Administrative Review Tribunal Bill 2023 - Initial Scrutiny [2024] AUSStaCSBSD 19 (7 February 2024)

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Purpose	The Administrative Review Tribunal Bill 2023 seeks to establish a new, fit-for-purpose, federal administrative review body, to be named the Administrative Review Tribunal, which will replace the Administrative Appeals Tribunal.
Portfolio	Attorney-General
Introduced	House of Representatives on 7 December 2023
Bill status	Before the House of Representatives

Procedural fairness – public interest certificates
Limitation of appeal^[2]

1.2 Division 7 of Part 4 of the bill sets out the Administrative Review Tribunal’s (the Tribunal) public interest certificate and intervention provisions.

1.3 Clause 91 of the bill empowers the Attorney-General of either the Commonwealth or of a State or Territory (the Attorney-General) to prevent disclosure of information or documents for public interest reasons.

1.4 Subclauses 91(1) and (2) set out the following reasons for which the Attorney‑General may certify that the disclosure of specified information or the content of a specified document in a proceeding in the Tribunal would be contrary to the public interest:

1.5 The effect of clause 91, as set out in subclause 91(3), would be that a public interest certificate applies to the specified information or document preventing the Tribunal from disclosing it beyond a member, the Principal Registrar or a staff member of the Tribunal in the performance of their duties.

1.6 Subclause 91(6) provides that the Tribunal may decide to disclose information or documents to any or all parties to the proceedings if the certificate was given on the basis of paragraphs 91(1)(c) or (2)(b) (any other reason that could form the basis for a claim in a judicial proceeding that the information should not be disclosed). Subclause 91(7) requires the Tribunal to take into account as a primary consideration the principle that it is desirable, in the interest of ensuring the effective performance of the Tribunal’s functions, for the parties to the proceedings to be made aware of all relevant matters, and to have regard to any reason specified in the certificate.

1.7 Clause 92 empowers the Attorney-General to prevent a person from answering a question for public interest reasons. Subclause 92(1) provides that, if a person is asked a question while giving evidence at the hearing of a proceeding in the Tribunal, the Attorney-General may inform the Tribunal that, in their opinion, the answering of the question would be contrary to the public interest for a reason mention in subclauses 91(1) and (2). If the Attorney-General so informs the Tribunal, the person is excused from answering the question as per subclause 92(2).

1.8 Subclause 92(3) sets out exceptions to subclause 92(1) which provide the Tribunal with discretion to determine whether a person must answer a question. Paragraph 92(3)(a) provides that, where a public interest exemption was claimed by the Attorney-General on the basis of paragraphs 91(1)(c) or (2)(b) (any other reason that could form the basis for a claim in a judicial proceeding that the information should not be disclosed), the Tribunal may decide that the answering of the question would not be contrary to the public interest.

1.9 Clause 94 applies in proceedings in which the Attorney-General has sought to have information, documents, or an answer from a person prevented from being supplied on public interest grounds, and the Tribunal has decided that the information, document or answer should be provided. Under subclause 94(3) the Tribunal is required to give each party to the primary proceeding a statement of reasons for the decision. The Attorney-General would also be a party to the proceedings under clause 93.

1.10 Clause 189 relates to documents sent to the Federal Court under Division 6 of Part 7 of the bill^[3] which are subject to a public interest certificate.^[4] Subclause 189(2) provides that in these circumstances the Federal Court must do all things necessary to ensure that the matter is not disclosed to any person other than a member of the court as constituted for the appeal or reference. Subclause 189(3) provides that the court may decide that a matter should be disclosed to some or all of the parties to the proceedings and therefore must permit the parties to inspect the relevant part of the document if it is covered by a certificate granted only on the basis of any other reason that could form the basis for a claim in a judicial proceeding that the information should not be disclosed, and not for any other reasons as set out in the relevant clauses.^[5]

1.11 The committee has several scrutiny concerns in relation to the above clauses, which are modelled on existing provisions in the Administrative Appeals Tribunal Act 1975 (the AAT Act). While the explanatory memorandum addresses the operation of these clauses, the committee does not consider that it provides sufficient justification for the scope of their operation given the significant impact they may have on an individual’s procedural fairness right to have access to all information relevant to the proceedings.

1.12 First, in the committee’s view, the public interest certificate regime may effectively prevent an individual from being able to meet a case that is put against them as they would not be privy to all the relevant evidence or information. While it is generally accepted that unambiguously clear legislation can abrogate common law principles of procedural fairness, such an abrogation should be well justified in any accompanying explanatory memoranda.^[6] The committee is of the view that the explanatory memorandum does not adequately justify the extent of the abrogation of procedural fairness in this context. In addition, the committee notes that clause 9 sets out the objectives of the bill to include providing independent merits review that is ‘fair and just’, and queries how the clear abrogation of procedural fairness in this context supports these objectives. Again, this issue is not substantively addressed in the explanatory memorandum.

