AAT Act—they will be created or amended as required and approved by the President.89

Item 51 inserts proposed section 29AA which requires the person receiving an oral application to make a written record of the details and the day on which the application was made. The written record of the oral application has effect as if the written record were an application made in writing on the day on which the oral application was made. The Explanatory Memorandum notes that the ability to make an oral application is an important feature of the SSAT that is to be preserved.90

Representation before the Tribunal Item 54 repeals section 32 and replaces it with proposed section 32. Current section 32 provides that parties may appear in person at a hearing or be represented by some other person. Proposed paragraph 32(1)(a) provides that a party may appear in person or be represented by another person. This will apply to all Divisions except the Social Services and Child Support Division. The agency party does not require permission to be represented—proposed paragraph 32(1)(b). A person may be represented by another person in the Social Services and Child Support Division with the permission of the Tribunal—proposed subsection 32(2). Currently in the SSAT, a person may be represented if the SSAT allows.91 In deciding whether to grant permission, the Tribunal must consider its objective in proposed section 2A, the wishes of the parties and the need to protect their privacy—proposed subsection 32(3). The agency party will be represented in the Social Services and Child Support Division as the agency cannot appear other than by being represented, as noted in the Explanatory Memorandum.92 Second review decisions come within proposed paragraph 32(1)(a) because they will be heard in the General Division. A person required to appear before the Tribunal may be represented by another person with the Tribunal’s permission—proposed subsection 32(4).

Due to proposed section 24Z (discussed above) amended section 32 will not apply to a proceeding in the Migration and Refugee Division. Arrangements in that Division will be set out in the Migration Act, as amended by Schedule 2 of the Bill.

Appeals to the Federal Court of Australia and the Federal Circuit of Australia Part IVA of the AAT Act is concerned with appeals and references of questions of law to the Federal Court of Australia. Item 124, proposed section 43C provides that Part IVA does not apply to a proceeding for the review of certain decisions under the Migration Act 1958. These decisions are:

• a privative clause decision (which is a decision that is final and conclusive and may not be challenged in court - see section 474 of the Migration Act 1958 for further information)93

• a purported privative clause decision (defined in section 5E of the Migration Act) or

• an AAT Act migration decision (which will be defined in proposed section 474A of the Migration Act, inserted by item 122 of Schedule 2 of the Bill).

•

89. Explanatory Memorandum, op. cit., p. 48. 90. Explanatory Memorandum, op. cit., p. 47. 91. Social Security Appeals Tribunal website, ‘Representation’, accessed 17 March 2015. 92. Ibid., p. 50. 93. Section 474 of the Migration Act, accessed 16 March 2015.

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Section 44 of the AAT Act deals with appeals to the Federal Court. Subsection 44(1) provides that a party to a proceeding in the Tribunal may appeal questions of law to the Federal Court. Item 126 inserts proposed subsection 44(1A), which provides that subsection 44(1) does not apply to a proceeding in the Social Services and Child Support Division except for a child support first review proceeding or a review of an AAT reviewable employer decision under the Paid Parental Leave Act 2010.

A party to a child support first review proceeding may appeal to the Federal Circuit Court on a question of law if the Tribunal panel as constituted for that proceeding did not include a presidential member (that is the President or a Deputy President)—proposed subsection 44AAA(1). The Explanatory Memorandum notes that this provision ‘maintains an existing avenue of appeal to the Federal Circuit Court available under the Child Support (Registration and Collection) Act 1988 (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’.94 For appeals under proposed section 44AAA the jurisdiction of the Federal Circuit Court is concurrent with that of the Federal Court under subsection 44(1).95

Proposed subsection 44AAA(2) provides that provisions in Part IVA of the AAT Act apply in relation to an appeal to the Federal Circuit Court as if it were an appeal to the Federal Court under subsection 44(1). Where there is a reference to the Federal Court in the provisions mentioned in proposed subsection 44AAA(2) it will be read also as a reference to the Federal Circuit Court of Australia. These provisions provide the associated rules for instigating an appeal. Proposed subsection 44AAA(3) provides that paragraph 44(2A)(b) which refers to the rules of the Federal Court of Australia Act 1976 will be read as a reference to the rules of the Federal Circuit Court of Australia Act 1999.

Other Matters Item 135 repeals and replaces existing section 61, which deals with the failure to comply with a summons. Proposed subsection 61(1) significantly increases the penalty for failure to comply with a summons. Currently the penalty is 30 penalty units ($5,100) or imprisonment for six months or both. Proposed subsection 61(1) has increased the penalty to 12 months imprisonment or 60 penalty units ($10,200) or both.96 The Explanatory Memorandum states that the increase in the penalty:

… 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. 97

Appendix A sets out the other offences for which the maximum penalty will similarly be increased.

Schedule 2—Migration Amendments Part 1—Main amendments The Migration Review Tribunal and Refugee Review Tribunal are to be abolished and their jurisdiction is to be transferred to the AAT as part of the amalgamation of these tribunals into the AAT. Schedule 2 primarily amends the Migration Act 1958.

As set out above, Part IV of the AAT Act deals with the review of decisions by the Tribunal. Item 39 of Schedule 1 of the Bill inserts proposed section 24Z into the AAT Act, which provides that (with the exception of two provisions) Part IV will not apply to proceedings in the Migration and Refugee Division.98 Instead, amended Parts 5 and 7 of the Migration Act will govern the conduct of proceedings in the Migration and Refugee Division. The Explanatory Memorandum notes that currently the AAT ‘has jurisdiction to review certain decisions under the Migration Act. There would be no change to this existing jurisdiction’. 99

94. Explanatory Memorandum, op. cit., p. 74. 95. Ibid., p. 75. 96. A penalty unit is defined in section 4AA of the Crimes Act 1914 as $170. Therefore 60 penalty units is equivalent to $10,200. 97. Explanatory Memorandum, op. cit., p. 79. 98. As discussed above, the two provisions that will apply are section 25, which (as amended by items 40 and 41 of Schedule 1) provides that

other enactments may give the Tribunal jurisdiction to review decisions and section 42 which, as amended by item 107 of Schedule 1, concerns the resolution of disagreements amongst members on a panel in a particular proceeding. 99. Explanatory Memorandum, op. cit., p. 4.

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Part 5—Review of Part 5-reviewable decisions Existing Part 5 of the Migration Act is concerned with the review of decisions relating to the grant or cancellation of visas in some circumstances. Part 5 has been re-titled Part 5—Review of Part 5-reviewable decisions. Item 26 inserts proposed section 336M which outlines the content of this Part. As currently, Part 5 will deal with the review of decisions that relate to the grant or cancellation of visas in some circumstances. Decisions relating to protection visas or temporary safe haven visas or decisions where the Minister has given a conclusive certificate are not reviewable under Part 5.100 Proposed section 336N, also inserted by item 26, provides that decisions that are reviewable under Part 5 may only be dealt with in the Migration and Refugee Division of the Tribunal.

Part 7—Review of Part 7-reviewable decisions Existing Part 7 of the Migration Act is concerned with the review of protection visa decisions. Item 71 inserts proposed section 408 to briefly outline the content of the Part. As currently, Part 7 will deal with the review of decisions to grant or cancel protection visas in some circumstances. Decisions for which the Minister has given a conclusive certificate are not reviewable.

Certain other decisions under the Migration Act may be reviewed by the AAT in its General Division, such as some decisions to cancel business visas, some decisions that relate to migration agents, and some decisions relating to deportation, protection visas and the refusal or cancellation of visas on character grounds.101

Part 2—Multiple amendments Part 2 of Schedule 2 of the Bill uses a tabular approach to amend terminology throughout the Migration Act. Item 133 amends various provisions in the Migration Act 1958 by removing the reference to ‘MRT-reviewable decision’ and substituting it with ‘Part 5-reviewable decision’. Item 134 lists all the occurrences of ‘member, the Registrar, a Deputy Registrar or another officer of the Tribunal’ and substitutes ‘member or an officer of the Tribunal’. Item 135 lists all the occurrences of ‘RRT-reviewable decision’ and substitutes ‘Part 7-reviewable decision’.

Part 3—Contingent amendments Part 3 of Schedule 2 is concerned with amendments that are contingent on, or interact with certain Bills that were before the Parliament when the Tribunals Amalgamation Bill was introduced. The relevant Bills are: the Migration Amendment (Protection and Other Measures) Bill 2014; the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Bill 2013; the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014; and the Migration Amendment (Character and General Visa Cancellation) Bill 2014.102 The last two of these Bills have passed the Parliament and are now Acts.103 The amendments contained in Part 3 will come into force according to the conditions set out in the commencement provisions in clause 2 of the Bill.

Schedule 3 - Social Security Amendments As explained above, the Social Security Appeals Tribunal (SSAT) is to be abolished and amalgamated into the AAT. Schedule 3 amends the Social Security Act 1991 (SS Act) and the Social Security (Administration) Act 1999 (SSA Act) to implement a new system for review of social security decisions within the amalgamated Tribunal.104 The main amendments are to the SSA Act, which makes provision for the review of decisions under ‘social security law’.105

100. Section 339 of the Migration Act allows the Minister to issue a conclusive certificate in relation to a decision if he or she believes that it would be contrary to the national interest to change the decision or have it reviewed. 101. Clause 408, Tribunals Amalgamation Bill 2014, p. 73. 102. Parliament of Australia, ‘Migration Amendment (Protection and Other Measures) Bill 2014 homepage’, ‘Migration Amendment (Regaining

Control Over Australia’s Protection Obligations) Bill 2013 homepage’, ‘Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 homepage’ and ‘Migration Amendment (Character and General Visa Cancellation) Bill 2014 homepage’, Australian Parliament website, accessed 16 March 2015. 103. Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 and Migration Amendment (Character and General Visa Cancellation) Act 2014, accessed 16 March 2015. 104. Social Security Act 1991 and Social Security (Administration) Act 1999, accessed 16 March 2015. 105. Subsection 3(3) of the SSA Act provides that ‘social security law’ means the SSA Act, the SS Act and any other Act that is expressed to form part of the social security law (currently limited to the Social Security (International Agreements) Act 1999).

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Currently the review process set out in the SSA Act allows for an internal review of an officer’s decision conducted by the Secretary (current section 126 of the SSA Act), followed by review in the SSAT, and then review by the AAT. As discussed above, where the AAT reviews decisions of a specialist tribunal such as the SSAT, it is referred to as ‘second-tier review’. The AAT is not empowered to conduct second-tier reviews of all decisions of specialist tribunals—as with all the AAT’s powers, it may only occur where it is specifically provided for in legislation.106 The two-tier review process is preserved in the amendments, where the first review will be handled by the Social Services and Child Support Division of the AAT and the second review by the General Division of the AAT.107 The AAT Act allows a person to appeal to a court from a decision of the AAT on AAT second review.108 Proposed Part 4A, inserted into the SSA Act by item 26 of Schedule 3 of the Bill, sets out the procedures and powers for both tiers of AAT review.

The current review powers of the SSAT, as set out in Divisions 3 and 4 of Part 4 of the SSA Act, are designed to be carried out as quickly as possible (section 167), and hearings are private (section 168). In contrast AAT proceedings may incorporate alternative dispute resolution processes, hearings usually take place in public (section 35 of the AAT Act), and the AAT has broader powers to gather information and take evidence (section 40 of the AAT Act).

Under proposed Division 2 of Part 4A, item 34 repeals current subsections 142(1) and (2) and inserts proposed subsection 142(1) to provide that an application may be made to the AAT for review of a decision of the Secretary, the Chief Executive of Centrelink, or an authorised review officer, rather than to the SSAT. This is AAT first review.

Item 66 inserts proposed Divisions 3 and 4 into Part 4A. Proposed Division 3 sets out the entitlement to apply for review of an AAT first review decision (AAT second review) and, at proposed section 180, modifies certain provisions of the AAT Act to clarify their operation in respect of AAT second review. Proposed Division 4 includes provisions, in line with existing provisions guiding SSAT and AAT reviews, relating to the settlement of proceedings, and the variation of decisions, before AAT first and second review.

Item 42 inserts Subdivision C into proposed Part IVA of the SSA Act. This subdivision inserts a table at proposed section 147 which modifies eight provisions of the AAT Act for the purposes of AAT first review, preserving current SSAT procedure. There is no significant change to the powers and procedures exercised on AAT first and second review compared with those currently exercised by the SSAT and AAT respectively.

