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2013-2014-2015
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
TRIBUNALS AMALGAMATION BILL 2014
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, Senator the Honourable George Brandis QC)
CONTENTS
Amendments to the Tribunals Amalgamation Bill 2014 .......................................................... 2
General outline.......................................................................................................................... 2
Financial Impact Statement....................................................................................................... 3
Amendments to Schedule 1 to the Bill (AAT Act) ................................................................... 4
Amendments to Schedule 3 to the Bill (Social Security).......................................................... 7
Amendments to Schedule 5 to the Bill (Family Assistance) .................................................... 8
Amendments to Schedule 6 to the Bill (Paid Parental Leave) .................................................. 9
Amendments to Schedule 7 to the Bill (Student Assistance)...................................................10
Amendments to Schedule 9 to the Bill (Transitional and Savings Provisions) .......................11
Glossary ...................................................................................................................................26
AMENDMENTS TO THE TRIBUNALS AMALGAMATION BILL 2014
GENERAL OUTLINE
1. The amendments to the Tribunals Amalgamation Bill 2014 (the Bill) would make
minor policy changes and technical corrections to support the operation of the amalgamated
Administrative Appeals Tribunal (AAT) and provide savings and transitional arrangements.
2. The minor policy changes and technical corrections proposed are Amendments 1 to
13 and would affect Schedules 1, 3, 5, 6 and 7 of the Bill. Amendments 2 and 7 would
implement recommendations of the Senate Legal and Constitutional Affairs Legislation
Committee in its report on the Bill, tabled on 16 March 2015.
3. The savings and transitional provisions are Amendments 14 to 21 and would affect
Schedule 9 to the Bill. Schedule 9 presently contains transitional arrangements in relation to
members and other officers of the Tribunals. The primary purpose of the amendments is to
provide for all other necessary transitional arrangements. Key matters provided for include:
rights to apply for merits review would be preserved, including rights to apply for an
extension of time in which to apply for merits review
the new law--the Administrative Appeals Tribunal Act 1975 (AAT Act), and the Acts
conferring jurisdiction on the AAT, as amended by the Bill--would apply from
commencement day (1 July 2015), including in relation to proceedings commenced
and Tribunal decisions made before that date, subject to limited exceptions including
that:
- subsection 34D(4) and 42C(5) of the AAT Act--new powers to vary or revoke
a decision made by consent--would not apply to decisions of the AAT before
commencement day, and
- changes to offence provisions in the AAT Act would not apply in relation to
conduct engaged in before commencement day
proceedings on foot in the Migration Review Tribunal-Refugee Review Tribunal
(MRT-RRT) and the Social Security Appeals Tribunal (SSAT) would be transferred
to the AAT and the validity of anything done by the Tribunals, or by other persons, in
relation to those proceedings would be preserved
- in particular, notices or documents issued to persons would remain valid and
sufficient to meet any statutory requirements to notify a person of their right to
review
directions and orders issued by the AAT, MRT-RRT and SSAT, including practice
directions and directions in relation to specific proceedings, would be preserved
the Immigration Assessment Authority (IAA) would be continued in existence within
the AAT and the validity of all things done in relation to IAA reviews would be
preserved, and
Registries of the discontinued Tribunals would be taken to be Registries of the AAT.
General Outline
2
FINANCIAL IMPACT STATEMENT
4. The amalgamation of the Commonwealth merits review tribunals is expected to
produce savings over the forward estimates period of $7.2 million through reductions in back
office and property expenses. The amendments have no additional financial impact.
Financial Impact Statement
3
AMENDMENTS TO SCHEDULE 1 TO THE BILL (AAT ACT)
Amendment (1)--Person who made the decision
5. Amendment 1 would insert Item 9A into Schedule 1 to the Bill. Item 9A would
clarify that the phrase `person who made the decision' in the AAT Act has a meaning
affected by:
for AAT first reviews within the meaning of the A New Tax System (Family
Assistance) (Administration) Act 1999 (FAA Act)--section 111B of that Act (see
Amendment 10)
for AAT first reviews within the meaning of the Paid Parental Leave Act 2010
(PPL Act)--section 224A of that Act (see Amendment 12)
for AAT first reviews within the meaning of the Social Security (Administration) Act
1999 (SSA Act)--section 142A of that Act (see Amendment 9), and
for AAT first reviews within the meaning of the Student Assistance Act 1973
(SA Act)--section 311A of that Act (see Amendment 13).
6. In effect, this would refer readers to the definitions of the term in those Acts. Those
definitions would ensure that the relevant Departmental Secretary and, where appropriate, the
Chief Executive Centrelink or Chief Executive Medicare--rather than the individual officer
who made the decision--are parties to AAT first reviews and bear the other rights and
obligations afforded to decision makers under the AAT Act.
7. This is a technical amendment to preserve the status quo in respect of the decision
makers who are parties to SSAT proceedings (see section 156 of the SSA Act;
subsection 118(1) of the FAA Act; sections 222 and 230 of the PPL Act; and section 322 of
the SA Act, which would be repealed by the Bill). It is necessary because the term `the
person who made the decision' would be used in various places throughout the AAT Act,
including in determining who are the parties to a review (section 30) and in imposing
requirements to lodge documents with the Tribunal (section 37).
Amendment (2)--Term of appointment of members
8. Amendment 2 would amend Schedule 1 to the Bill to oppose Item 19. Item 19 would
have amended subsection 8(3) of the AAT Act to provide a maximum term of five years for
AAT members. Amendment 2 would have the effect of preserving existing subsection 8(3),
which provides for the appointment of AAT members for periods of up to seven years. The
Senate Legal and Constitutional Affairs Legislation Committee, in its report on the Bill,
tabled on 16 March 2015, recommended that seven year terms be retained, to reinforce the
independence of the AAT.
Amendment (3)--Consultation on practice directions
9. Amendment 3 would insert new subsection 18B(1A) after subsection 18B(1) into
Item 27 of Schedule 1 to the Bill.
10. New section 18B would give the President power to make practice directions for the
Tribunal. New subsection 18B(1A) would provide that before the President makes such a
direction, the President must consult the head of any Division to which the direction would
apply. This amendment would ensure that heads of specialised Divisions can contribute to
the development of applicable practice directions. For example, if practice directions about
alternative dispute resolution are being developed, the Division heads for Divisions in which
alternative dispute resolution can occur would be consulted.
Amendments to Schedule 1 (AAT Act)
4
11. This amendment would not prevent the President from delegating to Division heads
the power to make directions.
Amendment (4)--Consultation on performance of Registrar agency head functions
12. Amendment 4 would insert new subsection 24A(4) at the end of new section 24A in
Item 28 of Schedule 1 to the Bill.
13. Section 24A clarifies the administrative responsibilities of the President and the
Registrar. New subsection 24A(4) would require the Registrar to consult with the President
in relation to the Registrar's performance of functions or exercise of powers under the Public
Governance, Performance and Accountability Act 2013 (PGPA Act) and the Public Service
Act 1999. Such consultation occurs in practice at present. It is appropriate that the President
and Registrar work closely together, as the Registrar's performance of his or her functions
and powers can have a clear bearing on the President's responsibilities to manage the
Tribunal's administrative affairs and the discharge of its business in line with its statutory
objective (see new sections 18A and 24A of the AAT Act, inserted by Items 27 and 28 of
Schedule 1 to the Bill).