1.13 Secondly, the committee acknowledges that fairness may be legitimately adjusted in the context of countervailing public interests. However, this approach may be preserved whilst adopting a less rigid and more flexible drafting approach. Such an approach would afford the Tribunal more discretion to consider the evidence, document, or answer to a question, and assess on a case-by-case basis whether the public interest in preventing the information from being disclosed outweighs an applicant’s procedural fairness rights.

1.14 As currently drafted, the Tribunal is extremely limited in its ability to exercise this discretion, given that it is only authorised to do so in relation to information that was certified as against the public interest on the grounds of ‘any other reason that could form the basis for a claim in a judicial proceeding that the information should not be disclosed’. This approach does not allow the Tribunal to consider the particular sensitivities of each case and determine whether disclosure (or at least partial disclosure) may be warranted, regardless of why the certificate was issued. In this regard, the explanatory memorandum has not sufficiently justified why the approach taken is appropriate.

1.15 Thirdly, the committee notes that the statement of compatibility to the bill states that ‘The Bill also provides for parties to seek review of decisions on public interest certificates in the FCA’.^[7] However, it appears to the committee that it would be nearly impossible for public interest certificates to be successfully challenged by way of judicial review, and that it would be difficult for an applicant merely to make a submission to that effect.^[8] This is because the question for the court would not be the merits of the public interest in non-disclosure but the much narrower question of whether the certificate was invalid on account of a jurisdictional error.

1.16 Fourthly, in relation to clause 189, the committee notes the case of SDCV v Director‑General of Security, in which the constitutional validity of the equivalent provision in the AAT Act was upheld by a narrow majority.^[9] It was emphasised in the dissenting judgments of Justices Gageler, Gordon and Edelman in that case that, as a result of the equivalent AAT Act provision, it was possible for a court to decide that a person was lawfully stripped of a statutory right (in that case to be lawfully stripped of a permanent right to remain in Australia) for reasons which have never been given to the applicant or their counsel.

1.17 Noting this, in relation to clause 189, the committee is concerned, from a scrutiny perspective, with the fairness of the provision, given the inherent procedural unfairness that arises when courts rely on secret evidence. Further, the committee considers, again, that the explanatory memorandum does not provide sufficient information upon which to assess whether these measures are appropriate. The committee queries how clause 189 meets the objectives of the bill in providing fairness for applicants given that evidence against their case will not be put to them, particularly noting the absence of judicial discretion to consider the strength of the relevant public interest claim and the lack of any other safeguards (such as a special advocate regime) to ameliorate the inherent unfairness of such a provision.

1.18 Finally, the committee notes that it has not generally considered that consistency with existing provisions in legislation is, of itself, sufficient justification for provisions that limit the availability or adequacy of review of decisions that will affect a person’s rights and liberties, such as provisions that may impact whether a person would receive a fair hearing. The committee considers the introduction of legislation that entirely remakes a federal administrative review body to provide a suitable opportunity for policy-makers to reconsider the procedural fairness implications of existing measures.

1.19 In light of the above, the committee requests that the Attorney-General provide a comprehensive justification for the rigid approach adopted for public interest certificates, including:

Procedural fairness – intelligence and security jurisdiction^[10]

1.20 Part 6 of the bill sets out requirements for proceedings that take place in the intelligence and security jurisdictional area of the Tribunal.^[11]

1.21 Subclause 136(2) provides that Division 3 of Part 10 of the bill, relating to decision-makers providing reasons for decisions, does not apply to intelligence and security decisions.^[12] This has the effect that applicants for these decisions cannot be provided with a statement of reasons for the decision.

1.22 Clause 158 sets out procedures for security certificates to be issued in the intelligence and security jurisdiction.^[13] Subclause 158(2) provides that clause 158 applies in relation to evidence to be adduced or a submission to be made by or on behalf of any of the following:

1.23 As per subclause 158(3), the responsible minister may certify in writing that disclosing the evidence or making the submission would be contrary to the public interest because it would prejudice: in any case, the security, defence or international relations of the Commonwealth (paragraph 158(3)(a)); or, in the case of a criminal intelligence assessment decision—law enforcement interests (paragraph 158(3)(b)).

1.24 Subclause 158(4) provides that if the responsible minister so certifies, when the evidence is adduced or the submission is made, the applicant must not be present (paragraph 158(4)(a)), and the applicant’s representative must not be present except with the consent of the responsible minister (paragraph 158(4)(b)). In relation to this, the explanatory memorandum explains:

In proceedings for review of intelligence and security decisions in the Intelligence and Security jurisdictional area, there will be significant amounts of sensitive information involved. While it is critical that the Tribunal is provided with all information so it can undertake the review process, proceedings in the Intelligence and Security jurisdictional area will necessarily involve sensitive information that should not be disclosed to others—including the applicant. These certificates are intended to ensure the Tribunal is provided with all information, but that sensitive information is adequately protected.^[14]

1.25 There is no opportunity provided in clause 158 for the Tribunal to determine whether sensitive information may be disclosed to the applicant.