Minor amendments relating to the Tribunal’s power to obtain information at the ‘first review’ stage are made in proposed section 165A, which increases the maximum penalty for a failure to comply with a notice requiring relevant information or documents from six months imprisonment to 12 months imprisonment and/or 60 penalty units—proposed subsection 165A(2). This is in line with penalties elsewhere in the Bill -see Appendix A. New subsection 165A(3) inserts a defence to this offence when complying with the notice may incriminate the person.

Item 72 repeals existing Schedules 3 and 4 of the SSA Act which relate to the constitution, membership and oaths of the SSAT.

The Explanatory Memorandum sets out the key procedural rules for the Social Services and Child Support Division that are preserved in the transfer to the AAT:

• 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

106. See section 179 of the Social Security (Administration) Act 1991, accessed 12 February 2015. 107. These Divisions are not specified in the Bill, but are identified in the Explanatory Memorandum, op. cit., p. 50. 108. Schedule 3, item 29, Tribunals Amalgamation Bill 2014, p. 104.

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• 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).109

Schedule 4 - Child support amendments Schedule 4 amends the Child Support (Assessment) Act 1989 (CSA Act) and the Child Support (Registration and Collection) Act 1988 (CSRC Act) so that review of decisions currently undertaken by the SSAT is done by the AAT.110 The right to two-stage review of certain decisions made by the amalgamated Tribunal (in its Social Services and Child Support Division) is preserved.

The SSAT currently has jurisdiction under section 89 of the CSRC Act to conduct merits review of certain types of child support decisions which have already been through internal review. The AAT’s jurisdiction in child support matters is more limited, and is confined to review of SSAT decisions under the CSRC Act which relate to:

• a percentage of care decision;

• the date of effect of a care percentage decision

• a refusal to extend time (beyond the 28 day limit) to allow a person to make an application to the SSAT (section 103VA of the CSRC Act).

Items 1-25 make, in the most part, minor amendments to the CSA Act to reflect the abolition of the SSAT and the implementation of a new two-tier regime under the amalgamated AAT. Items 26-88 amend the CSRC Act to provide for AAT first and second review. In particular, items 50-51 and 64 insert the definitions of first and second review in amended section 89 and proposed section 96A of that Act by removing mention of the SSAT and inserting the expressions ‘AAT first review’ and ‘AAT second review’ respectively.

AAT first review Schedule 4 makes substantial amendments to Part VIIA of the CSRC Act, which currently deals with ‘SSAT Review of Certain Decisions’, to cover the proposed two-tiered review process under the AAT. All decisions previously reviewable by the SSAT remain reviewable under AAT first review. Proposed Division 2 of Part VIIA sets out the right to apply to the AAT for first review of a child support matter and specifies the time limits for applications and the procedures guiding extensions of time.

Item 64 repeals and substitutes proposed Divisions 3 to 6 of Part VIIA. Proposed Division 3 sets out the procedures and powers of the AAT at first review. These are largely the same as those currently conferred on the SSAT. Hearings must be in private (proposed section 95K), the summons power under section 40A of the AAT Act does not apply (proposed section 95F) and written notification of a decision must be given to the parties within 14 days of the decision being made (proposed section 95P).

The Bill slightly expands the AAT’s jurisdiction at first review, compared with the SSAT, by repealing and substituting proposed sections 98E and 98R of the CSA Act to improve the review process (items 15 and 17 of Schedule 4 to the Bill). Current sections 98E and 98R provide that in complex child support matters the Registrar can refuse to make a determination without taking any further action, and recommend that application be made to a court instead. The new provisions will provide that in a complex application the Registrar may refuse to make a determination without taking any further action, and is silent on applications being made to a court. The rationale for this change is that it would be more advantageous for the application to go to the AAT. As explained in the Explanatory Memorandum:

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 by 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.

111

109. Explanatory Memorandum, op. cit., p. 5. 110. Child Support (Assessment) Act 1989 and Child Support (Registration and Collection) Act 1988, accessed 14 March 2015. 111. Explanatory Memorandum, paragraph 1303, p. 143.

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AAT second review Proposed Divisions 4 and 5 of Part VIIA of the CSRC Act outline the jurisdiction and procedures of the AAT at second review. These are not changed from the limited jurisdiction currently conferred on the AAT by the CSRC Act, as set out above.

Procedural amendments The procedures governing AAT review under the Bill are not substantially different from those which currently exist for SSAT and AAT review. However, a few minor changes should be noted.

