Administrative Review Tribunal (Consequential and Transitional Provisions No 2) Bill 2024 - New and Ongoing Matters [2024] AUPJCHR 9 (20 March 2024)

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Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Bill 2024^[9]

Purpose	This bill seeks to make consequential amendments to 110 Commonwealth Acts that interact with the Administrative Appeals Tribunal Act 1975. It would also amend the Criminal Code Act 1995 to remove administrative review of preventative detention order decisions.
Portfolio	Attorney-General
Introduced	House of Representatives, 7 February 2024
Rights	Effective remedy

1.2 This bill seeks to remove administrative review of decisions to make, extend or further extend preventative detention orders. By way of background, a preventative detention order is an order that the person specified be taken into custody and detained for up to a maximum total period of 48 hours.^[10] The purpose of a preventative detention order is to prevent a terrorist act that is capable of being carried out, and could occur, within the next 14 days from occurring or to preserve evidence of, or relating to, a recent terrorist act.^[11] To make an order, the issuing authority (a senior Australian Federal Police (AFP) member or judge) must be satisfied of various matters, including that there are reasonable grounds to suspect the person will engage in a terrorist act or is preparing for or planning a terrorist act; an order would substantially assist in preventing the terrorist act; and the order is reasonably necessary.^[12] The Parliamentary Joint Committee on Human Rights has considered the human rights compatibility of the preventative detention order regime on a number of occasions.^[13] The committee has consistently raised concerns that preventative detention orders are likely to be incompatible with a range of human rights and questioned the necessity of such orders given they have never been used since their introduction.^[14]

1.3 This bill would repeal subsections 105.51(5)–(9) of the Criminal Code Act 1995 (Criminal Code), which provide that an application may be made to the Administrative Appeals Tribunal (AAT) for review of a decision to make, extend or further extend a preventative detention order. Under the current law, the AAT can declare the decision void (if the Tribunal would have set the decision aside if an application for review of the decision had been able to be made while the order was in force) and award compensation to the applicant. By repealing these subsections of the Criminal Code, a person would only be able to apply to a court (and not the tribunal) for a remedy in relation to a preventative detention order or the treatment of a person in connection with their detention under that order.^[15] An application may only be made once the order is no longer in force.^[16]

1.4 Additionally, the bill seeks to make consequential amendments to the Administrative Review Tribunal Bill 2024 to remove references to preventative detention order decisions.^[17] In effect, the new Administrative Review Tribunal, which seeks to replace the AAT, would not have jurisdiction to review preventative detention order decisions.

1.5 As the committee has previously found, preventative detention orders are likely to be incompatible with a range of human rights. In particular, a preventative detention order may violate a person’s right to liberty, which prohibits the arbitrary and unlawful deprivation of liberty.^[18] The UN Human Rights Committee has stated that security detention, that is detention not in contemplation of prosecution on a criminal charge, 'presents severe risks of arbitrary deprivation of liberty'.^[19] If a preventative detention order violated a person’s right to liberty, they have a right to an effective remedy with respect to that violation.^[20] This includes the right to have such a remedy determined by competent judicial, administrative or legislative authorities or by any other competent authority provided for by the legal system of the state. While limitations may be placed in particular circumstances on the nature of the remedy provided (judicial or otherwise), states must comply with the fundamental obligation to provide a remedy that is effective.^[21]

1.6 Removing administrative or merits review of preventative detention order decisions may have implications for the right to an effective remedy. This is acknowledged in the statement of compatibility.^[22] This states, however, that the impact on the right will be minimal as the remedies currently available to an affected individual through administrative review are also available through judicial review, which is provided for in sections 105.51 and 105.52 of the Criminal Code as well as section 39B of the Judiciary Act 2093 and section 75(v) of the Constitution.^[23] The explanatory memorandum states that providing for only judicial review is appropriate and reflects the seriousness and extraordinary nature of preventative detention order decisions, and the courts’ expertise in handling such matters.^[24] As to the reasons for the measure, the statement of compatibility notes that the powers to void an order and order compensation are not typically a function of an administrative tribunal and the amendments would result in these powers being vested exclusively in the courts.^[25] In doing so, the measure would address the risk that the relevant subsections of the Criminal Code could be construed as vesting federal judicial power in a body other than a court, contrary to Chapter III of the Constitution.^[26]