1.26 Clause 159 sets out procedures for issuing sensitive information certificates in relation to reviews of a security clearance decision or a security clearance suitability assessment.

1.27 Subclause 159(2) provides that the Director-General of Security may certify in writing that, in their opinion, disclosure of information contained in a document given to the Tribunal by the Director-General in relation to a proceeding:

1.28 Subclause 159(4) provides that if such a certificate is issued the Tribunal must do all things necessary to ensure that the sensitive information is not disclosed to the applicant or any person other than the Director-General of Security or their representative, or a member, Principal Registrar, or a staff member of the Tribunal in the course of the performance of their duties.^[15]

1.29 Clause 161 makes provision for the responsible minister to issue public interest certificates. These apply to proceedings for review of an intelligence and security decision,^[16] and instead of the following provisions:

1.30 As per subclause 161(2) the responsible minister may certify in writing that the disclosure of specified information or the content of a specified document in the proceeding would be contrary to the public interest, on the basis of the same reasons as described in paragraph [1.27] above.

1.31 Subclause 161(5) provides that if such a certificate is issued the Tribunal must do all things necessary to ensure that the sensitive information is not disclosed to the applicant or any person other than the Director-General of Security or their representative, or a member, Principal Registrar, or a staff member of the Tribunal in the course of the performance of their duties.

1.32 Subclause 161(6) permits the Tribunal to make the information or document available to any or all of the parties to the proceedings if the certificate does not specify the reasons set out in paragraph 161(2)(a),(b) or (c). This means, in effect, that the Tribunal only has the discretion to disclose information or documents covered by certificates issued on the basis of ‘any other reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information or the matter contained in the document should not be disclosed’. Subclause 161(7) requires the Tribunal to take into account as a primary consideration the principle that it is desirable, in the interest of ensuring the effective performance of the Tribunal’s functions, for the parties to the proceeding to be made aware of all relevant matters, and to have regard to any reason specified in the certificate.

1.33 The committee has several scrutiny concerns in relation to the above clauses, which are modelled on existing provisions in the AAT Act. While the explanatory memorandum addresses the operation of these clauses, the committee does not consider that it provides sufficient justification for their inclusion, given the significant impact they may have on an individual’s procedural fairness right to have access to all information relevant to the proceedings.

1.34 First, in relation to clause 136, the committee notes that the default position is that no reasons for a decision are provided in relation to an intelligence and security decision. The committee considers that procedural fairness would be better served if the provision was redrafted so that the default position required reasons for a decision to be provided, noting that it is possible for Acts conferring jurisdiction on the Tribunal to modify this rule in relation to the review of particular decisions within the intelligence and security division and that public interest certificates may also be used to ensure sensitive information is withheld. This would be a preferable arrangement, from a scrutiny perspective, as it would place the onus on the Attorney-General to justify why an applicant’s right to hear the case against them should be limited. In this regard the committee also notes that the explanatory memorandum does not explain why this blanket approach is necessary beyond citing the ‘sensitive nature of information that may form the basis of such decisions’ (italics added).^[20]

1.35 Secondly, the committee queries why the sensitive information certificate regime set out in clause 159 and the public interest certificate regime for the intelligence and security division set out in clause 161 are necessary in light of clauses 91 to 94. These clauses empower the Attorney-General to withhold information from parties to proceedings on the basis of public interest certificates. As outlined above at paragraphs [1.4 and 1.7] these certificates are granted to prevent the disclosure of information or documents for the same public interest reasons prescribed in subclauses 159(2) and 161(2). It is therefore unclear why the regime in clauses 91 to 94 could not be applied to the security and intelligence division, and there appears to be no consideration of this issue in the explanatory memorandum.

1.36 Thirdly, the committee notes that there is no discretion for the Tribunal to consider, even on limited grounds, whether information or documents (or parts of the information or documents) for which security certificates are issued under clause 158 should be disclosed to the applicant. Such information would be adduced to the Tribunal by one of the government bodies or employees as defined in subclause 158(2) with the applicant having no knowledge of the evidence being put against them and no opportunity to make arguments or submissions in response. This significantly impacts an applicant’s procedural fairness rights and their ability to meet the case against them. In this regard, the committee considers that it would be more appropriate for the Tribunal to be provided with discretion to determine whether information or documents may be appropriate for disclosure.

