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Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021



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BILLS DIGEST NO. 12, 2021-22 19 AUGUST 2021

Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021 Mary Anne Neilsen Law and Bills Digest Section

Contents

Purpose of the Bill ........................................................... 3

Structure of the Bill and commencement ......................... 3

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

Administrative Appeals Tribunal ................................. 4

Amalgamation and statutory review....................... 5

Committee consideration ................................................ 6

Senate Legal and Constitutional Affairs Legislation Committee ................................................ 6

Senate Standing Committee for the Scrutiny of Bills .............................................................................. 7

Policy position of non-government parties ....................... 8

Position of major interest groups..................................... 8

Financial implications ...................................................... 9

Statement of Compatibility with Human Rights................ 9

Parliamentary Joint Committee on Human Rights ..... 9 Key issues and provisions .............................................. 10

Schedule 1—Main amendments ............................... 10

Part 1—Powers to require giving of information or evidence or production of documents. .............. 10 Part 2—Procedural fairness .................................... 10

Part 3—Alternative dispute resolution processes .. 11 Comment ............................................................... 12

Part 7—Correction of errors ................................... 12

Comment ............................................................... 12

Part 8—Appointments, Authorisations and Assignments ............................................................ 13

Comment ............................................................... 13

Part 10—Protection and Immunity of Reviewers of Immigration Assessment Authority .................... 14

Date introduced: 23 June 2021

House: Senate

Portfolio: Attorney-General

Commencement: Various dates as set out on pages 3-4 of the Bills Digest.

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 Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at August 2021.

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Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021 2

Comment ............................................................... 14

Part 13—Admiralty amendments ........................... 14

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

Part 15—Other amendments .................................. 15

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

Schedule 2 - Remote hearing amendments ............. 16 Comment ............................................................... 17

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Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021 3

Purpose of the Bill The Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021 (the Bill) introduces a number of administrative amendments across a range of legislation related to Australia’s federal courts and tribunals.

Structure of the Bill and commencement The Bill comprises three Schedules:

• Schedule 1 is divided into 15 Parts. The majority of these Parts propose amendments relating to the operation of the Administrative Appeals Tribunal (the AAT or the Tribunal) and the review processes within its various Divisions. The purposes of the 15 Parts are as follows:

- Part 1: to amend the Administrative Appeals Tribunal Act 1975, A New Tax System (Family Assistance) (Administration) Act 1999, Child Support (Registration and Collection) Act 1988, Paid Parental Leave Act 2010 and Social Security (Administration) Act 1999 in order to standardise across Divisions of the Tribunal the AAT’s powers to issue summonses to require persons to give evidence or produce documents.

- Part 2: to harmonise procedural fairness requirements in relation to non-agency parties in the Social Services and Child Support Division (SSCSD) of the Tribunal. - Part 3: to enable alternative dispute resolution processes to be used in the SSCSD so that pre-hearing conferences can be held. - Parts 4 and 5: to clarify aspects of the AAT’s operations relating to the constitution and

reconstitution of the Tribunal. - Part 6: to standardise the time for applying for reinstatement of an application for review that has been dismissed. - Part 7: to allow for greater flexibility in the correction of errors in the text of an AAT

decision. - Part 8: to update provisions relating to the appointment and assignment of members on an acting basis, and provisions relating to the appointment and authorisation of officers of the

AAT to perform functions in relation to proceedings. Part 8 also provides that the role of the Governor-General in the appointment processes of the AAT be replaced and given to the Minister. - Part 9: to clarify the AAT’s power to tax costs in cases where it has ordered that costs be paid. - Part 10: to provide statutory immunity for Reviewers in the Immigration Assessment Authority. - Part 11: to amend the Child Support (Registration and Collection) Act 1988 to clarify that, when the AAT reviews child support decisions about the percentage of care for a child, each parent or non-parent carer is able to apply for review of the decision and is automatically a party to the review. - Part 12: to amend the Military Rehabilitation and Compensation Act 2004 to provide that a claimant is automatically a party to an application to the AAT made by the Chief of the Defence Force or the Military Rehabilitation and Compensation Commission for review of a decision of the Veterans’ Review Board. - Part 13: to apply the Legislation Act 2003 to the Admiralty Act 1988 to align its application to the Admiralty Rules 1988 with its application to other rules of the federal courts. - Part 14: to amend the Foreign States Immunities Act 1985 to clarify the application of the Act to ex parte proceedings to ensure that foreign States are afforded appropriate procedural protections. - Part 15: other amendments including to allow the Federal Court of Australia to provide short form judgements in certain proceedings. • Commencement: Part 1 of Schedule 1 commences on a day to be fixed by Proclamation or six months from the day that the Act receives Royal Assent, whichever is the earlier. Parts 2 to 15 commence the day after the Act receives Royal Assent.

• Schedule 2 contains amendments dealing with remote hearings.

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Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021 4

• Commencement: Part 1 of Schedule 2 commences the day after the Act receives Royal Assent. Parts 2 and 3 contain amendments whose commencement date is contingent on the commencement of the Federal Circuit and Family Court of Australia Act 2021.1

• Schedule 3 repeals the Nauru (High Court Appeals) Act 1976 so that the High Court of Australia is no longer able to hear appeals from the Supreme Court of Nauru.