14. It is expected that the consultation requirement in subsection 24A(4) would be met in
the normal course of the Registrar's working relationship with the President. No particular
formal arrangement is necessary and the nature and extent of consultation may differ
depending on the matter at hand. The validity of any decision taken by, or any action or
omission of, the Registrar would not be affected by the consultation requirement.
Amendment 5--Enactment may modify etc. provisions
15. Amendment 5 would omit Item 40 in Schedule 1 to the Bill and insert new Items 40
and 40A.
16. New Item 40 would repeal subsection 25(4) of the AAT Act, for the reasons stated at
paragraphs 358-359 of the Explanatory Memorandum (it is essentially declaratory and its
removal would simplify the Act).
17. New Item 40A would amend subsection 25(6) of the AAT Act, which permits other
enactments to modify certain provisions of the AAT Act. The Bill proposed to repeal
subsection 25(6) on the basis that the general principle of statutory interpretation that a later
Act of Parliament overrides an earlier one to the extent of any inconsistency makes it
redundant (see paragraph 360 of the Explanatory Memorandum). However, because the
definition of `enactment' in section 3 of the AAT Act is broad and includes (for example)
Regulations, subsection 25(6) serves the purpose of preserving the validity of enactments that
would not otherwise be permitted to modify the AAT Act. It is desirable to preserve the
status quo that the AAT Act may be modified where appropriate in relation to particular types
of applications. As a result, new Item 40A would retain subsection 25(6) and amend it to
also include new sections 29AB and 29AC in the list of provisions that may be modified by
other enactments. This is a technical amendment made necessary because the matters dealt
with in new sections 29AB and 29AC were previously dealt with in section 29 of the Act,
which is a provision that may be modified under existing subsection 25(6).
Amendment (6)--Oral applications
18. Amendment 6 would remove the words `and the proceeding is not a child support first
review' from subparagraph 29(1)(a)(ii) in Item 46 of Schedule 1 to the Bill.
19. The purpose of this amendment is to preserve the ability to make oral applications to
the amalgamated Tribunal for the review of child support decisions. This is permissible at
Amendments to Schedule 1 (AAT Act)
5
present in the SSAT (paragraph 94(1)(c) of the Child Support (Registration and Collection)
Act 1988 (CSRC Act), to be repealed by the Bill). It is preferable, on balance, to preserve the
status quo, consistent with the general intention to maintain this important feature of the
SSAT in other matters that will be heard in the Social Services and Child Support Division in
the amalgamated Tribunal. While the Explanatory Memorandum (at paragraph 374) notes
that written applications might be advantageous in child support matters, new section 29AA,
as inserted by Item 51 of the Bill, would adequately provide for the management and written
recording of oral applications.
Amendment (7)--Consent for review without hearing
20. Amendment 7 would amend Schedule 1 to the Bill to oppose Items 64 and 65.
Items 64 and 65 would have amended section 34J of the AAT Act to permit the Tribunal to
conduct second reviews of social services matters without holding a hearing, where the
Tribunal considers that the issues could be adequately determined in the absence of the
parties, and even if the parties did not consent. Amendment 7 would have the effect of
preserving existing section 34J of the AAT Act, which permits reviews to be held on the
papers only if the parties consent. The Senate Legal and Constitutional Affairs Legislation
Committee, in its report on the Bill tabled on 16 March 2015, recommended this amendment
in order to ensure that all applicants have the right to a hearing should they so desire.
Amendments to Schedule 1 (AAT Act)
6
AMENDMENTS TO SCHEDULE 3 TO THE BILL (SOCIAL
SECURITY)
Amendment (8)--Technical: correction of cross-reference
21. Amendment 8 would insert new Item 4A into Schedule 3 to the Bill. New Item 4A
would amend the definition of `Secretary' in subsection 23(1) of the Social Security Act
1991, by substituting the words `Division 4 of Part 4' with `Subdivision D of Division 2 of
Part 4A'. This is a technical amendment arising from the proposed amendments in the Bill,
since the provisions in what is now Division 4 of Part 4 of the SSA Act would be moved to
Subdivision D of Division 2 of Part 4A of that Act.
Amendment (9)--Person who made the decision
22. Amendment 9 would insert new Item 35A into Schedule 3 to the Bill. New Item 35A
would insert section 142A into the SSA Act. Section 142A would define the term the `person
who made the decision' in the AAT Act for the purposes of AAT first reviews as:
the Secretary (within the meaning of the SSA Act), and
if the decision was made by the Chief Executive Centrelink or a Departmental
employee (within the meaning of the Human Services (Centrelink) Act 1997) as a
delegate of the Secretary or the Employment Secretary--the Chief Executive
Centrelink.
23. The purpose of this definition is to ensure that the relevant Secretary and, where
appropriate, the Chief Executive Centrelink--rather than the individual officer who made the
decision--are parties to AAT first reviews and bear the other rights and obligations afforded
to decision makers under the AAT Act. As indicated in relation to Amendment 1, the term
`the person who made the decision' would be used in various places throughout the AAT Act
in relation to AAT first reviews under the SSA Act, including in determining who are the
parties to a review (section 30) and in imposing requirements to lodge documents with the
Tribunal (section 37).
Amendments to Schedule 3 (Social Security)
7
AMENDMENTS TO SCHEDULE 5 TO THE BILL (FAMILY
ASSISTANCE)
Amendment (10)--Person who made the decision
24. Amendment 10 would insert new Item 21A into Schedule 5 to the Bill. New
Item 21A would insert new section 111B into the FAA Act. Section 111B would define the
term `the person who made the decision' in the AAT Act for the purposes of AAT first
reviews to mean the Secretary (within the meaning of the FAA Act).
25. The purpose of this definition is to ensure that the relevant Secretary (rather than the
individual officer who made the decision) is a party to AAT first reviews and bears the other
rights and obligations afforded to decision makers under the AAT Act. As indicated in
relation to Amendment 1, the term `the person who made the decision' would be used in
various places throughout the AAT Act in relation to AAT first reviews under the FAA Act,
including in determining who are the parties to a review (section 30) and in imposing
requirements to lodge documents with the Tribunal (section 37).
Amendment (11)--Party to review of care percentage decision
26. Amendment 11 would insert new section 116A into Item 22 of Schedule 5 to the Bill.
New section 116A would provide that the parties to an AAT first review of a care percentage
decision include, in addition to the persons mentioned in subsection 30(1) of the AAT Act,
each person who is a responsible person (within the meaning of the Child Support
(Assessment) Act 1989) for the child to whom the decision relates.
27. In effect, new section 116A would replicate existing section 118 of the FAA Act,
which would be repealed by the Bill. It would ensure that the interests of all affected persons
are considered during the review process.
Amendments to Schedule 5 (Family Assistance)
8
AMENDMENTS TO SCHEDULE 6 TO THE BILL (PAID PARENTAL
LEAVE)
Amendment (12)--Person who made the decision
28. Amendment 12 would insert new section 224A into Item 20 of Schedule 6 to the Bill.
Section 224A would define the term `the person who made the decision' in the AAT Act for
the purposes of AAT first reviews as:
the Secretary (within the meaning of the PPL Act), and
(if applicable) either the Chief Executive Centrelink (if the decision was made by him
or her, or by an APS employee in the Human Services Department within the
meaning of the PPL Act) or the Chief Executive Medicare (if the decision was made
by him or her).
29. The purpose of this definition is to ensure that the relevant Secretary and, where
appropriate, the Chief Executive Centrelink or Chief Executive Medicare--rather than the
individual officer who made the decision--are parties to AAT first reviews and bear the other
rights and obligations afforded to decision makers under the AAT Act. As indicated in
relation to Amendment 1, the term `the person who made the decision' would be used in
various places throughout the AAT Act in relation to AAT first reviews under the PPL Act,
including in determining who are the parties to a review (section 30) and in imposing
requirements to lodge documents with the Tribunal (section 37).
Amendments to Schedule 6 (Paid Parental Leave)
9
AMENDMENTS TO SCHEDULE 7 TO THE BILL (STUDENT
ASSISTANCE)
Amendment (13)--Person who made the decision
30. Amendment 13 would insert new section 311A into Item 11 of Schedule 7 to the Bill.
Section 311A would define the term `the person who made the decision' in the AAT Act for
the purposes of AAT first reviews to mean the Secretary (within the meaning of the SA Act).
31. The purpose of this definition is to ensure that the relevant Secretary (rather than the
individual officer who made the decision) is a party to AAT first reviews and bears the other
rights and obligations afforded to decision makers under the AAT Act. As indicated in
relation to Amendment 1, the term `the person who made the decision' would be used in
various places throughout the AAT Act in relation to AAT first reviews under the SA Act,
including in determining who are the parties to a review (section 30) and in imposing
requirements to lodge documents with the Tribunal (section 37).
Amendments to Schedule 7 (Student Assistance)
10
AMENDMENTS TO SCHEDULE 9 TO THE BILL (TRANSITIONAL
AND SAVINGS PROVISIONS)
Amendments (14) and (19)--Part heading
32. Amendments 14 and 19 would insert Part headings into Schedule 9 to the Bill for ease
of reading:
`Part 1--Preliminary' and
`Part 2--Tribunal members and certain officers'.
Amendments (15) to (18)--Definitions
33. Amendments 15 to 18 would insert new definitions into Item 1 of Schedule 9 to the
Bill.
34. Amendment 15 would define `affected law' to mean an Act that would be amended
by the Bill and would include an instrument made under such an Act.
35. Amendment 16 would define `discontinued Tribunal' to mean the MRT, RRT or
SSAT.
36. Amendment 17 would define `officer', in relation to the SSAT, as a person who
performs functions or exercises powers of the SSAT or performs duties for the SSAT. No
definition of `officer' is necessary for the MRT-RRT, as there is an existing defined term
under section 5 of the Migration Act.
37. Amendment 18 would define `proceeding' to include any of the following:
an application or purported application made to a discontinued Tribunal under an Act
a matter referred to a discontinued Tribunal for inquiry or review under an Act, or
an incidental application to a discontinued Tribunal made in the course of, or in
connection with, an application or proposed or purported application or matter.
38. A reference to a `proceeding' before a Tribunal would include a reference to an
application made or matter referred to a Tribunal.
39. These defined terms are used throughout Schedule 9.
Amendment (20)--Registrar terms and conditions
40. Amendment 20 would insert new subitems (3A) and (3B) into Item 13 of Schedule 9
to the Bill, which is a transitional provision about the appointment and terms and conditions
of the Registrar of the AAT.
41. At the time the Bill was introduced into Parliament, the appointment of the then
Registrar was due to expire shortly after 1 July 2015 (the expected commencement date for
the Bill). It was accordingly appropriate to grandfather the terms and conditions applicable to
that person's appointment. Following the subsequent resignation of the Registrar, it is
expected that a new Registrar will be appointed prior to amalgamation. As the appointment
of the new Registrar will continue for a period well after the commencement date, new
subitem (3A) would provide flexibility to the Minister to vary his or her terms and conditions
in writing (other than those dealt with in subitem (3B)). It is not necessarily expected that
this would occur.
42. New subitem (3B) would preserve the remuneration and allowances paid to the new
Registrar under the Remuneration Tribunal determination in place prior to amalgamation,
until another determination comes into operation in substitution for it.
Amendments to Schedule 9 (Transitional and Saving provisions)
11
43. This amendment is broadly consistent with the equivalent transitional arrangements
for transferring members to the amalgamated AAT.
Amendment (21)--Other transitional matters
44. Amendment 21 would insert additional transitional and saving provisions after
Item 15 of Schedule 9 to the Bill:
Part 3--Review of decisions, comprising Items 15AA to 15AG
Part 4--Matters specific to particular Acts, comprising Items 15BA to 15BT
Part 5--Continuation of directions, comprising Items 15CA to 15CD, and
Part 6--Other transitional matters, comprising Items 15DA to 15DF.
Part 3--Review of Decisions
45. Items 15AA to 15AG in Part 3 would provide general rules for the continuation of
proceedings that have not been finalised at commencement day, including ensuring the
validity of things done prior to commencement day in relation to such proceedings.
Item 15AA--General provision--application of amendments from commencement day
46. Item 15AA would provide the general rule that, except where otherwise provided in
Schedule 9, the new law (the amendments made by the Bill) would apply from
commencement day onwards, including in relation to proceedings commenced before
commencement day and decisions made before commencement day. This approach is the
most administratively straightforward, as otherwise the amalgamated Tribunal and persons
involved in merits review would be required to apply different versions of the law depending
on when their proceeding was commenced. Departures from this general rule are provided
for in Schedule 9 where appropriate to preserve the rights of applicants or other persons
participating in merits review (see, for example, Item 15BF).
47. Item 15AA has the effect that from commencement day, the amalgamated AAT may
exercise any of the powers available to it under the Bill in relation to applications on foot.
The rights and obligations of individuals under the new law will also apply. For example,
from commencement day, a person who wishes to seek judicial review in relation to a
decision of the SSAT before commencement day in a child support matter will be required to
appeal to the Federal Court or the Federal Circuit Court under subsection 44(1) or new
section 44AAA of the AAT Act (Item 129 of Schedule 1 to the Bill). Appeals lodged prior to
commencement day with any court with jurisdiction under Division 3 of Part VIII of the
CSRC Act (which would be repealed by the Bill) would be preserved under paragraph 7(2)(e)
of the Acts Interpretation Act 1901.
48. To avoid retrospective penalties applying to persons, subitem 15AA(2) would
specifically provide that an amendment or insertion of an offence by the Bill would not apply
in relation to conduct engaged in before commencement day.
Item 15AB--General provision--continuation in AAT of proceedings before discontinued
Tribunals
49. Item 15AB would provide for the transfer of proceedings on foot in discontinued
Tribunals as at commencement day to the AAT and would preserve the validity of things
done (and require or permit the doing of things not yet done) in relation to those proceedings.
50. Pursuant to subitem 15AB(2), proceedings before the MRT or RRT would be
continued in the Migration and Refugee Division of the AAT. Proceedings before the SSAT
would be continued in the Social Services and Child Support Division of the AAT. Except
Amendments to Schedule 9 (Transitional and Saving provisions)
12
for proceedings that are not proceedings for review of a decision, those SSAT proceedings
would be taken to be applications for AAT first review within the meaning of the Act that
authorised the application. The consequences of designation as an AAT first review include
the application of certain procedural rules and in some cases the right to apply for AAT
second review following the decision on first review. Proceedings that are not proceedings
for review of a decision (for example, proceedings on an application for an extension of time,
or proceedings seeking reinstatement of a dismissed application) would not be taken to be
applications for AAT first review, since it is not appropriate that these consequences
automatically flow.
51. Subitem 15AB(3) would preserve the validity of things done by a discontinued
Tribunal or a member or officer of a discontinued Tribunal in relation to a proceeding on foot
before commencement day (including preserving the time the thing was done). From
commencement day, such things would be taken to be done, at the time they were done, by
the AAT or a member or officer of the AAT for the purposes of the continued proceeding.
52. Subitem 15AB(4) would preserve the validity of things done by an applicant, another
party or any other person for the purposes of a proceeding on foot in a discontinued Tribunal
before commencement day (including preserving the time the thing was done). From
commencement day, such things would be taken to have been done, at the time they were
done, by the person for the purposes of the continued proceeding before the AAT.
53. By providing for continuity of proceedings and actions taken in relation to
proceedings, the general rules in subitems 15AB(1)-(4) would minimise disruption to merits
review and inconvenience or uncertainty for persons involved in a proceeding before a
discontinued Tribunal. Subitems 15AB(5)-(8) are examples of specific applications of the
preceding general rules and are not intended to limit their interpretation.
54. Subitem 15AB(5) would provide that if, before commencement day, a discontinued
Tribunal or member or officer of a discontinued Tribunal had not yet met a requirement, or
responded to a request or invitation to do something, under an affected law in relation to a
proceeding, then the AAT or a member or officer of the AAT must meet the requirement or
may respond to the request or invitation in relation to the continued proceeding, except if the
law as amended by the Bill no longer imposes the requirement or issues the request or
invitation.
55. Subitem 15AB(6) would provide that if, before commencement day, a person had not
yet met a requirement, or responded to a request or invitation to do something, under an
affected law in relation to a proceeding in a discontinued Tribunal, then the person must meet
the requirement or may respond to the request or invitation in relation to the continued
proceeding, except if the law as amended by the Bill no longer imposes the requirement or
issues the request or invitation.
56. Subitems 15AB(7)-(8) concern the giving and receiving of notices or documents in
relation to proceedings in discontinued Tribunals. Certainty on these matters is important as
the receipt of valid notices can have significant consequences, including (for example) in
relation to timeframes for applying for second merits review or judicial review.
57. Subitem 15AB(7) would preserve the validity of notices and documents given to
persons prior to commencement day in relation to proceedings in a discontinued Tribunal. If
before commencement day, a discontinued Tribunal or a member or officer of a discontinued
Tribunal had met a requirement imposed by an affected law to give a notice or document to a
person, then from commencement day that requirement is taken to have been met by the AAT
Amendments to Schedule 9 (Transitional and Saving provisions)
13
or a member or officer of the AAT. The document or notice is taken to have been given at
the same time the requirement was met before commencement day.
58. Subitem 15AB(8) would provide that if, before commencement day, a person had
received a notice or document from a discontinued Tribunal or a member or officer of a
discontinued Tribunal, then from commencement day the person is taken to have received the
notice or document at the same time from the AAT or a member or officer of the AAT.
59. Subitem 15AB(9) would provide that Item 15AB only applies to the extent it is not
inconsistent with another item in Schedule 9 (other than Item 15AC). This is because
Item 15AB provides general rules which are subject to exceptions on specific matters dealt
with elsewhere in Schedule 9. Item 15AC would not override Item 15AB, because Item
15AC is also a general rule and it is intended to apply only where Item 15AB does not.
Item 15AC--General provision--operation of affected law in relation to things done etc,
before commencement day
60. Item 15AC would provide a catch-all rule to preserve the validity of things done
before commencement day. It would apply only to the extent to which Item 15AB (which is
more specific) would not apply (subitem 15AB(9)).
61. Subitem 15AC(1) would provide that from commencement day:
a reference to a decision that is reviewable by the AAT includes a reference to a
decision made before commencement day that was reviewable by a discontinued
Tribunal, and
a reference to a decision made or other thing done by or in relation to the AAT
includes a reference to a decision made or other thing done before commencement
day by or in relation to a discontinued Tribunal.
62. These rules would ensure that the new law (as amended by the Bill) will be read to
include things done prior to commencement day, which would preserve rights and obligations
that accrued in relation to discontinued Tribunals and facilitate the application of the new law
in respect of those rights and obligations.
63. Subitem 15AC(2) would clarify that subitem 15AC(1) is to be read broadly and its
application does not depend on the AAT being referred to expressly or by that exact
expression.
64. Subitem 15AC(3) would provide a specific example of the general rules in
subitem 15AC(1). It would preserve the right of a person to make an application to the AAT
after commencement day if that person had a right to apply for review of a decision by the
AAT or a discontinued Tribunal before commencement day. Subitem 15AC(3) is not
intended to limit the interpretation of subitem 15AC(1).
65. Subitem 15AC(4) would confirm, for the avoidance of doubt, that neither paragraph
15AC(1)(a) nor subitem 15AC(3) of itself would authorise the making of an application to
the AAT for review of a decision. In particular, these provisions would not authorise the
making of duplicate applications for review (for example, there would be no new right to
have an application that has already been finally determined by a discontinued Tribunal heard
by the AAT).
Item 15AD--Duplicate applications for review
66. Item 15AD would prevent the making of duplicate applications for merits review and
the making of applications for review out of time (where no time extension is permissible).
Amendments to Schedule 9 (Transitional and Saving provisions)
14
67. Subitem 15AD(1) concerns duplicate applications. It would provide that a person
may not make an application to the AAT for review of a decision on or after commencement
day if the person had made an application or a purported application to a discontinued
Tribunal for review of the decision before commencement day.
68. Subitem 15AD(2) concerns applications made out of time. It would provide that a
person may not make an application to the AAT for review of a decision on or after
commencement day if the time limit for applying for review (if any) has expired, and there is
no enactment that would permit the AAT to extend the time in which the person may apply
for review.
69. The purpose of Item 15AD is to ensure that the Bill does not introduce additional
rights to seek review that would not otherwise be available. It is not intended that any
existing rights to seek review are curtailed. In particular, subitem 15AD(3) would confirm
that Item 15AD does not prevent a person making an application for AAT second review at
the conclusion of a proceeding for AAT first review that is continued in the Social Services
and Child Support Division of the AAT by virtue of paragraph 15AB(2)(c).
Item 15AE--Notices referring to discontinued Tribunal
70. Item 15AE concerns notices given either before or after commencement day that
advise persons of their right to apply for review to a discontinued Tribunal, where the last day
for the person to apply is after commencement day or there is no time limit for applying.
71. Subitem 15AE(2) would ensure that such a notice is taken to meet any requirement
after commencement day that a person must be given notice of their right to apply for review
to the AAT.
Item 15AF--Continuation of Immigration Assessment Authority
72. Item 15AF would deal with the IAA. The Bill would have the effect that the IAA
would be established from commencement day within the AAT rather than the RRT.
Item 15AF would confirm that this would not affect the continued existence of the IAA after
commencement day, reviews being conducted by the IAA immediately before
commencement day, or the ongoing effect from commencement day of anything else done
before commencement day by or in relation to the IAA, its Principal Member or a reviewer.
Item 15AG--Remission of discontinued Tribunal decisions
73. Item 15AG would ensure that if, after commencement day, a court decides to remit
for reconsideration a decision of a discontinued Tribunal, the decision is to be remitted to the
AAT. This would provide certainty to the courts in light of the abolition of the MRT-RRT
and SSAT.
Part 4--Matters specific to particular Acts
74. Items 15BA to 15BT would provide for various matters specific to particular Acts.
Item 15BA--Relationship between this Part and Part 3
75. Item 15BA would provide that an item in Part 4 that has the same effect as an item in
Part 3 in relation to a matter does not limit the operation of the item in Part 3 in relation to
any other matter.
76. This Item clarifies the relationship between Part 3 and Part 4 by stipulating that the
items in Part 4 do not limit the operation of items in Part 3. This clarification is necessary
because the items in Part 3 provide for general rules and some of the items in Part 4 are, in
Amendments to Schedule 9 (Transitional and Saving provisions)
15
effect, examples of the operation of these rules. It is not intended that the examples in Part 4
should be read as narrowing or otherwise affecting the interpretation of the general rules in
Part 3.
Item 15BB--Continued protection of confidential information of discontinued Tribunals
77. Item 15BB would continue the operation of existing sections 377 and 439 of the
Migration Act and clause 19 of Schedule 3 to the SSA Act in relation to information or
documents obtained by a person prior to commencement day.
78. Sections 377 and 439 of the Migration Act have the effect that a person who has
obtained confidential information in the course of their duties at the MRT or RRT can only
make a record of or communicate that information for the purposes of the Migration Act or
for the purposes of their powers or duties under that Act. It is an offence to unlawfully
disclose such confidential information. Sections 377 and 439 further provide that persons to
whom those sections apply are not required to produce confidential information to a court (as
defined in those sections).
79. Clause 19 of Schedule 3 to the SSA Act has the effect that a person who has obtained
personal information in the course of their powers or duties at the SSAT under the social
security, family assistance or student assistance law can only make a record of or
communicate that information for the purposes of those laws or their powers or duties under
those laws. Clause 19 of Schedule 3 further provides that such persons are not required to
produce confidential information to a court (as defined in that clause).
80. The Bill would repeal sections 377 and 439 of the Migration Act and clause 19 of
Schedule 3 to the SSA Act, on the basis that these obligations are adequately covered by the
Privacy Act 1988 which will apply to the amalgamated Tribunal. For certainty and
continuity, Item 15BB would ensure that the protections in relation to confidential
information that currently apply in relation to the MRT-RRT and the SSAT continue in
relation to information obtained prior to 1 July 2015 despite the abolition of these tribunals.
Item 15BC--Changes to AAT Divisions
81. Item 15BC would ensure that:
a proceeding before the General Administrative Division of the AAT immediately
before commencement day is taken to be a proceeding before the General Division of
the AAT from commencement day
a proceeding before the Security Appeals Division of the AAT immediately before
commencement day is taken to be a proceeding before the Security Division of the
AAT from commencement day, and
a proceeding before the Taxation Appeals Division of the AAT (including that
Division when known as the Small Taxation Claims Tribunal) immediately before
commencement day is taken to be a proceeding before the Taxation and Commercial
Division of the AAT from commencement day.
82. This Item is necessary because Item 17A of the Bill would create the Divisions of the
amalgamated AAT, and it is intended that the work of the existing General Administrative
Division, Security Appeals Division and Taxation Appeals Division would be carried on by
the appropriate new Divisions.
Amendments to Schedule 9 (Transitional and Saving provisions)
16
Item 15BD--Small Taxation Claims Tribunal
83. Item 15BD would provide that paragraphs 24AD(2)(b) and (c) and
subsection 24AD(3) of the AAT Act continue to apply after commencement day in relation to
an application for review, where an order under subsection 24AD(1) is in force in relation to
the application prior to commencement day.
84. Subsection 24AD(1) of the AAT Act permits the Tribunal to order that an application
is not to be heard in the Small Taxation Claims Tribunal where the Tribunal considers that
the amount of tax in dispute is not less than $5,000. Where such an order is made, the
application is to be heard in the Taxation Appeals Division. Paragraphs 24AD(2)(b) and (c)
and subsection 24AD(3) of the AAT Act provide that the Tribunal must not proceed with,
and may dismiss (and reinstate if necessary), the application until the appropriate fee is paid.
85. Item 15BD would preserve these provisions in relation to proceedings before the
Small Taxation Claims Tribunal before 1 July 2015 in respect of which an order under
subsection 24AD(1) has been made. This is necessary since Item 27 of Schedule 1 to the Bill
would repeal Part IIIA of the AAT Act, and the Small Taxation Claims Tribunal would no
longer exist.
Item 15BE--Continuation of provisions regarding presiding members
86. Item 15BE would ensure that a person who is presiding in relation to a proceeding
before the AAT before commencement day because of paragraphs 21AB(9)(a), (b) and (c);
paragraphs 22(1)(a), (aa) or (b); or subparagraph 22(1)(c)(i) of the AAT Act would continue
to preside in relation to the proceeding after commencement day.
87. Subsection 21AB(9) and section 22 of the AAT Act provide rules to determine which
member shall preside at a hearing where more than one member constitutes the Tribunal.
Paragraphs 21AB(9)(a), (b) and (c); paragraphs 22(1)(a), (aa) or (b); and
subparagraph 22(1)(c)(i) determine who is to preside based on the seniority of the members
involved, and without requiring a direction from the President. Item 27 of the Bill would
repeal subsection 21AB(9) and section 22 and replace them with new section 19A, a
simplified provision which would permit the President to give written directions in relation to
who is to preside.
88. Item 15BE would ensure that the President need not make directions under the new
section 19A in relation to proceedings where the Tribunal has been constituted as a
multi-member tribunal prior to commencement day on the basis of the old provisions.
Item 15BF--Limit on new AAT powers in relation to agreements
89. Item 15BF would provide that subsections 34D(4) and 42C(5) of the AAT Act as
amended by the Bill do not apply to decisions made by the AAT before commencement day.
These subsections would provide new powers to the Tribunal to vary or revoke a decision
that reflects the agreement of the parties, whether reached through an alternative dispute
resolution process or at any other stage of the proceeding, provided that the parties consent to
the variation or revocation.
90. Item 15BF reflects a departure from the general rule in Item 15AA that the
amendments apply in relation to decisions made before commencement day. This is
considered appropriate to promote finality and prevent the reopening of reviews that have
been resolved under the AAT Act prior to these new powers being conferred on the Tribunal.
Amendments to Schedule 9 (Transitional and Saving provisions)
17
Item 15BG--Notices and summonses under amended provisions of AAT Act
91. Item 15BG would preserve the validity of notices, certain orders and summonses
issued by the AAT before commencement day.
92. Subitem 15BG(1) would deal with notices given to decision-makers to inform them of
applications for review. It would provide that where the AAT has given such a notice under
subsection 29(11) of the AAT Act before commencement day, the notice is taken to have
been given, at the time it was given, under new section 29AC of the AAT Act (as inserted by
Item 51 of Schedule 1 to the Bill).
93. Subitem 15BG(2) would deal with orders to decision makers to lodge an additional
statement containing further and better particulars in relation to their decision and reasons. It
would provide that where the AAT has made such an order under section 38 of the AAT Act
before commencement day, and the time specified in the order for lodging the additional
statement has not ended before commencement day, the order will continue in effect after
commencement day, and is taken to be an order under new section 38 (as amended by
Item 87 of Schedule 1 to the Bill).
94. Subitem 15BG(3) would deal with summonses issued under subsection 40(1A) of the
AAT Act. It would provide that where the AAT has issued a summons before
commencement day, and compliance with the summons will fall due after commencement
day, the summons will continue in effect after commencement day and is taken to be a
summons under new section 40A of the AAT Act (as inserted by Item 103 of Schedule 1 to
the Bill).
95. As a consequence of subitem 15BG(3), amended section 61 of the AAT Act (the
offence of failure to comply with a summons) would apply in relation to summonses issued
before commencement day, provided that the conduct that constituted a breach of the
summons occurred after that date (see subitem 15AA(2)). This approach is simpler than
preserving summonses under the old provisions and will not disadvantage persons to whom
summonses are issued. Most summonses in the AAT are directed to entities that have
established mechanisms for managing them, including negotiating suitable timeframes for
compliance.
96. The validity of summons-type orders issued by the discontinued Tribunals prior to
commencement day would be preserved under Item 15CD.
Item 15BI--Ongoing requirement for lodging material documents with AAT
97. Item 15BI would provide that new section 38AA of the AAT Act (inserted by Item 87
of Schedule 1 to the Bill) would apply in relation to documents obtained by a person on or
after commencement day. Section 38AA would impose an obligation on administrative
decision makers whose decisions are the subject of an application for review by the Tribunal
(including second review) to lodge with the Tribunal a copy of any document that comes into
their possession that is relevant to the review and has not been lodged previously. The
obligation is ongoing until the Tribunal determines the review.
98. Subitem 15BI(2) would provide that section 38AA would apply in relation to
documents obtained by a person before commencement day if immediately before
commencement day that person was subject to a requirement to give documents to the SSAT,
that requirement had not been met and (pursuant to Item 15AB) is continued in relation to a
proceeding continued in the AAT. The purpose of subitem 15BI is to continue the obligation
on decision makers in subsections 157(5) of the SSA Act, 95(5) of the CSRC Act, 119(5) of
the FAA Act and 232(5) of the PPL Act, which would be repealed by the Bill.
Amendments to Schedule 9 (Transitional and Saving provisions)
18
Item 15BJ--Application for reinstatement
99. Item 15BJ would have the effect that the amendments to section 42A of the AAT Act
in relation to the reinstatement of an application would apply regardless of when the
application was dismissed. These amendments (Items 114 and 115 of Schedule 1 to the Bill)
would have the effect that any person who was a party to a proceeding that has been
dismissed may apply for reinstatement, and that the Tribunal can extend time for making an
application for reinstatement beyond the 28 day rule currently in subsection 42A(8) of the
AAT Act.
100. The approach in Item 15BJ is the most beneficial for parties. Whether or not such an
application would be successful would depend on the merits of the application and the
reasons for the delay in seeking reinstatement.
Item 15BK--Changes to penalties in the AAT Act
101. Item 15BK would provide that the offence provisions in the AAT Act--sections 61,
62, 62A, 62B and 63--as in force before commencement day would continue to apply after
commencement day in relation to conduct engaged in before commencement day. This
would avoid the retrospective application of the new or amended offence provisions in the
Bill.
Item 15BL - Section 67 of the AAT Act
102. Item 15BL would provide that regulations made before commencement day for the
purposes of section 67 of the AAT Act would continue in force after commencement day in
relation to summonses issued before commencement day. Section 67 authorises the making
of regulations dealing with fees and entitlements to be paid to witnesses for complying with a
summons. Item 15BL would accordingly preserve the rights of such witnesses under the
rules in place at the time the summons was issued.
Item 15BM--Character of privative clause and other decisions under the Migration Act 1958
103. Item 15BM would provide that decisions made prior to commencement day that fall
within the scope of the statutory definitions for privative clause decisions, purported privative
clause decisions or non-privative clause decisions continue to be within the scope of those
definitions, and that the consequences of falling within those definitions will also continue.
104. The purpose of Item 15BM is to confirm that the amendments proposed by the Bill to
the Migration Act would not alter the character of decisions that have already been made and
to ensure that the litigation-related provisions in Parts 8, 8A and 8B of the Migration Act that
apply to those types of decisions would continue to apply. Item 15BM is also intended to
clarify that the changes to the list of non-privative clause decisions in subsection 474(4) of
the Migration Act do not change judicial review rights for decisions made before
commencement day.
Item 15BN--Sections 351 and 417 of the Migration Act 1958
105. Item 15BN would provide that the Minister for Immigration and Border Protection
can exercise the powers in sections 351 and 417 of the Migration Act after commencement
day in relation to decisions of a discontinued Tribunal before commencement day. The
purpose of this Item is to clarify that the Minister can substitute a decision by a discontinued
Tribunal for one that is more favourable to the applicant, where the Minister considers that it
is in the public interest to do so.
Amendments to Schedule 9 (Transitional and Saving provisions)
19
Item 15BO--Sections 477, 477A and 486A of the Migration Act 1958
106. Item 15BO would provide that if a particular date is taken to be the date a decision is
made prior to commencement day under the existing definition of date of a migration
decision in subsection 477(3) of the Migration Act, that date will continue to be taken to be
the date of the decision after commencement day.
107. The purpose of this Item is to ensure that the date a decision by a discontinued
Tribunal is taken to have been made will continue to be the same as it would otherwise have
been, so that the time limits on applications for judicial review will not be affected by the
Bill.
Item 15BP--Section 486D of the Migration Act 1958
108. Item 15BP would clarify that references to a tribunal decision in section 486D of the
Migration Act include references to a decision made before commencement day by the MRT,
the RRT or the IAA as established within the RRT. The purpose of this Item is to ensure that
the requirement for applicants seeking judicial review of a tribunal decision to disclose any
previous litigation about that decision would continue to operate in relation to such a
decision.
Item 15BQ--Continuation of payment declarations
109. Item 15BQ would preserve the validity of declarations made prior to commencement
day under section 112 of the FAA Act, section 145 of the SSA Act or section 314 of the
SA Act, with the effect that persons entitled to receive payment pending the outcome of their
application for review to the SSAT will remain so entitled when their application is continued
in the AAT from commencement day and until it is finally determined.
Item 15BR--Review by AAT of SSAT decisions
110. Item 15BR would provide transitional arrangements in relation to review by the AAT
of decisions of the SSAT made before commencement day.
111. Subitem 15BR(1) would ensure that an application to the AAT after commencement
day for review of a decision of the SSAT made before commencement day is taken to be an
application for AAT second review within the meaning of the Act that authorised the making
of the application, and is taken to be an application for second review within the meaning of
the AAT Act.
112. Subitem 15BR(2) would ensure that a proceeding before the AAT at commencement
day for review of a decision of the SSAT is taken to be an application for AAT second review
within the meaning of the Act that authorised the making of the application, and is taken to be
an application for second review within the meaning of the AAT Act.
113. In both cases the amendments made by the Bill would apply to the proceeding from
commencement day. The terms `AAT second review' and `second review' facilitate the
preservation of a two-tiered external merits review process within the amalgamated Tribunal.
Item 15BS--Subsection 109D(6) of the A New Tax System (Family Assistance)
(Administration) Act 1999
114. Item 15BS would provide that a decision that before commencement day is an
excepted decision within the meaning of subsection 109D(6) of the FAA Act continues to be
an excepted decision after commencement day. This would preserve the status quo that
Amendments to Schedule 9 (Transitional and Saving provisions)
20
certain decisions are not subject to the time limits for applying for review pursuant to
subsection 109D.
Item 15BT--Saving provision for regulations under section 103T of the Child Support
(Registration and Collection) Act 1988
115. Item 15BT would preserve the validity of regulations in force under section 103T of
the CSRC Act before commencement day, which prescribe certain powers of the Child
Support Registrar that the SSAT in the review of an application may not exercise. Item 15BT
would have the effect that a provision prescribed under section 103T is taken to be prescribed
under new section 95E of the CSRC Act (which replaces section 103T), until such time as the
regulations are amended or repealed. As a result, the amalgamated AAT would be subject to
the same limitations that currently apply to the SSAT.
Part 5--Continuation of directions
116. Items 15CA to 15CD in Part 5 would preserve the validity of various types of
directions issued prior to commencement day in relation to proceedings in the AAT and in
the discontinued Tribunals.
Item 15CA--Continuation of AAT directions
117. Item 15CA would preserve directions made by the President of the AAT prior to
commencement. This is necessary because the existing provisions of the AAT Act that
empower the President to make directions would be replaced by new provisions (Item 27 of
Schedule 1 to the Bill).
118. Subitem 15CA(1) would provide that directions issued by the AAT President under
section 20 (directions generally) or section 34C (directions in relation to alternative dispute
resolution) that are in effect before commencement day would continue to apply from
commencement day, as if they were issued under new section 18B of the AAT Act or, to the
extent that the direction concerns who may conduct alternative dispute resolution, under
subsection 34A(2) of the AAT Act. However, these directions would not apply to the
Migration and Refugee Division and the Social Services and Child Support Division. This is
because Items 15CB to 15CD would preserve the validity of directions made in relation to
proceedings in discontinued Tribunals, and these directions would apply to proceedings
continued in the Migration and Refugee Division and the Social Services and Child Support
Division of the amalgamated AAT.
119. Subitems 15CA(2) and (3) would provide that any directions about constitution and
reconstitution of the Tribunal issued by the President of the AAT under the current provisions
of the AAT Act and in effect before commencement day would continue to apply from
commencement day, as if they were issued under new section 19A or 19C of the AAT Act (as
appropriate). This would ensure that proceedings continued after commencement day would
be heard by the same member or members.
120. Subitem 15CA(4) would apply to any other orders or directions given either by the
AAT or the President of the AAT for the purposes of a proceeding that are in effect prior to
commencement day. It would provide that such orders or directions continue in effect from
commencement day as if they were given under the provisions of the AAT Act (as amended)
that would authorise their making. The preservation of such orders or directions would
minimise disruption to the conduct of proceedings and provide certainty for the parties.
Amendments to Schedule 9 (Transitional and Saving provisions)
21
Item 15CB--Continuation of Principal Member directions constituting a discontinued
Tribunal
121. Item 15CB would preserve directions made by the Principal Member of a
discontinued Tribunal that were in effect prior to commencement day and either constituted
the Tribunal for the purposes of a proceeding or specified the presiding member in relation to
a proceeding. Such directions would continue in effect for the purposes of the proceeding as
continued in the AAT (by Item 15AB), as if they were made by the President of the AAT
under new section 19A of the AAT Act. References in the directions to the discontinued
Tribunal would be taken to be references to the Migration and Refugee Division or the Social
Services and Child Support Division, as appropriate. In effect, Item 15CB would ensure that
proceedings continued after commencement day in those Divisions would be heard by the
same member or members.
Item 15CC--Continuation of discontinued Tribunal practice directions
122. Item 15CC would preserve any other directions given by the Principal Member of a
discontinued Tribunal that are not covered by Item 15CB and that are in effect prior to
commencement day. Item 15CC would apply to directions of general application (for
example, practice directions) rather than directions in relation to specific proceedings.
123. Pursuant to subitem 15CC(2), such directions would continue in effect after
commencement day in relation to proceedings continued in the AAT (by virtue of
Item 15AB), as if:
the direction were given by the President of the AAT under section 18B of the
AAT Act (as amended by the Bill), and
references to the discontinued Tribunal are taken to be references to the Migration and
Refugee Division, or the Social Services and Child Support Division, as appropriate,
of the amalgamated AAT.
124. The preservation of directions under Item 15CC would minimise disruption to the
conduct of proceedings and provide certainty for the parties.
Item 15CD--Continuation of other discontinued Tribunal directions or orders
125. Item 15CD would preserve any other directions or orders given by a discontinued
Tribunal or the Principal Member of a discontinued Tribunal that are not covered by
Items 15CB or 15CC and that are in effect prior to commencement day. This would include
directions in relation to specific proceedings (for example, non-disclosure orders).
126. Pursuant to subitem 15CD(2), such directions or orders would continue in effect after
commencement day in relation to proceedings continued in the AAT (by virtue of
Item 15AB), as if they had been given by the AAT or the President of the AAT under a
provision of an affected law that authorises their giving.
127. The preservation of directions under Item 15CD would minimise disruption to the
conduct of proceedings and provide certainty for the parties.
Part 6--Other transitional matters
128. Items 15DA to 15DF in Part 6 would deal with other miscellaneous transitional
matters.
Amendments to Schedule 9 (Transitional and Saving provisions)
22
Item 15DA--References in instruments to discontinued Tribunal
129. Item 15DA would provide transitional arrangements to facilitate the ongoing
applicability of any instruments in force prior to commencement day that refer to a
discontinued Tribunal or the Principal Member of a discontinued Tribunal. It would have the
effect that such instruments are to be read after commencement day as if those references are
to the AAT or the President of the AAT, respectively. This would not prevent such
instruments being varied after commencement day.
130. Subitem 15DA(4) would provide that the instruments covered include Minister's
Directions made under section 499 of the Migration Act. Instruments of delegation or
authorisation would also be included. These examples are not exhaustive.
131. Subitem 15DA(5) would provide that Acts, regulations made under the Bill (once in
force) or the AAT Act, contracts of employment and enterprise agreements are not
`instruments' for the purposes of this Item. The exclusion of Acts and certain regulations is
necessary because references in those contexts to the discontinued Tribunals are intended to
be read as such. The exclusion of employment contracts and enterprise agreements is
necessary so as not to interfere with the rights and obligations therein, which are not
transferable to the AAT.
Item 15DB--Transfer of records and documents
132. Item 15DB would provide that any records or documents that were in possession of a
discontinued Tribunal prior to commencement day are taken to be transferred to the AAT
from commencement day. This would provide certainty around possession of documents
following the amalgamation. The note to Item 15DB would clarify that the records and
documents are Commonwealth records for the purposes of the Archives Act 1983.
Item 15DC--Registries
133. Item 15DC would provide for continuity of registries of the amalgamated Tribunal.
Subitem 15DC(1) would provide that any places that are registries of a discontinued Tribunal
immediately before commencement are taken to be established as registries under section 64
of the AAT Act (as amended by the Bill) from commencement.
134. Subitem 15DC(2) would clarify that this does not prevent the Minister from varying
the registries of the AAT on or after commencement day.
135. Item 15DC is intended to provide certainty for users of the Tribunal and to ensure the
validity of any documents that are required to refer to registries of the discontinued Tribunals
(for example, notices given to persons in relation to their review rights).
Item 15DD--Additional material for next AAT reports
136. Item 15DD would ensure that statutory reporting obligations are met in relation to the
discontinued Tribunals for the period ending immediately before commencement day.
137. Subitem 15DD(1) would require that the statements and reports given for the AAT
under sections 42 or 46 of the PGPA Act for the reporting period ending immediately before
commencement must include the statements and reports that would have been required for
the MRT and RRT in relation to the reporting period. The exclusion of the SSAT is
appropriate because it is not a separate statutory agency and therefore does not directly bear
reporting obligations under the PGPA Act. The note to subitem 15DD(1) would explain that
the Department of Social Services (as the accountable authority under the PGPA Act for the
Amendments to Schedule 9 (Transitional and Saving provisions)
23
SSAT) would include information in relation to the SSAT in its statements and reports for the
relevant period.
138. Subitem 15DD(2) would require the President of the AAT to include information
about the discontinued Tribunals in a report prepared under section 24R of the AAT Act for
the year ending immediately before commencement. The purpose of this provision is to
require the AAT to prepare annual reports for the MRT-RRT and the SSAT in relation to
their final year of existence. These reports would be tabled in Parliament along with that of
the AAT for the relevant period. This will provide transparency and accountability in
relation to the operations of the discontinued Tribunals for the year immediately before
commencement. The information about the SSAT would include the information normally
provided as part of its report under clause 25 of Schedule 3 to the SSA Act.
139. For completeness, it is noted that while Item 15DD deals with additional material in
AAT reports, the AAT would remain bound by its own reporting obligations under the
PGPA Act.
Item 15DE--Existing and new modifications of AAT Act
140. Item 15DE is intended to clarify the interaction between the AAT Act and other Acts,
especially in light of the doctrine of implied repeal, which would normally dictate that a later
statutory provision prevails over an earlier statutory provision to the extent of any
inconsistency.
141. Subitem 15DE(1) concerns the interaction between the AAT Act and other
enactments that would not be amended by the Bill. The term `enactment' is defined broadly
in section 3 of the AAT Act and includes, for example, regulations. Subitem 15DE(1) would
clarify that where an enactment before commencement day has the effect of adding to,
excluding or modifying the operation of the AAT Act, it continues to have that effect after
commencement day, notwithstanding that the AAT Act will have been amended. That is,
existing modifications of the AAT Act continue in force and are not displaced by any
changes to the AAT Act provisions that they modify. This rule is important because existing
modifications to the AAT Act are designed to apply specific procedural regimes to particular
types of applications, and the Bill is not intended to interfere with those regimes.
142. Subitem 15DE(2) concerns the interaction between the AAT Act and other Acts that
would be amended by the Bill. It would clarify, in case there were any doubt, that a
provision of an Act that appears to have the effect of adding to, excluding or modifying the
operation of the AAT Act does have that effect. That is, although the AAT Act is amended
simultaneously with other Acts, other Acts will prevail to the extent of any inconsistencies.
This rule would permit specific procedural regimes to be established for some types of
applications (for example, applications to be heard in the Migration and Refugee Division),
while at the same time bringing these applications within the AAT. This is consistent with
the general approach identified in subitem 15DE(1) that the AAT Act may be modified by
other enactments.
Item 15DF--Section 7 of the Acts Interpretation Act 1901
143. Item 15DF would clarify that the general rules in section 7 of the Acts Interpretation
Act 1901 would apply in relation to the amendments and repeals effected by the Bill (once in
force) to the extent that Schedule 9 or regulations do not provide otherwise in relation to
specific matters. Section 7 provides certainty around certain aspects of the amendment and
repeal of laws, which may assist in determining rights and obligations after the
amalgamation. For example, paragraph 7(1)(e) would operate to ensure that the immunities
Amendments to Schedule 9 (Transitional and Saving provisions)
24
currently conferred on members, witnesses and persons appearing before a discontinued
Tribunal would continue from commencement day in relation to actions prior to
commencement day, notwithstanding that the provisions conferring those immunities would
be repealed by the Bill.
Amendments to Schedule 9 (Transitional and Saving provisions)
25
GLOSSARY
The following terms are used throughout this Explanatory Memorandum:
AAT Administrative Appeals Tribunal
AAT Act Administrative Appeals Tribunal Act 1975
CSRC Act Child Support (Registration and Collection) Act 1988
FAA Act A New Tax System (Family Assistance) (Administration) Act 1999
IAA Immigration Assessment Authority
Migration Act Migration Act 1958
MRT Migration Review Tribunal
PGPA Act Public Governance, Performance and Accountability Act 2013
PPL Act Paid Parental Leave Act 2010
RRT Refugee Review Tribunal
SA Act Student Assistance Act 1973
SSA Act Social Security (Administration) Act 1999
SSAT Social Security Appeals Tribunal
Glossary
26
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