1.37 Further, in relation to clauses 159 and 161, the Tribunal is extremely limited in its ability to exercise this discretion given that they are only authorised to do so in relation to information that was certified as against the public interest on the grounds of ‘any other reason that could form the basis for a claim in a judicial proceeding that the information should not be disclosed’. This approach does not enable the Tribunal to consider the particular sensitivities of each case and determine whether disclosure (or at least partial disclosure) may be warranted, regardless of why the certificate was issued. In this regard, the explanatory memorandum has not sufficiently justified why the approach taken is the appropriate one. A more flexible an approach which afforded more discretion to the Tribunal would enable it to consider the evidence, document, or answer to a question on a case-by-case basis and make a judgement about whether the public interest in preventing the information from being disclosed outweighs the applicant’s procedural fairness rights. The Tribunal might also consider whether an established public interest against disclosure can be adequately protected through partial disclosure of the information covered by a security certificate.

1.38 Again, it is unclear to the committee how these provisions further the objectives of the bill in providing fairness for applicants, particularly noting the absence of any safeguards, such as a special advocate regime.

1.39 Finally, the committee notes that it has not generally considered that consistency with existing provisions in legislation is, of itself, sufficient justification for provisions that limit the availability or adequacy of review of decisions that will affect a person’s rights and liberties, such as provisions that may impact whether a person would receive a fair hearing. In this case, the committee considers the remaking of a federal administrative review body to provide an adequate opportunity for policy makers to reconsider the procedural fairness implications of existing measures.

1.40 In light of the above, the committee requests the Attorney-General provide a comprehensive justification for the rigid approach adopted for decisions made in the intelligence and security jurisdiction of the Tribunal, including:

Broad discretionary power^[21]

1.41 Clause 294 provides that certain people can apply for legal or financial assistance in relation to Tribunal proceedings, specifically:

1.42 Subclause 294(7) provides that if the Attorney-General of the Commonwealth considers that it would involve hardship to the person to refuse the person’s application, and in all the circumstances, it is reasonable that the person’s application should be granted, the Attorney-General may authorise the provision by the Commonwealth to the person of legal or financial assistance determined by the Attorney-General in respect of the proceeding. Subclause 294(8) further provides that the legal or financial assistance is subject to any conditions determined by the Attorney-General.

1.43 Where a bill contains a discretionary power, the committee expects the explanatory memorandum to the bill to address whether there are appropriate criteria or considerations that limit or constrain the exercise of any power, including whether they are contained in law or policy. In this case, the explanatory memorandum merely notes that ‘[t]he decision to grant financial or legal assistance (including the amount granted) is at the discretion of the Attorney-General’.^[22]

1.44 In light of the above, the committee requests the Attorney-General’s detailed advice as to:

^[1] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Administrative Review Tribunal Bill 2023, Scrutiny Digest 2 of 2024; [2023] AUSStaCSBSD 19.

^[2] Clauses 91, 92, 93, 94 and 189. The committee draws senators’ attention to these provisions pursuant to Senate standing orders 24(1)(a)(i) and (iii).

^[3] Relating to appeals and references of questions of law to the Federal Court.

^[4] This clause applies to certificates granted under subclauses 91(1) or (2), 161(2), 272(1), or under a provision listed in column 2 of the table in subclause 162(1).

^[5] For example, the court could not decide that a matter should be disclosed if the certificate was granted because the disclosure would prejudice the security, defence or international relations of the Commonwealth.

^[6] See, for eg, SDCV v Director-General of Security [2022] HCA 32 per Edelman J.

^[10] Clauses 136, 158, 159 and 161. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).

^[11] The committee considered these issues in relation to substantively similar clauses of the Australian Security Amendment Bill 2023 in Scrutiny Digest 5 of 2023 and Scrutiny Digest 6 of 2023. The Australian Security Amendment Bill 2023 inserted clauses into the Administrative Appeals Tribunal Act 1975 which are currently being replicated in this bill. The concerns set out in this entry largely mirror those in the committee’s previous commentary on the Australian Security Amendment Bill 2023 in which the committee ultimately drew its scrutiny concerns to the Senate for consideration.

^[12] An intelligence and security decision is defined in clause 9 of the bill to include a criminal intelligence assessment, an exempt security record decision, a foreign acquisitions and takeovers decision, a preventative detention decision, a security assessment, a security clearance decision, or a security clearance suitability assessment.

^[13] Subclause 158(1) provides that the clause does not apply to exempt security record decisions.

^[15] Subclause 159(5) provides that this requirement does not apply in relation to disclosure to the applicant or their representative to the extent that the information has already been lawfully disclosed to the applicant or is disclosed to the applicant with consent of the Director-General of Security.

^[16] Subclause 161(1) provides that the clause does not apply to exempt security record decisions.

^[21] Clause 294. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(ii).

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests