Mr WILLIAMS (Attorney-General) (9:31 AM) —I move:

The Administrative Review Tribunal (Consequential and Transitional Provisions) Bill 2000 is a cognate bill to the Administrative Review Tribunal Bill 2000, which I introduced on 28 June 2000. The latter bill will establish the Administrative Review Tribunal, or ART, as it has become known.

Four merits review tribunals—the Administrative Appeals Tribunal, AAT, the Social Security Appeals Tribunal, SSAT, the Migration Review Tribunal, MRT, and the Refugee Review Tribunal, RRT—will be amalgamated in order to establish the Administrative Review Tribunal. The government is honouring its commitment to the veteran community by retaining the Veterans Review Board and providing for its decisions to be reviewed by the new tribunal.

The establishment of the ART will be the most significant reform to the federal merits review system in 25 years. The ART will become the Commonwealth's principal merits review tribunal, providing ready access to review that is fair, just, economical, informal and quick. It will operate in a `user-friendly' manner and will have the capacity to tailor its procedures to suit the requirements of particular classes of applicants.

The bill I am introducing today forms the second part of the ART legislative package. It makes provision for the following matters.

First, it provides for the abolition of the existing tribunals, the AAT, SSAT, MRT and RRT, and for the repeal of the Administrative Appeals Tribunal Act 1975 and of other legislative provisions that establish and provide for the operation of the existing tribunals.

Secondly, it contains amendments to acts that currently confer jurisdiction on the existing tribunals, so that, on the abolition of those tribunals, that jurisdiction is conferred on the ART.

Thirdly, it makes specific provision for procedures to be followed by the ART in reviewing specified classes of decisions.

Fourthly, the bill contains provisions of a transitional nature. These include provisions for review by the ART of decisions made before the ART commences operations, where such decisions have not already been reviewed by an existing tribunal. It also contains provisions for appeals and references from decisions made by the existing tribunals where the appeals or references have not been completed by the time the ART commences operations. The bill also provides for the transfer to the ART of matters that, just before the ART commences operations, are before the AAT, SSAT, MRT or RRT.

Preparation of the consequential and transitional provisions bill has been a very large undertaking, which involved all departments and many agencies. I therefore introduced the main bill before this bill so that the parliament and the community could examine the general provisions that will establish the new tribunal and provide for its structure, membership and procedures.

The ART Bill has been referred to the Senate Legal and Constitutional Committee. The committee will also have the opportunity to examine this bill.

The consequential and transitional provisions bill contains six clauses providing for the following matters: the short title of the bill (clause 1), the commencement of its provisions (clause 2), the repeal of the Administrative Appeals Tribunal Act 1975, AAT Act, (clauses 3 and 4), the amendment of legislation as set out in the schedules to the bill (clause 5), and the making of transitional and savings regulations (clause 6).

There are 18 schedules to the bill. My comments provide a brief overview of each schedule.

Schedules 1 and 2 will replace references in Commonwealth acts to the AAT and the AAT Act with, respectively, references to the Administrative Review Tribunal and the Administrative Review Tribunal Act 2000.

Schedule 3 makes consequential amendments to various acts. The amendments are necessary as a result of the differences in structure between the current tribunals and the ART, and differences in terminology between the existing legislative provisions and the ART Bill. In some circumstances, the amendments to be made by schedule 3 effect more substantive, though minor, changes to the current review regime. Those amendments are designed to further the objectives of the ART reforms.

Schedules 4 and 5set out procedures for the review by the ART of adverse or qualified security assessments. The Commercial and General Division of the ART will be called the Security Appeals Division when reviewing such assessments. Special procedures are currently used for such reviews, and will continue to be required. They are necessary in order to protect the confidentiality of security intelligence and information used by the Australian Security Intelligence Organisation in making security assessments and to protect other evidence and documents that may be given to the ART for the purpose of reviewing security assessments. Present procedures operate well and provide an appropriate balance between the right of applicants to procedural fairness and the needs of security. Consequently, the schedules make minimal changes to the present arrangements.

Schedule 6 makes consequential amendments to the Taxation Administration Act 1953 in respect of the review of certain taxation decisions. In particular, it provides that the ART Bill is subject to the modifications set out in the schedule to that act, which is to be inserted by schedule 7 of this bill.

Schedule 7 adds schedule 2 to the Taxation Administration Act, to provide for the modified application of the ART Bill to the review of certain decisions made under that act. Generally, the modifications will retain existing procedures for the review of taxation decisions.

The Small Taxation Claims Tribunal, currently operating under the umbrella of the AAT, will be retained in the ART. However, its jurisdictional limit will be changed. Experience has demonstrated that the amount in issue in the review of an objection decision is not necessarily indicative of the complexity of the matter. Schedule 7 therefore raises the monetary limit in the Small Claims Tribunal to $15,000 and at the same time imposes an additional requirement that the matter must be able to be conducted quickly or easily and does not raise an issue of general significance.

Schedule 8 makes consequential amendments to enable the ART to review decisions made by the Veterans' Review Board regarding veterans' entitlements. Such reviews are to take place in the Veterans' Appeals Division of the ART. Schedule 8 also provides that the ART Bill, in relation to applications for review of decisions made under the Veterans' Entitlements Act 1986, is subject to the modifications set out in the schedule to that act, which is to be inserted by schedule 9 to this bill.

The schedule to the Veterans' Entitlements Act that is to be inserted by schedule 9makes provision for reviews by the ART of decisions of the Veterans' Review Board to be treated as second-tier reviews. This is because the board provides first-tier external review of veteran decisions. Veterans will have a right to review by the ART of decisions made by the board.

The retention of the Veterans' Review Board and veterans' rights to a second-tier of review is part of the government's commitment to the veterans community. The government accepts the need for a specialised review mechanism for veterans.

Part 1 of schedule 10 makes consequential amendments to enable the ART to review decisions made under the Social Security Act 1991. Review by the ART will replace review by the SSAT and AAT. Social security reviews will be conducted in the Income Support Division of the ART. The amendments made by schedule 10 will incorporate many of the existing features of review by the SSAT into the ART regime. Part 2 of schedule 10 makes similar amendments in relation to decisions made under the Social Security (Administration) Act 1999.

Presently, decisions in relation to social security matters are generally reviewable internally, after which an application may be made to the SSAT. SSAT decisions are reviewable by the AAT. Under the amendments, after internal review, applications for first-tier review can be made to the ART, after which second-tier review can also be sought on the grounds set out in the ART bill. Schedule 10 also provides that the ART bill, in relation to applications for review of decisions made under the Social Security (Administration) Act, is subject to the modifications set out in the schedule to that act, which is to be inserted by schedule 11 of the bill.

Schedule 11 replaces schedule 3 of the Social Security (Administration) Act, to provide for the modified application of the ART bill to the review of decisions made under that act. Most of the modifications involve changing references to `decision maker' in the ART Bill to `Secretary'. This is to take account of the fact that decision making powers under the social security legislation are vested in the Secretary to the Department of Family and Community Services and then delegated.

Schedule 12 makes similar amendments to those made by schedule 10 to empower the ART to deal with the review of decisions regarding family assistance payments. Schedule 12 will provide for applications for first-tier review to be made to the ART, in the Income Support Division, after which second-tier review can be sought on the grounds set out in the ART Bill. Schedule 12 also provides that the ART bill, in relation to applications for review of decisions made under A New Tax System (Family Assistance) (Administration) Act 1999, is subject to the modifications set out in the schedule to that act, which is to be inserted by schedule 13 of this bill.

Schedule 13 adds a schedule to the A New Tax System (Family Assistance) (Administration) Act to provide for the modified application of the ART Bill to the review of decisions made under that act. Most of the modifications involve changing references to `decision maker' in the ART Bill to `Secretary'. This is to take account of the fact that decision making powers under the family assistance legislation, as with the social security legislation, are vested in the Secretary and then delegated.

Part 1 of Schedule 14 amends the Migration Act 1958. These amendments will have the effect of creating a self-contained code for the conduct of immigration and refugee reviews, most of which will be reviewed in the Immigration Review Division of the ART. This code will effectively replace parts 4 to 10 of the ART Bill.

Overall, the effect of the amendments will be to retain the general structure of review presently conducted by the MRT and the RRT. Currently, most decisions are reviewable by either the MRT (for most visa decisions made under the Migration Act) or the RRT (regarding protection visas). These types of decisions will be covered by the regime established under new part 5 of the Migration Act.

A small number of decisions made under the Migration Act are currently reviewable by the AAT, namely, those relating to business skills visa cancellations, criminal deportation and the refusal or cancellation of a visa on character grounds. Schedule 14 will bring those decisions within the scope of part 5.

Decisions relating to the registration of migration agents, currently not subject to part 5 of the Migration Act, will remain outside part 5. They will be reviewable in the Commercial and General Division of the ART under the procedures established by and under the ART Bill.

The amendments made to part 5, and in particular proposed section 353A, adopt the mechanism in the ART Bill requiring the tribunal to comply with practice and procedure directions made by the minister, the president or the executive member of the Immigration Review Division.

The tribunal's failure to comply with directions will not, in itself, invalidate a decision. This is the current position in relation to non-compliance with directions issued in respect of the MRT and RRT. Subject to significant exceptions, a participant will not be entitled to seek review of the tribunal's decision by the Federal Court under part 8 of the Migration Act on the basis of the tribunal's non-compliance with directions. The exceptions include the following: directions in subsection 353A(4) of the Migration Act, directions regarding a decision to undertake a `review on the papers', the control of appearances, the making of submissions by a representative of the applicant or the department, and the control of examination and cross-examination. The proposed subsection also allows for regulations to be made prescribing additional classes of directions falling within the exceptions.

Proposed sections 362B, 362C and 362D of the Migration Act will allow the ART to end a review without making a decision where the applicant fails to provide information as requested, fails to appear, or fails to comply with a direction. These provisions will allow the ART to dispose more readily of cases where the applicant does not actively pursue his or her case, and are consistent with the provisions in the ART Bill applying to the other divisions. The applicant must be notified that the review has been terminated. However, the applicant's rights are not lost. He or she is then entitled to apply for reinstatement of the review. This amendment is designed to improve the efficiency and effectiveness of decision making in the Immigration Review Division and is consistent with the objectives of the ART reforms and the provisions of the ART Bill applicable to other divisions.

A decision by the tribunal to end a review on this basis will not be judicially reviewable, but a decision not to reinstate the review will be reviewable. Therefore the onus is on an applicant first to apply for reinstatement before seeking judicial review.

Part 2 of schedule 14 amends the Australian Citizenship Act 1948, and part 3 amends the Immigration (Guardianship of Children) Act 1946, to take account of the fact that the review functions under those acts will be undertaken by the ART. Reviews of decisions made under the Australian Citizenship Act and the Immigration (Guardianship of Children) Act will take place in the Commercial and General Division of the ART, reflecting the fact that such reviews have been conducted by the AAT and not the MRT or RRT.

Schedule 15 provides for the transitional provisions required as a result of the abolition of the AAT and the establishment of the ART.

Part 2 preserves the existing entitlements of retired and serving deputy presidents of the AAT to pensions under the Judges' Pensions Act 1968. It also gives an entitlement to a pension to deputy presidents of the AAT who elected to be covered by the Judges' Pensions Act scheme but who would not have qualified for a pension under that scheme by the time the AAT is abolished.

Part 3 deals with the transfer of records and documents between the AAT, ART, Federal Court and Federal Magistrates Service and part 4 makes provision for the final annual report of the AAT.

Part 5, among other things, preserves a person's right to receive notice of certain decisions made before the AAT is abolished and notice of review rights in relation to them and to apply for statements of reasons for such decisions.

Part 6 deals with applications for first tier review by the ART of decisions made before the abolition of the AAT.

Part 7 provides that the ART is to conduct reviews that were before the AAT and were not completed at its abolition. Part 8 ensures that the ART can finish exercising certain other powers or performing certain other functions being exercised or performed by the AAT before its abolition.

Part 9 preserves the effect of decisions made by the AAT and preserves rights to appeal to the Federal Court in respect of AAT decisions and AAT matters that were not exercised before the abolition of the AAT. It also preserves appeals in the Federal Court or the Federal Magistrates Service from the AAT which are in progress at the time the AAT is abolished. Current applications under the Administrative Decisions (Judicial Review) Act 1977or other review rights regarding decisions made by the AAT, for example, under section 75(v) of the constitution or section 39B of the Judiciary Act 1903, will also be preserved.

Part 10 contains a specific provision dealing with the continuing effect, after the AAT is abolished, of a certificate issued by the Attorney-General under subsection 38(2) of the Australian Security Intelligence Organisation Act 1979.

Part 11 ensures the continuing effectiveness of appointments to the Administrative Review Council, and certain other matters, after the repeal of the provisions of the AAT Act providing for the establishment and operations of the council. The ART Bill makes provision for the re-establishment and continuing operations of the council.

Schedule 16 makes similar provision, in relation to the review of migration decisions by the MRT or RRT, to that made in schedule 15 in relation to other classes of decisions that were reviewed or reviewable by the AAT. In summary, existing review rights are preserved, reviews under way in the MRT or RRT at the time the existing tribunals are abolished are to be completed by the ART, and appeal rights regarding MRT or RRT decisions are preserved.

Schedule 17 makes similar provision, in relation to the review of social security and family assistance decisions by the SSAT or AAT, to that made by schedule 15 in relation to other classes of decisions that were reviewed or reviewable by the AAT.

Schedule 18 amends section 20 of the Federal Court of Australia Act 1976. Subsection 20(2) currently provides that, where a matter comes before the Federal Court from a tribunal or authority, the members of which included a judge, it must be heard by a full Federal Court. The amendments made by schedule 18 will allow certain interlocutory and procedural matters in such cases to be dealt with by a single judge, rather than having to be dealt with by the full court.

This bill, together with the main ART Bill, represents a major reform of the federal civil justice system. The new tribunal will retain the independence and effectiveness of the existing tribunals, while improving accessibility, flexibility and user friendliness. I present the explanatory memorandum.

Debate (on motion by Mr Swan) adjourned.