Item 64 inserts proposed section 95L into Division 3 of Part VIIA, which relates to the making of non-disclosure and non-publication orders under proposed subsections 35(3) and (4) of the AAT Act (inserted by item 66 of Schedule 1 to the Bill) in the course of AAT first review. The effect is that the Registrar, when applying for a non-disclosure order over documents or other information, is not required to give a copy of the application to any party to the AAT matter. This departs from current SSAT procedure - existing section 97 of the CSRC Act requires the Registrar to provide a copy of the application to each party.

The Explanatory Memorandum explains the provision as being:

… 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. 112

Although the AAT can presumably provide the application to the other parties in circumstances it deems appropriate, the provision does raise concerns as to whether the AAT can afford procedural fairness to parties who are not made aware of, nor given an opportunity to respond to, an application for orders which, for example, may deny them access to relevant documents before the AAT. The provision does not apply in the course of AAT second-tier review.

Item 64 also inserts proposed section 98A which prohibits a child aged under 18 from giving oral evidence in the course of either AAT first or second review of a decision which relates to the child. This broadens the express prohibition which currently exists for SSAT, but not AAT, matters (section 103H of the CSRC Act).

Judicial review The Bill streamlines the process for judicial review of AAT first review decisions of child support matters. Item 66 repeals existing Division 3 of Part VIII of the CSRC Act which covers appeals on questions of law from the SSAT to the courts. Judicial review of AAT first review decisions is instead covered by proposed section 44AAA of the AAT Act (item 129 of Schedule 1). The section prescribes the circumstances in which a matter can be appealed to the Federal Circuit Court or the Federal Court of Australia (FCA), and replaces the current, more complex system in which jurisdiction is conferred on a wider range of courts, including state and territory courts. Judicial review of AAT second review decisions remains under the jurisdiction of the FCA, as outlined by section 44 of the AAT Act.

Schedule 5—Family assistance amendments Schedule 5 amends A New Tax System (Family Assistance) Act 1999 (FA) and A New Tax (Family Assistance)(Administration) Act 1999 (FAA) to transfer the merits jurisdiction from the SSAT to the AAT in respect of matters relating to family assistance.113 The main amendments are made to Division 2 of Part 5 of the FAA, which currently deals with the review of matters by the SSAT. Item 15 repeals section 110 and substitutes it with proposed section 110 which inserts Subdivision A that sets out the simplified outline of Division 2 concerning the review mechanisms that will be available. Proposed subdivisions B to G are inserted, which contain provisions dealing with the following:

• AAT first review

• AAT second review

112. Explanatory Memorandum, paragraph 1426, pp. 158-159. 113. A New Tax System (Family Assistance) Act 1999 and A New Tax System (Family Assistance) (Administration) Act 1999, accessed 12 February 2015.

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• AAT single review.

Subdivision G of the Bill deals with an AAT single review. Proposed section 138 provides that an application may be made to the AAT for review of certain decisions of the Secretary or an authorised review officer that have been made on review of an original decision. This type of review is referred to as AAT single review. The kinds of decisions that can be reviewed in this way are set out in proposed subsection 138(4).

The AAT Act allows a person to appeal to a court on a question of law from a decision of the AAT second review or AAT single review.114

Schedule 6—Paid Parental leave amendments Schedule 6 amends the PPL Act to transfer the merits review function from the SSAT to the AAT. Chapter 5 of the PPL Act is about administrative and judicial review of decisions made under the PPL Act.115 Section 4 of the PPL Act provides a guide to the Act. Item 1 amends section 4 to repeal and replace the information on Chapter 5.

Existing Part 5—2 of the PPL Act deals with the review of decisions by the SSAT. Proposed Part 5—2 provides for the AAT first review of certain decisions and associated procedural requirements. Item 14 inserts a new Guide to Part 5—2 in proposed section 213. Items 15 to 17 amend Division 2 of Part 5-2, the new heading of which will be ‘AAT first review of claimant decisions’. Within this Division, proposed section 216 will set out who can apply for review of AAT reviewable claimant decisions. (‘AAT reviewable claimant decision’ is defined in subsection 215(3) of the PPL Act.)

Items 18 to 20 amend Division 3 of Part 5-2, which currently deals with the review of employer decisions by the SSAT. Under the amendments proposed by the Bill, Division 3 will deal with review of ‘AAT reviewable employer decisions’, defined at subsection 223(2) of the PPL Act. Proposed section 224, at item 20 sets out the procedure for an application for review (AAT first review) of an AAT reviewable employer decision.

Proposed section 232 provides how the AAT first reviews (which cover AAT reviewable claimant decisions and AAT reviewable employer decisions) are to be conducted. The hearings must be in private, the AAT may give directions in writing or otherwise as to who may be present, having regard to the wishes of the parties and the need to protect their privacy. Subsections 35(1) and (2) of the AAT Act (hearings to be in private except in special circumstances) which are inserted by item 66 of Schedule 1 to the Bill do not apply in a hearing of an AAT first review.

Item 21 repeals Parts 5-3 and 5-4 of the PPL Act, which deal with review of paid parental leave decisions by the SSAT and AAT, respectively. Proposed Part 5—3 will be concerned with AAT second review of claimant decisions and proposed Part 5—4 with other matters relating to review. AAT second review is only available in relation to claimant decisions, it is not available in relation to employer decisions.116 Proposed section 237 provides for the making of an application for an AAT second review of a claimant decision.

Schedule 7—Student assistance amendments Part 1—Main amendments

Schedule 7 amends the Student Assistance Act 1973 (SAA).117 The main amendments are made to Division 2 of Part 9 of the Act. Part 9 of the SAA relates to review of decisions. Item 11 repeals Divisions 2, 3 and 4 of Part 9 which currently relate to review of decisions in the SSAT and second-tier reviews in the AAT.

The three Divisions are substituted by proposed Division 2, which provides for the procedural matters applying to review of decisions by the AAT. Proposed section 309 provides a simplified outline of Division 2, setting out the review mechanisms available. Proposed section 310 provides that Division 2 will apply to all decisions of an officer under the SAA relating to the Student Financial Supplement Scheme or the recovery of amounts paid under a current or former special educational assistance scheme. However, decisions under section 305 or 314 (continuation of payment pending review of adverse decision) or 343 or 345 (notice requiring information from any person) will not be reviewable under the Division. Proposed Subdivision B sets out the procedure for applying for an AAT first review in proposed sections 311 to 319.

114. Proposed section 110, Tribunals Amalgamation Bill 2014. 115. Paid Parental Leave Act 2010, accessed 12 February 2015. 116. Proposed section 236, Tribunals Amalgamation Bill 2014. 117. Student Assistance Act 1973, accessed 12 February 2015.

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Proposed Subdivision C sets out the procedural matters applying to an AAT second review. Proposed section 320 provides that an application may be made to the AAT for review of an AAT first review decision. The rules relating to reviews by the AAT are mainly in the AAT Act, but the operation of that Act is modified in some ways by Division 2 of Part 9 of the SAA.118

Part 2—Contingent amendments

As set out above, item 11 of Schedule 7 would (among other things) insert new section 310, which sets out which decisions are reviewable under Division 2 of Part 9 of the SSA. Proposed subsection 310(2) lists certain decisions that cannot be reviewed by the AAT (see above) and reflects existing section 313 of the SSA (except that the current section refers to the SSAT, rather than the AAT).

The Social Services and Other Legislation Amendment (Student Measures) Bill 2014 (Student Measures Bill) is currently before the Senate.119 If enacted, this Bill will amend existing section 313 of the SSA to insert additional decisions that are not reviewable by the SSAT (see item 94 of Schedule 2 to the Student Measures Bill).

Item 13 of Schedule 7 of the Tribunals Amalgamation Bill provides that proposed subsection 310(2) be amended to include the decisions listed at item 94 of Schedule 2 to the Student Measures Bill. Table item 18 of the commencement table in clause 2 of the current Bill provides that item 13 of Schedule 7 will not commence at all if the Student Measures Bill is not enacted.

Schedule 8—Other consequential amendments Schedule 8 makes consequential amendments to 29 enactments. Item 2 amends the Archives Act 1983 to repeal section 46 and substitute it with proposed section 46.120 Currently section 46 is concerned with the constitution of the AAT for proceedings concerning certain exempt records. The existing section makes reference to provisions which the Bill proposes to repeal. Proposed section 46 excludes these references.

Item 3 repeals section 48 of the Archives Act and substitutes proposed section 48. Section 48 modifies the operation of section 42 of the AAT Act in its application to a proceeding under section 46 of the Archives Act. Section 42 is concerned with resolving disagreements about questions of law amongst members in a proceeding. In proceedings under section 46 of the Archives Act, subsection 42(1) of the AAT does not apply and is replaced by the proposed section 48 of the Archives Act. Proposed section 48 applies to a Tribunal constituted by three presidential members, where those members disagree about a question of law. If only one of those presidential members is a judge, then that member’s view prevails. If two of the presidential members are judges, the dispute is determined according to the opinion of the majority of the members.

Schedule 9—Transitional and saving provisions The Explanatory Memorandum notes:

Schedule 9 to the Bill would provide application, transitional and saving provisions to transfer arrangements relating to the establishment and membership structure from the existing tribunals to the amalgamated Tribunal. 121

Concluding Comments Generally the decision to amalgamate the Tribunals has been received positively. However, definite concerns have been raised by certain bodies about the perceived erosion of the independence of the Tribunal, particularly in relation to the proposed arrangements for removing members. These matters may benefit from further consideration.

118. Proposed section 309, Tribunals Amalgamation Bill 2014, p. 183. 119. Parliament of Australia, ‘Social Services and Other Legislation Amendment (Student Measures) Bill 2014 homepage’, Australian Parliament website, accessed 17 March 2015. 120. Archives Act 1983, accessed 17 March 2015. 121. Explanatory Memorandum, op. cit., p. 220.

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Appendix A

Offence provision Current maximum penalty Proposed maximum penalty

Administrative Appeals Tribunal Act 1975

S61- failure to comply with a summons 30 penalty units or imprisonment for six months, or

both

60 penalty units or imprisonment for 12 months, or both

S62(1) - refusal to take an oath or affirmation 30 penalty units or imprisonment for six months, or

both

60 penalty units or imprisonment for 12 months, or both

S62(3) -refusal to answer questions 30 penalty units or imprisonment for six months, or

both

60 penalty units or imprisonment for 12 months, or both

S62A-gives false or misleading evidence 30 penalty units or imprisonment for six months, or

both

60 penalty units or imprisonment for 12 months, or both

S 62C-breach of a non-disclosure order New offence 60 penalty units or imprisonment

for 12 months, or both

S63(1)-conduct that obstructs or hinders the Tribunal or a member in the performance of functions of the Tribunal

30 penalty units or imprisonment for six months, or both

60 penalty units or imprisonment for 12 months, or both

S 63(2)-contempt of the Tribunal 30 penalty units or imprisonment for six months, or both

60 penalty units or imprisonment for 12 months, or both

Migration Act 1958

S 370-failure to comply with a summons Imprisonment for six months 60 penalty units or imprisonment for 12 months, or both

S 371(1)-refusal to take an oath or affirmation Imprisonment for six months 60 penalty units or imprisonment for 12 months, or both

S 371(2)-refusal to answer questions Imprisonment for six months 60 penalty units or imprisonment for 12 months, or both

S 432-failure to comply with a summons Imprisonment for six months 60 penalty units or imprisonment for 12 months, or both

S 433(1)-refusal to take an oath or affirmation Imprisonment for six months 60 penalty units or imprisonment for 12 months, or both

S 433(2)-refusal to answer questions Imprisonment for six months 60 penalty units or imprisonment for 12 months, or both

Social Security (Administration) Act 1999

S165A-failure to comply with an AAT notice to give information or documents

Imprisonment for six months 60 penalty units or imprisonment for 12 months, or both

Child Support (Registration and Collection) Act 1988

S 95H-failure to comply with Imprisonment for six months 60 penalty units or imprisonment

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Offence provision Current maximum penalty Proposed maximum penalty

AAT notice to give information or documents

for 12 months, or both

S 98C-failure to comply with AAT order restricting secondary disclosure of information

Imprisonment for two years 60 penalty units or imprisonment for 12 months, or both

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

S 199-failure to comply with AAT notice to give information or documents

Imprisonment for six months 60 penalty units or imprisonment for 12 months, or both

Paid Parental Leave 2010

S 230-failure to comply with AAT notice to give information or documents

Imprisonment for six months 60 penalty units or imprisonment for 12 months, or both

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