1.7 While judicial review remains available, the key question is whether this would be an effective remedy in practice.^[27] Judicial review in Australia represents a limited form of review in that it allows a court to consider only whether the decision was lawful (that is, within the power of the relevant decision maker). The court cannot undertake a full review of the facts (that is, the merits), as well as the law and policy aspects of the original decision to determine whether the decision is the correct or preferable decision. In contrast, a tribunal could set aside or declare void a decision if it was not the correct or preferable one. Additionally, compensation is not an available remedy in judicial review proceedings. A person may seek compensation in proceedings for an alleged tortious act (such as false imprisonment), but such proceedings would be more costly and less timely than merits review and would place a plaintiff at risk of a costs order being made against them. These access to justice concerns may, in practice, undermine the effectiveness of the remedies available through the courts. Whether judicial review alone will be sufficient for the purposes of the right to an effective remedy will ultimately depend on the circumstances in each case.

1.8 While noting the importance of measures intended to prevent terrorist attacks, the committee notes it has previously raised concerns regarding preventative detention orders. The committee considers that given these human rights concerns, any reduction in the availability of possible remedies requires careful consideration. The committee notes that while judicial review remains available, merits review is not. Judicial review represents a more limited form of review in that it allows a court to consider only whether the decision was lawful, not whether the decision was the correct or preferable decision. The committee also notes that compensation is not an available remedy in judicial review proceedings, although compensation may be sought in proceedings for an alleged tortious act, such as false imprisonment. The committee notes that such proceedings, however, are more costly and less timely. These access to justice challenges may, in practice, undermine the effectiveness of remedies available through the courts. The committee considers that the sufficiency of judicial review for the purposes of the right to an effective remedy will ultimately depend on the circumstances of the case.

1.9 The committee draws these human rights concerns to the attention of the Attorney-General and the Parliament.

^[9] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Bill 2024, Report 2 of 2024; [2024] AUPJCHR 9.

^[10] Criminal Code Act 1995, sections 105.8–105.14. An initial preventative detention order may be made by a senior AFP member for a maximum period of 24 hours but this period may be extended for an additional 24 hours if a continued preventative detention order is made by a judge or retired judge.

^[17] The Parliamentary Joint Committee on Human Rights commented on the Administrative Review Tribunal Bill 2024 and Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2024 in Report 1 of 2024 (7 February 2024) pp. 15–42.

^[19] UN Human Rights Committee, General Comment 35: Liberty and security of person (2014) [15].

^[20] International Covenant on Civil and Political Rights, article 2(3). See, Kazantzis v Cyprus, UN Human Rights Committee Communication No. 972/01 (2003) and Faure v Australia, UN Human Rights Committee Communication No. 1036/01 (2005): States parties must not only provide remedies for violations of the ICCPR, but must also provide forums in which a person can pursue arguable if unsuccessful claims of violations of the ICCPR. Per C v Australia, UN Human Rights Committee Communication No. 900/99 (2002), remedies sufficient for the purposes of article 5(2)(b) of the ICCPR must have a binding obligatory effect.

^[21] See UN Human Rights Committee, General Comment 29: States of Emergency (Article 4) (2001) [14].

^[27] It is noted that in other contexts, such as non-refoulement decisions, international human rights law jurisprudence has found the availability of judicial review alone (without consideration of the merits) to be insufficient for the purposes of ensuring persons have access to an effective remedy. See Singh v Canada, UN Committee against Torture Communication No.319/2007 (2011) [8.8]–[8.9]; Agiza v Sweden, UN Committee against Torture Communication No.233/2003 (2005) [13.7]; Josu Arkauz Arana v France, UN Committee against Torture Communication No.63/1997 (2000); Alzery v Sweden, UN Human Rights Committee Communication No.1416/2005 (2006) [11.8].

Australian Parliamentary Joint Committee on Human Rights

Administrative Review Tribunal (Consequential and Transitional Provisions No 2) Bill 2024 - New and Ongoing Matters [2024] AUPJCHR 9 (20 March 2024)