• Commencement: Schedule 3 commences the day after Royal Assent.

The Bills Digest does not examine all Schedules in detail. For further information the reader is referred to the Explanatory Memorandum to the Bill.2

Background

Administrative Appeals Tribunal The Administrative Appeals Tribunal (the AAT or the Tribunal) was established by the Administrative Appeals Tribunal Act 19753 (the AAT Act) and commenced operations on 1 July 1976. The principal feature of the new body was that it could review all aspects of a decision made by government—the merits function—and if appropriate, remake the decision.4

In carrying out its functions, the AAT must pursue the objective of providing a mechanism of review that:

• is accessible

• is fair, just, economical, informal and quick

• is proportionate to the importance and complexity of the matter and

• promotes public trust and confidence in the decision-making of the Tribunal.5

Decisions made by Australian Government ministers, departments and agencies and, in limited circumstances, by state government and nongovernment bodies, are reviewed in one of the AAT’s nine Divisions: Freedom of Information; General; Migration and Refugee; National Disability Insurance Scheme; Security; Small Business Taxation; Social Services and Child Support; Taxation and Commercial; and Veterans’ Appeals.6

The Immigration Assessment Authority (IAA), a separate office within the AAT’s Migration and Refugee Division, provides independent merits review of certain visa decisions. It must pursue the objective of providing a mechanism of review that is efficient, quick and free of bias.7

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.8 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. The most common types of decisions reviewed relate to:

1. Further commencement details are set out in clause 2 of the Bill. 2. Explanatory Memorandum, Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021. 3. The original 1975 Administrative Appeals Tribunal Act is located on the Federal Register of Legislation. 4. R Creyke, ‘Tribunals—"Carving out the philosophy of their existence”: the challenge for the 21st century’, AIAL Forum, 71,

December 2012, p. 20. 5. AAT Act, section 2A. 6. Administrative Appeals Tribunal (AAT), Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry

into the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021, 15 July 2021, p. 1. 7. Ibid.

8. AAT, ‘About the AAT’, AAT website, n.d.

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Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021 5

• child support

• Commonwealth workers’ compensation

• family assistance, paid parental leave, social security and student assistance

• migration and refugee visas and visa-related decisions

• taxation

• veterans' entitlements.9

Amalgamation and statutory review On 1 July 2015, the AAT was amalgamated with the former Migration Review Tribunal (MRT), Refugee Review Tribunal (RRT) and Social Security Appeals Tribunal (SSAT).10 In general, the procedures that applied to the conduct of reviews in the AAT, MRT, RRT and SSAT were preserved in the amalgamated AAT, embedded in the legislation that governs the operations of the AAT’s Divisions.11 The Bills Digest for the Tribunals Amalgamations Bill 2015 provides detail of this amalgamation.12

Three years following the amalgamation, a review of the Tribunals Amalgamation Act was conducted by the former High Court Justice, Ian Callinan AC. This review was in accordance with the statutory requirement under section 4 of that Act (the Statutory Review). The report of the Statutory Review was tabled in Parliament on 23 July 2019 (the Report).13

In responding to the Statutory Review’s terms of reference, the Report draws the following conclusions:

• the objectives of the Tribunal Amalgamation Act have not yet been achieved

• the AAT is not operating as a truly amalgamated body; some separation is dictated by differing legislated regimes. To some extent separation is appropriate

• opinions about decisions often depend upon the philosophy or perspectives of people considering them. There is reason to believe that the AAT is genuinely attempting to promote public trust and confidence:

- the AAT is, for various reasons, not always meeting community expectations and - in some respects, differing legislation, practice directions, ministerial directions, guidelines and policies of the AAT do not interact efficiently or effectively • workloads and backlogs in the AAT are preventing timely and final resolution of matters

• the AAT’s operations and efficiency can be improved through further legislative amendments or non-legislative changes

• funding arrangements for the operations of the AAT are neither appropriate nor consistent across Divisions.14

Ian Callinan, in the Report, further notes the difficulties and challenges of amalgamation stating:

9. Ibid.

10. The amalgamation was achieved through enactment of the Tribunals Amalgamation Act 2015. 11. AAT, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021, op. cit., p. 2. 12. M Coombs, C Petrie and D Spooner, Tribunals Amalgamation Bill 2014, Bills digest, 83, 2014-15, Parliamentary Library,

Canberra, 2015. 13. Attorney-General’s Department (AGD), ‘Report on the statutory review of the Tribunals Amalgamation Act 2015’, AGD website, n.d.; I Callinan, Review: section 4 of the Tribunals Amalgamation Act 2015 (Cth), AGD, [Canberra], 2019. 14. Callinan, Review, op. cit., pp. 26-27.

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No one could doubt the good intentions that moved the Parliament to enact the [Tribunals Amalgamation Act]. Perhaps what may, however, have been underestimated, are the increasing volume of matters to be reviewed and the divergences in practices, legislative or otherwise, of the different Tribunals and Divisions which came to constitute the amalgamated AAT. Not only were the practices and procedures different, but, also, the organisation and presentation of files by Departments whose decisions are reviewable were different. As desirable as complete harmonisation may theoretically be, it is difficult and probably undesirable to impose upon the respective Divisions, identical, or even very similar practices and procedures.15

The Report contains 37 measures or recommendations for the Attorney-General to consider. These measures are a mix of legislative and non-legislative administrative changes aimed at improving the operation and efficiency of the AAT.16

The Government has not formally responded to the Report, although a few of the measures in Schedule 1 of the Bill adopt or partially adopt some of the Statutory Review’s recommendations.17 The Explanatory Memorandum makes only brief mention of the Review stating:

This Bill seeks to improve the operation of the AAT, and is an initial step in doing so in legislation following the statutory review.18

Committee consideration

Senate Legal and Constitutional Affairs Legislation Committee The Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 13 August 2021 (Committee inquiry into the Bill). Details of the inquiry and the report are at the inquiry webpage.

The majority Committee report recommends that the Senate pass the Bill. While acknowledging the concerns raised by some submitters about certain aspects of the Bill, the Committee is of the view that ‘the amendments proposed seek to facilitate improved outcomes for the operation of federal courts and tribunals and are largely administrative in nature’.19

The Labor Senators produced a minority report stating that while supporting the majority of the measures in the Bill, there are three measures they do not support. Before passage, the Senators recommend the Bill be amended to remove the measures that:

• provide that the role of the Governor-General in the appointment processes of the AAT be replaced and given to the Minister (Part 8 of Schedule 1)

• confer statutory protection and immunity on the Immigration Assessment Authority’s Reviewers in relation to the performance of their duties under the Migration Act 1958 (Part 10 of Schedule 1)

• allow the Federal Court to provide short form and abbreviated judgments (Part 15 of Schedule 1).20

The Australian Greens Senator provided a dissenting report recommending removal of these same three measures. In addition, the Australian Greens report recommends the Government should:

15. Ibid., p. 162. 16. Ibid. The measures are listed at pages 6 to 25 of the Report. 17. These measures are discussed in the Key issues and provisions section of this Digest. 18. Explanatory Memorandum, Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021, p. 2. 19. Senate Legal and Constitutional Affairs Legislation Committee, Courts and Tribunals Legislation Amendment (2021 Measures

No. 1) Bill 2021, Senate, Canberra, 2021, pp. 13-14. 20. Ibid., pp. 17-18.

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Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021 7

• abolish the Immigration Assessment Authority and establish a fairer process for persons seeking asylum

• properly resource the AAT and appoint more relevantly qualified and experienced AAT members to address the current backlogs

• create an independent body to make AAT appointments to strengthen the independence of the AAT appointment process and ensure that only relevantly experienced and qualified people are appointed.21

The views expressed by some submitters to the inquiry are set out below under the headings Position of major interest groups and Key issues and provisions.

Senate Standing Committee for the Scrutiny of Bills The Committee, in its 10th report for 2021 commented on provisions in Part 13 of Schedule 1 to the Bill. Part 13 provides that the Legislation Act is to apply to the Admiralty Rules, subject to certain exceptions. The Committee’s particular concern was proposed paragraph 41(5)(b) of the Admiralty Act which provides that the Legislation Act, as it applies to the Admiralty Rules, is subject to such further modifications or adaptations as prescribed by the Regulations.

The Committee explained that this provision would effectively grant power for delegated legislation to modify primary legislation (akin to a Henry VIII clause). The Committee has significant scrutiny concerns with Henry VIII-type clauses as ‘such clauses impact on the level of parliamentary scrutiny and may subvert the appropriate relationship between the Parliament and the executive, impacting upon Parliament's constitutional role as lawmaker-in-chief’.22 The Committee therefore expects a sound justification to be included in the Explanatory Memorandum for the use of such clauses.23

Noting there is no justification for proposed paragraph 41(5)(b) in the Explanatory Memorandum, the Committee sought the Attorney-General’s advice ‘as to why it is considered necessary and appropriate to allow delegated legislation to modify the operation of the Legislation Act 2003 as it applies to the Admiralty Rules 1988’.24

In response, the Attorney-General advised that the proposed amendments to the Admiralty Act would provide that the Admiralty Rules ‘are dealt with in the same way as other federal rules of court, including by being registered and published’.25

The Attorney-General explained that ‘these amendments will not allow any modification to, or affect the operation of, the parliamentary scrutiny provisions in the Legislation Act 2003 in respect of the Admiralty Rules’.26 She stated:

… proposed paragraph 41(5)(b) expressly limits the power to make regulations modifying the application of Part 2 of Chapter 3 of the Legislation Act 2003 to the Admiralty Rules, thereby ensuring Parliamentary scrutiny remains in place.27

In response to the Committee concerns, the Attorney-General advised that the Department would table an addendum to the Explanatory Memorandum that identifies that proposed

21. Ibid., p. 21. 22. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 10, 2021, The Senate, Canberra, 13 July 2021, pp 1-2. 23. Ibid. 24. Ibid., p. 2. 25. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 11, 2021, The Senate, Canberra, 4 August 2021, p. 3. 26. Ibid. 27. Ibid.

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Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021 8

paragraph 41(5)(b) ‘is not intended to allow for modifications to the application of relevant Parliamentary scrutiny provisions to the Admiralty Rules’.28

In light of the information provided and the Attorney-General's undertaking, the Committee made no further comment on this matter.29

Policy position of non-government parties The views of Labor and the Australian Greens are expressed in the Report of the Committee inquiry into the Bill.30

At the time of writing, the views of other non-government parties and independents are not known.

Position of major interest groups The Senate Legal and Constitutional Affairs Legislation Committee inquiry into the Bill received nine submissions.31 A selection of submitters’ views is provided here and in the Key issues and provisions section below.

The Law Council of Australia, in its submission, is generally supportive of the measures proposed in the Bill and considers that the measures will be of some benefit in improving and clarifying several processes in the federal courts and the AAT.32 The submission also points to three amendments that implement recommendations of the Report of the Statutory Review and is generally supportive of these amendments, although also pointing to certain recommendations that are not adopted in the Bill.33 The Law Council states that it looks forward to continuing to work with the Australian Government and the AAT on the implementation of further recommendations of the Statutory Review.34

The Administrative Appeals Tribunal (AAT) submits that the Bill is a welcome step towards realising further benefits from the amalgamation of tribunals in 2015. The submission focuses particularly on the amendments proposed to the AAT Act and social services legislation in Parts 1 to 3 of Schedule 1 to the Bill which will reduce areas of difference in the legislation applying to reviews in the AAT’s SSCSD. It states:

The proposed changes will have a number of benefits. They will enhance the Tribunal’s ability to manage cases effectively and efficiently, improving our flexibility to tailor procedures to best suit the requirements of different cohorts of cases. By reducing complexity in the legislation the AAT must apply, they will make it easier for members and staff to work across divisions and reduce the costs of developing new digital systems to support the review process. The changes will also promote access to justice for users of the AAT’s services by standardising procedural fairness requirements and providing for additional, more informal review pathways where appropriate.35

The submission concludes:

28. Ibid. 29. Ibid. p. 4. 30. See pp. 6-7 of the Bills Digest. 31. Senate Legal and Constitutional Affairs Legislation Committee, ‘Submissions’, Inquiry homepage. 32. Law Council of Australia (LCA), Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the

Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021, 15 July 2021, p. 1. 33. Ibid. 34. Ibid., p. 2 35. AAT, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Courts and Tribunals

Legislation Amendment (2021 Measures No. 1) Bill 2021, op. cit., p. 2

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Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021 9

The AAT will continue to engage with the Attorney-General’s Department and other departments in relation to opportunities for further legislative harmonisation, particularly in the Migration and Refugee Division, and other opportunities for legislative change that will support the Tribunal’s operations and the achievement of our statutory objective.36

The Law Institute of Victoria (LIV) raises three concerns with the Bill relating to amendments that would:

• provide that the role of the Governor-General in the appointment processes of the AAT be replaced and given to the Minister (Part 8 of Schedule 1)

• confer statutory protection and immunity on the Immigration Assessment Authority’s Reviewers in relation to the performance of their duties under the Migration Act 1958 (Part 10 of Schedule 1)

• allow the Federal Court to provide short form and abbreviated judgements (Part 15 of Schedule 1).37

LIV’s particular concerns are discussed below in the Key issues and provisions section.

Other submitters also raise concerns with these specific amendments. The Asylum Seeker Resource Centre in its submission notes particularly the impact on refugee determination processes arguing:

We are concerned that provisions in this Bill will further impugn the independence and integrity of the AAT, and inappropriately shield reviewers of the IAA from legal accountability s (sic) public servants, while seeking to cement the pretence that the IAA is a legitimate merits review body. More generally, these changes will erode the quality and reliability of refugee determination processes, resulting in more refugees not being recognised when they should be, and consequently facing refoulement to situations of persecution in breach of Australia’s international obligations. This is a high risk given the systemic barriers many people seeking asylum already face in putting their cases forward, for the reasons highlighted above.38

Financial implications The Explanatory Memorandum states that the Bill does not have a financial impact.39

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. The Government considers that the Bill is compatible.40

Parliamentary Joint Committee on Human Rights The Committee had no comment on the Bill.41

36. Ibid., p. 3. 37. Law Institute of Victoria, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021, 15 July 2021. 38. Asylum Seeker Resource Centre, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into

the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021, 15 July 2021, p. 1. 39. Explanatory Memorandum, Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021, p. 4. 40. The Statement of Compatibility with Human Rights can be found at pages 5-8 of the Explanatory Memorandum to the Bill. 41. Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 9, 2021, 4 August 2021, p. 11.

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Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021 10

Key issues and provisions

Schedule 1—Main amendments

Part 1—Powers to require giving of information or evidence or production of documents. In all Divisions of the AAT, the AAT has powers to require parties and other persons to provide information or documents to the AAT.42 These include powers to require a person to give evidence and/or produce documents for the purposes of a review. Subsection 40A(1) of the AAT Act sets out this power for all Divisions except the SSCSD where the equivalent powers exist in legislation outside of the AAT Act.43 It is of note that the MRD is largely excluded from the Part of the AAT Act that includes subsection 40A(1), and from the following proposed amendments in Part 1, by virtue of section 24Z of the AAT Act.44

Part 1 of Schedule 1 repeals provisions across several pieces of legislation45 to allow section 40A of the AAT Act to be applied in relation to SSCSD proceedings and therefore allow the President or an authorised member or officer of the AAT to summon a person to give evidence or produce documents under the AAT Act, rather than under social security legislation.

The effect of Part 1 is to standardise across Divisions (other than the MRD) the use of a single set of powers set out in the AAT Act to require parties to provide information or to otherwise require persons to give evidence or produce documents.

These amendments implement, in part, Measure 33 in the Statutory Review Report which recommends:

A standardised power for the AAT to compel persons to give the AAT information or evidence by issuing a notice or summons should be introduced. Sanction for non-compliance with the notice or summons should also be available.46

Part 2—Procedural fairness Part 2 of Schedule 1 contains further amendments that aim to standardise arrangements in relation to the SSCSD.

Currently, 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’). These circumstances are if it appears to the AAT that the issues for determination on the review can be adequately determined in the absence of the parties and the parties consent to the review being determined without a hearing.

Item 16 amends section 34J to specify that the consent of the agency party in an SSCSD proceeding is not required before the AAT can determine a review ‘on the papers’. The rationale

42. Explanatory Memorandum, Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021, p. 12. 43. Ibid. 44. Section 24Z provides that, with the exception of two provisions, Part IV review of decisions procedures do not apply to a proceeding in the MRD. The two provisions that do apply are: section 25, which provides that other enactments may give the

Tribunal jurisdiction to review decisions, and section 42 which concerns the resolution of disagreements amongst members on a panel in a particular proceeding. 45. Part 1 proposes amendments to: the AAT Act subsection 40A(1); A New Tax System (Family Assistance) (Administration) Act sections 117-8, 119(1); Child Support (Registration and Collection) Act sections 95F-95G, 95H(1); Paid Parental Leave Act

sections 228-9, 230(1); and Social Security (Administration) Act section 147 (table item 3), 165, 165A (heading), 165A(1), 165A(3). 46. Callinan, Review, op. cit., pp. 23-24.

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for this amendment is that the agency party does not generally participate in a hearing in a proceeding in the SSCSD, and therefore it is not necessary to seek their consent.47

Section 39 of the AAT Act deals with procedural fairness matters. Amongst other things it places obligations on the AAT to ensure parties to proceedings have a reasonable opportunity to present their case and, in particular, to inspect any documents to which the AAT proposes to have regard and make submission in relation to those documents. This section does not apply to proceedings in the SSCSD which are currently dealt with in section 39AA. Subsection 39AA(1) provides that non-agency parties to a proceeding before the Tribunal in the SSCSD may make oral and written submissions. Subsections 39AA(2) to (5) deal with submissions by agency parties and provide that submissions may only be made in exceptional circumstances.

Items 17-22 amend section 39 and section 39AA, the effect being that non-agency parties in the SSCSD will be covered by section 39 and therefore have the same procedural fairness rights as parties in other Divisions to whom section 39 applies. The rights of an agency party in the SSCSD will not be affected and will continue to be dealt with under section 39AA. According to the Explanatory Memorandum these amendments reflect that SSCSD agencies do not generally participate in AAT first reviews.48

Part 3—Alternative dispute resolution processes Division 3 of Part IV of the AAT Act deals with the use of alternative dispute resolution (ADR) processes in AAT reviews. Section 34A of the AAT Act provides that the President of the AAT may direct that a proceeding, or any part of it or matter arising out of the proceeding, be referred to an ADR process to be conducted by a member, officer of the AAT or a suitable person engaged by the Registrar.

The Explanatory Memorandum explains that these types of pre-hearing processes, particularly conferencing and conciliation, are commonly used in most Divisions of the AAT:

They offer an opportunity for the AAT to assist parties to identify and narrow the issues in the review, explore whether an application can be resolved by agreement and otherwise clarify the steps required to prepare for a hearing.49

Section 34 provides that Division 3 of Part IV of the AAT Act relating to ADR processes does not apply to a proceeding in the Security Division or in the SSCSD. Item 24 repeals and replaces this paragraph, the effect being to enable ADR to be used in the SSCSD. Item 25 has the effect of limiting ADR in the SSCSD to conferencing. It also provides that the agency party to a proceeding is not required to participate in a pre-hearing conference. The Explanatory Memorandum explains that these provisions reflect that the agency party does not generally participate in a review in the SSCSD and that, in these circumstances, conferencing is the type of process most suited to the SSCSD.50

47. Explanatory Memorandum, Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021, p. 16. 48. Ibid. In most Divisions of the Tribunal only one review is to be conducted. However, a second review or second tier review is available in some social security matters. While the agency is not usually involved in AAT first reviews it would be involved in second tier reviews. Callinan, Review, op. cit., pp. 13, 101. Section 4 includes a definition of second review: a review by the

Tribunal of a decision is or would be a second review if another enactment: authorises an application to be made for review of the decision; and designates the review as an AAT second review. 49. Explanatory Memorandum, Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021, p. 17. 50. Ibid., p. 18.

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Comment The AAT welcomes this amendment stating that it will enable the Tribunal to hold pre-hearing conferences in appropriate types of cases in the SSCSD such as child support reviews.51

This amendment partially implements Measure 30 of the Report of the Statutory Review, which recommends:

Amendment to the AAT Act to enable access to ADR, case conferencing, conciliation and pre-hearing conferences, either by consent of the applicant and the Department or by direction of the AAT, across all Divisions of the AAT.52

It is of note that the MRD is excluded from the proposed amendments in Part 3 by virtue of section 24Z of the AAT Act.53

Part 7—Correction of errors Subsection 43AA(4) of the AAT Act provides that the AAT’s power to correct errors in the text of a decision or in a written statement of reasons for the decision can only be exercised by the President or the member who presided at the proceeding.54

Item 43 repeals this provision and substitutes proposed subsection 43AA(4) which provides that the power to correct errors in decisions or statement of reasons may be exercised by:

• the member who constituted the AAT for the purposes of the proceeding or, if the AAT was constituted by more than one member, the member who presided at the proceeding or

• if that member has stopped being a member or is unavailable for any reason, the President or an authorised member.

The Explanatory Memorandum states this amendment will give greater flexibility to the AAT in correcting errors, and allow those errors to be corrected more quickly, in circumstances where the presiding member is unavailable.55

Comment The Law Council supports this amendment noting that it was a recommendation in the Statutory Review Report.56 However, the Law Council also observes the amendment will not apply to the MRD. The Law Council submission states:

… no amendment has been made to amend section 24Z of the AAT Act so that section 43AA would also apply to the Migration Review Division as recommended by the Statutory Review.57

The Statutory Review Report Measure 36 recommends:

51. AAT, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021, op. cit., p. 2. 52. Callinan, Review, op. cit., p. 22. 53. Section 24Z provides that, with the exception of two provisions Part IV review of decisions procedures do not apply to a

proceeding in the MRD. The two provisions that do apply are section 25, which provides that other enactments may give the Tribunal jurisdiction to review decisions; and section 42 which, concerns the resolution of disagreements amongst members on a panel in a particular proceeding. 54. Errors that can be corrected under this provision include: obvious errors in the text of a decision such as obvious clerical or typographical errors or inconsistencies between the decision and the statement of reasons (subsection 43AA(3)). 55. Explanatory Memorandum, Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021, p. 23. 56. The relevant recommendation is Measure 35. LCA, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021, op. cit., p. 2. 57. Ibid.

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Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021 13

Amend s 24Z of the AAT Act so that s 43AA will apply to the MRD.58

Section 24Z of the AAT Act provides that, with the exception of two provisions, Part IV review of decisions procedures do not apply to a proceeding in the MRD. The two provisions that do apply are section 25, which provides that other enactments may give the Tribunal jurisdiction to review decisions; and section 42 which, concerns the resolution of disagreements amongst members on a panel in a particular proceeding.

Part 8—Appointments, Authorisations and Assignments Section 7 of the AAT Act sets out the qualification requirements for appointment as the President, Deputy President, a senior member and member of the AAT. Paragraphs 7(2)(c) and 7(3)(b) require the Governor-General to form an opinion as to whether a person has special knowledge or skills relevant to the duties of a Deputy President, a senior member or other member for the purposes of appointment to the AAT. Item 45 amends section 7 to provide that it is the opinion of the Minister (and not the Governor-General) that is relevant in relation to a person’s eligibility for appointment.

However, it remains the Governor-General who actually makes the appointments (section 6 of the AAT Act).

Comment The Explanatory Memorandum notes that the Office of Parliamentary Counsel Drafting Directions recommend that, generally, legislation which requires the Governor-General to form an opinion or do an activity should be updated to ensure that the opinion or activity is conferred on the Minister and not the Governor-General.59

However, some submissions to the Senate inquiry into the Bill question the rationale for this change. As noted above, the LIV raised concerns that this amendment will remove the safeguard and rigour that is currently maintained through the Governor-General’s authority to make these decisions. LIV’s submission to the Committee inquiry into the Bill argues this will further undermine the independence of the appointment process and unnecessarily increase ministerial power.60 The submission continues:

We wish to clarify whether the reason for this amendment is due to the Governor-General generally supporting the appointments put to it by the Minister and therefore the government deems this step as unnecessary. We are concerned that by removing this step, it will further remove transparency in the process of appointing members to the AAT. The Statutory Review of the Tribunals Amalgamation Act 2015 submits that Members should be selected through a transparent process given the concerns regarding the politicised nature of appointments at the AAT.61 There needs to be a perception of separation of powers in order to maintain public confidence in the integrity and independence of the Tribunal review system and Part 8 of the Bill does not provide for this.62

58. Callinan, Review, op. cit., p. 25. 59. Explanatory Memorandum, Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021, p. 23; Office of Parliamentary Counsel (OPC), Drafting directions, ‘Drafting direction 3.4-Conferral and exercise of powers (including by the Governor-General’, OPC website .

60. LIV, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021, op. cit., [p. 1]. 61. Quoting: Callinan, Review, op. cit., p. 170. 62. LIV, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Courts and Tribunals

Legislation Amendment (2021 Measures No. 1) Bill 2021, op. cit., [pp. 1-2].

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Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021 14

Part 8 also contains other amendments to do with AAT appointment processes. These are described in detail in the Explanatory Memorandum.63

Part 10—Protection and Immunity of Reviewers of Immigration Assessment Authority The Immigration Assessment Authority (IAA), established under Part 7AA of the Migration Act 1958, conducts merits review of certain decisions about protection (refugee) visas. The IAA is a separate office within the AAT’s Migration and Refugee Division (MRD) and consists of the President of the AAT, the Division Head of the MRD, the Senior Reviewers and the Reviewers. The Senior Reviewer and Reviewers must be engaged under the Public Service Act 1999.64

Section 60 of the AAT Act provides that AAT members, ADR practitioners and officers of the AAT have, in the performance of their duties, the same protection and immunity as a Justice of the High Court. However, section 60 does not apply to the IAA Reviewers, nor does the Migration Act confer any protection or immunity on them in relation to the performance of their duties under Part 7AA of that Act.

Item 64 inserts proposed subsection 60(1C) into the AAT Act to provide that Reviewers (including Senior Reviewers) have, in the performance of their duties under the Migration Act 1958, the same protection and immunity as a Justice of the High Court.

Comment The LIV and other submitters to the Committee inquiry into the Bill do not support this amendment arguing that this is an unnecessary protection for the IAA.65

The LIV submits that the rationale for this amendment is to confer protection and immunity to IAA Reviewers in order to bring them in line with those protections and immunities conferred on AAT members. However, the view of LIV members is that the role of the IAA Reviewers and AAT Members is inherently different. They point to many clear differences between AAT Members and IAA Reviewers, noting in particular that IAA Reviewers are engaged by the Public Service Act 1999; there are differences in qualifications and other requirements to hold office; and there is a difference in the nature of IAA reviews, which are conducted 'on the papers' and do not require the Reviewers to afford applicants procedural fairness. They argue that these differences explain the different status conferred on each and suggest that parity of immunity is not justified.66

The LIV also expressed concern that, in seeking to remove personal liability for IAA members, this could ‘reduce scrutiny and oversight of the IAA without adequate justification or consideration of the appropriateness of the proposed immunity’.67

Part 13—Admiralty amendments The Admiralty Act 1988 is one of a number of pieces of legislation which regulate shipping in Australia. Admiralty jurisdiction in summary deals with the right of action in any person who suffers an injury to his or her person or property caused by the maritime fault of the owner or

63. Explanatory Memorandum, Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021, pp. 23-26. 64. Ibid., pp. 26-27. 65. The other submitters are the Asylum Seeker Resource Centre and the Josephite Justice Office. See: Senate Legal and Constitutional Affairs Legislation Committee, ‘Submissions’, Inquiry homepage.

66. LIV, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021, op. cit., [pp. 2-3]. 67. Ibid.

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Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021 15

operator of a ship.68 Under the Admiralty Act, the court may hear and determine 'proprietary' and 'general' maritime claims, as well as claims for damage done to a ship.69

Section 41 of the Admiralty Act allows the Governor-General to may make rules, in relation to the practice and procedure to be followed in courts exercising jurisdiction under the Act. Jurisdiction is conferred on the Federal Court, the Federal Circuit Court and on the courts of the territories, and the courts of the states are invested with federal jurisdiction, in respect of matters arising under the rules.70

Item 72 of Schedule 1 inserts proposed subsection 41(5) into the Admiralty Act to provide that the Legislation Act 2003 applies to the Admiralty Rules, subject to certain exceptions. For example, proposed subsection 41(5) provides that sunsetting provisions within the Legislation Act do not apply to the Admiralty Rules.

The Explanatory Memorandum to the Bill states the application of the Legislation Act to the Admiralty Rules aligns with the application of the Legislation Act to rules of the federal courts and that this amendment implements recommendations of the Report on the Operation of the Sunsetting Provisions in the Legislation Act 2003. It is appropriate that the sunsetting provisions do not apply because the Admiralty Rules are rules of court.71

Proposed paragraph 41(5)(b) provides that the Legislation Act, as it applies to the Admiralty Rules, is subject to such further modifications or adaptations as prescribed by the Regulations.

Comment As noted above, the Senate Standing Committee for the Scrutiny of Bills raised concerns with this paragraph noting that provisions enabling delegated legislation to modify the application of primary legislation, such as this one, are akin to Henry VIII clauses. However, after receiving advice from the Attorney-General about this provision and an undertaking from her that an addendum to the Explanatory Memorandum would be tabled, the Committee made no further comment on this matter.72

Part 15—Other amendments Item 101 amends section 28 of the Federal Court of Australia Act 1976. The effect of this amendment is to allow the Court to give reasons in short form for a decision dismissing an appeal if the Court is unanimously of the opinion that the appeal does not raise any question of general principle. The Attorney-General’s Department submission to the Committee inquiry into the Bill notes this amendment would reflect similar practices already in place in the High Court of Australia, the Family Court of Australia, and the NSW Court of Appeal. It argues the measure will reduce delays in the Federal Court’s hearing of matters without limiting the Court’s ability to provide comprehensive reasons when required.73

68. DJ Cremean, ‘[270-2065] Nature of admiralty jurisdiction’, Halsbury's Laws of Australia, Last updated 23 March 2015. 69. Federal Court of Australia (FCA), ‘Admiralty and Maritime: Admiralty Jurisdiction of the Federal Court’, FCA website, n.d. 70. Admiralty Act, subsection 41(4). 71. Explanatory Memorandum, Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021, p. 29. AGD, Report

on the operation of the sunsetting provisions in the Legislation Act 2003, Sunsetting Review Committee, Canberra, 2017. The Report was tabled on 23 October 2017. Recommendation 34 of the Report states: The Committee recommends that rules of court should not be subject to sunsetting. Recommendation 35 states: The Committee recommends that rules of court should be subject to the registration and publication requirements of the Legislation Act. 72. For further explanation see pp. 7-8 of the Bills Digest. 73. Attorney-General’s Department, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into

the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021, [n.d.], [Submission no. 8], [p. 2].

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Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021 16

Comment The LIV submission to the Committee inquiry into the Bill raises concerns about this amendment stating:

Whilst the LIV understands that this would benefit the court’s efficiencies in managing the cases within the appellate jurisdiction, we are concerned that this will be disadvantageous for self-represented applicants who will not be provided a decision with full reasons. For appellants within administrative law, the court must assess what constitutes a question of general principle. Our members report that there is a decision-making process that is required to form this opinion and effectively short-form decisions would deny an appellant an opportunity of such reasons. Furthermore, we submit that the use of short-form decisions in the administrative law practice area may undermine public confidence and the notion that justice needs to be seen to be done. 74

The LIV agrees that there is a significant burden on the courts currently and supports the court in finding efficiencies to manage the court’s caseload. However, it suggests that the Government ‘identifies other ways to increase resources of the Courts such as by appointing more judges’.75

Schedule 2 - Remote hearing amendments Schedule 2 to the Bill makes amendments to the Family Law Act 1975, the Federal Circuit Court of Australia Act 1999 the Federal Circuit and Family Court of Australia Act 2021, and the Federal Court of Australia Act 1976 to clarify that hearings conducted remotely using videoconferencing technology are exercised in ‘open court’.

For example, in relation to the Federal Court, item 5 inserts proposed subsection 17(1A) into the Federal Court of Australia Act to provide that the circumstances in which the jurisdiction of the Federal Court is exercised in an open court, include where the exercise of jurisdiction is made accessible to the public by way of video link, audio link or other appropriate means. Item 6 inserts proposed subsection 17(5) to provide that a reference in subsection 17(4) of that Act76 to a sitting of the Federal Court, includes a reference to a sitting that is conducted by way of video link, audio link or other appropriate means.

The amendments have retrospective application,77 and will apply to orders made since 15 March 2020, a date chosen to cover the broader use of remote hearings since the beginning of the COVID pandemic.78

Item 8 is a related amendment. It inserts proposed subsection 79(1A) into the Judiciary Act 1903 which provides that for the purposes of subsection 79(1) of that Act,79 a Court exercising federal jurisdiction in a proceeding is taken to be exercising federal jurisdiction in the state or territory in which the proceeding was commenced.

74. LIV, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021, op. cit., [p. 4.] 75. Ibid. 76. Subsection 17(4) is concerned with the ability for the Federal Court to order the exclusion of the public, or of persons

specified by the Federal Court of Australia from a sitting of that Court, if the Court is satisfied that the presence of the public or of those persons would be contrary to the interests of justice. 77. Commencing on 15 March 2020. See, for example, item 7. 78. J Duniam, ’Second reading speech: Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021’, Senate, Debates, 23 June 2021, p. 68. 79. Subsection 79(1) of the Judiciary Act concerns the application of State and Territory laws relating to procedure, evidence, and the competency of witnesses, which shall, except as otherwise provided by the Constitution or other Commonwealth laws, be binding on all Courts exercising federal jurisdiction in that State of Territory in all cases in which they are applicable.

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Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021 17

Comment The Attorney-General’s Department submission to the Committee inquiry into the Bill states that the proposed amendments in Schedule 2 are necessary ‘to put beyond doubt any potential for inconsistency with the open court requirement (that is, a public/physical courtroom) in each of the constituent Acts of the federal courts and ambiguity surrounding the place of the exercise of federal jurisdiction in a remote hearings context’.80

Dr Niamh Kinchin, Senior Lecturer at the University of Wollongong School of Law, in her submission on the Bill cautioned that conducting hearings via videoconference could risk infringements to the ‘open court’ principle established under the common law. She pointed to lesser access for public and professional observers, potential technological failures and lack of access to the requisite skills and equipment as factors that may impinge upon broad-scale open justice.81 Dr Kinchin also observed that these factors are ones to be managed by courts.82

Dr Kinchin also raised an issue concerning a potential intersection between the Bill's proposal to enunciate that the jurisdiction of the court exercised by way of video link, audio link or other means is an exercise in open court and the independence of the judiciary under Chapter III of the Constitution. She stated:

In declaring that the jurisdiction of a court is exercised in open court where its exercise is made accessible to the public by way of video link, audio link or other appropriate means, the legislature identifies some of the characteristics of an open court. Accordingly, the validity of the law depends on the opinion of the law-maker that an ‘open court' includes remote hearings. Although it is the legislature's role to enact laws, it is the role of the judiciary to conclusively determine the constitutional validity of those laws. There is a possibility that the proposed legislation (if challenged) may be found to breach the separation of judicial power as established by Chapter III of the Constitution, and confirmed in the Communist Party Case. The legislature may be found to be trying to ‘recite itself into power' by defining a constitutional principle and as a consequence, proclaiming the constitutional validity of the law.83

The Law Council described these amendments as 'minor' and expressed its support for them.84

80. AGD, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021, op. cit., [p. 3]. 81. N Kinchin, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021, p. 3. 82. Ibid., p. 4. 83. Ibid. 84. Law Council of Australia (LCA), Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the

Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021, op. cit., p. 2.

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