Administrative Review Tribunal (Consequential and Transitional Provisions No 2) Bill 2024 - Initial Scrutiny [2024] AUSStaCSBSD 29 (28 February 2024)

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Purpose	The Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Bill 2024 (the bill) forms part of a package of bills that would abolish the Administrative Appeals Tribunal and establish the Administrative Review Tribunal. The bill would support the package, by making consequential amendments to the remaining 110 Commonwealth Acts that interact with the AAT Act, including Acts that have required consultation with states and territories under cooperative schemes or intergovernmental agreements.
Portfolio	Attorney-General
Introduced	House of Representatives on 7 February 2024
Bill status	Before the House of Representatives

Limitation of judicial review^[3]

1.3 Proposed paragraph (y) would provide that decisions of the Administrative Review Tribunal (the Tribunal) which are conducted by the intelligence and security jurisdictional area of the Tribunal, except for review decisions of exempt security record decisions, are a class of decision that are excluded from the operation of the ADJR Act.

1.4 This has the effect that, except for exempt security record decisions and those made by the National Archives of Australia, no decisions made under the intelligence and security jurisdictional area of the Tribunal are able to be reviewed under the ADJR Act.

This item amends paragraph (y) of Schedule 1 of the ADJR Act so that it captures all Tribunal decisions on review of a security and intelligence decision that are required by clause 134(1) of the ART Bill to be considered in the Intelligence and Security jurisdictional area. Clause 134(1) of the ART Bill provides that the ART’s powers in relation to proceedings for review of an intelligence and security decision are to be exercised in the Intelligence and Security jurisdictional area. Intelligence and security decisions are defined in clause 4 of the ART Bill.

However, the item excludes ‘exempt security record decisions’ within the meaning of the ART Bill. The effect of the amendment is that decisions of the Tribunal made on review of an intelligence and security decision, other than exempt security records decisions, are excluded from ADJR Act review. Judicial review of these kinds of decisions remains available under section 39B of the Judiciary Act 1903 and section 75(v) of the Constitution.

Under the current paragraph (y) of Schedule 1, decisions made on all reviews conducted in the Security Division are exempt from ADJR Act review, except those made on review of decisions of the National Archives of Australia. The item maintains the effect of the existing law with respect to these reviews, but expands the availability of ADJR Act review to all exempt security record decisions, rather than only those made by the National Archives of Australia.

1.6 The committee welcomes that the amendment expands, albeit narrowly, the scope of decisions made by the intelligence and security jurisdictional area to which a person could seek ADJR Act review. However, the committee considers the explanatory memorandum should explain why it is necessary and appropriate for ADJR Act review to be excluded from all other decisions in this area of the Tribunal. This explanation is particularly pertinent in light of the nature of proceedings in the intelligence and security jurisdictional area to which limited procedural fairness protections apply and applicants are limited in their ability to test evidence and are prohibited from receiving reasons for decisions made by the Tribunal.^[4]

1.7 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 be able to seek ADJR Act review of an administrative decision. 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 impact of existing measures on review rights.

1.8 The committee requests the Attorney-General’s advice as to why it is necessary and appropriate for decisions made by the Administrative Review Tribunal in its intelligence and security jurisdictional area to be exempted from review under the Administrative Decisions (Judicial Review) Act 1977 with limited exceptions.

Availability of independent merits review^[5]

1.9 Item 9 of Schedule 15 would repeal subsections 105.51(5) to (9) of the Criminal Code Act 1995 (the Criminal Code). These provisions of the Criminal Code provide that an application may be made to the Administrative Appeals Tribunal (AAT) for ex-post facto review of a decision to make or extend a preventative detention order. The AAT is empowered to declare such a decision void or to order compensation. Existing subsection 105.51(7) provides that the AAT may declare a preventative detention order void if the Tribunal would have set the decision aside if an application for review of the decision had been able to be made to the Tribunal while the order was in force.

... The effect of this item is to remove the ability for individuals to seek administrative review of PDO decisions, and leave the review of PDO decisions to the purview of the courts, pursuant to existing judicial review mechanisms.

Providing for only judicial review of PDO decisions is appropriate and addresses the risk that sections 105.51(5) and (7) 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. It also reflects the seriousness and extraordinary nature of PDO decisions, and the courts’ expertise in handling such matters.

The remedies currently available to an affected individual through the administrative review mechanism (voiding of a PDO decision and an award of compensation) are also available through judicial review.^[6]

1.11 Noting the significant scrutiny concerns relating to the preventative detention arrangements contained in Division 105 of the Criminal Code, the committee considers that any alteration to the safeguards contained within the Division requires careful consideration by the Parliament, supported by detailed discussion in the explanatory materials to the bill.

1.12 The committee considers that the grounds upon which the Tribunal may declare a decision void are different from the grounds that would be considered by a court in making the same decision. Noting subsection 105.51(7), the Tribunal considers whether to void the decision on the same basis as it would perform any of its merit review functions. This means that the Tribunal has a broader scope to void a preventative decision order decision when compared to the relatively narrow grounds considered by a court on judicial review. The Tribunal could set aside a decision if it was not the correct or preferable one whereas a court could only do so if the decision was made without jurisdiction. It would be similarly more difficult for a person to gain compensation via legal proceedings when compared to review by the Tribunal. Compensation is not an available remedy in judicial review proceedings and any proceedings for an alleged tortious act (such as false imprisonment) would not only be more costly than merits review but would also place a plaintiff at risk of a costs order being made against them. Given these matters, the Committee considers that the continued availability of judicial review is an inadequate justification for the removal of merits review by the AAT.

1.13 In relation to the suggestion that the existing merits review function of the AAT may amount to an exercise of judicial power by a non-Chapter III court (and therefore be unconstitutional) the committee considers that this claim requires further elaboration and justification given that the grounds for a conclusion that a PDO is ‘void’ is not limited to legal grounds but includes also that the order was wrongly made in the circumstances (ie the making of the decision was not preferable). The committee also notes that the payment of compensation is not solely within the jurisdiction of the courts and that the Executive provides compensation when appropriate, for example, under the Scheme for Compensation for Detriment caused by Defective Administration. It is unclear why monies paid in compensation in circumstances where the tribunal concludes that a PDO was not the correct or preferable decision, cannot be characterised as compensation for defective administration of the particular administrative scheme at issue.

1.14 Finally, the committee notes the comments of the Independent National Security Legislation Monitor (INSLM) in its review of Division 105 of the Criminal Code, who considered the availability of independent merits review by the Tribunal as a contributing factor to the INSLM’s decision ultimately not to recommend the removal of the exclusion of ADJR Act review for decisions made under Division 105.^[7]

1.15 The committee therefore requests the Attorney-General’s advice as to:

Limitation of merits review – application timeframes^[8]

1.16 Item 54 of Schedule 1 to the bill would repeal subsection 40Y(2) of the Wine Australia Act 2013 (the Wine Act) and substitute it with proposed subsections 40Y(2) and (3). The substance of the amendment is to replace the reference to section 29 of the Administrative Appeals Tribunal Act 1975 with references to clauses 18 and 19 of the Administrative Review Tribunal Act. In effect this removes the Tribunal’s ability to extend the 28 day period during which an applicant may apply for Tribunal review.

1.17 Similarly, item 74 of Schedule 11 to the bill would substitute subsection 77(2) of the Plant Breeder’s Rights Act 1994 to remove the Tribunal’s power to extend the timeframe for a review application. In relation to this the explanatory memorandum notes:

PBR are commercially valuable, exclusive rights of limited duration. PBR give rights of action against third parties for infringement, including the recovery of damages. Administrative decisions under the Plant Breeder’s Rights Act 1994 concern the granting, limitation and revocation of PBR. To allow late review of PBR decisions by the ART would risk changing what were non‑infringing acts by third parties into infringing acts retroactively. To balance the interests of applicants, requesters and grantees, with the interests of third parties, it is appropriate to require that ART review of PBR decisions always be sought within the period prescribed in the rules under clause 18 of the ART Bill, with no possibility of extension.^[9]

1.18 No justification is provided in the explanatory memorandum as to why it is necessary for the bill to remove the Tribunal’s ability to extend the application timeframe for decisions in relation to the Wine Act. The committee expects that justification should be provided in light of the impact such a limitation may have on the ability of parties to seek review.

1.19 The committee requests the Attorney-General’s advice as to why it is necessary and appropriate for item 54 of Schedule 1 to the bill to remove the Administrative Review Tribunal’s discretion to extend the application timeframe for review of decisions under the Wine Act 2013.

1.20 The committee notes the explanation in the explanatory memorandum in relation to item 74 of Schedule 11 and leaves to the Senate as a whole the appropriateness of removing the Administrative Review Tribunal’s discretion to extend the application timeframe for review of decisions under the Plant Breeder’s Rights Act 1994.

^[2] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Bill 2024, Scrutiny Digest 3 of 2024; [2024] AUSStaCSBSD 29.

^[3] Schedule 2, item 2, paragraph (y) of Schedule 1 to the Administrative Decisions (Judicial Review) Act 1977. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(iii).

^[5] Schedule 15, item 9. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(iii).

^[7] Independent National Security Legislation Monitor, Review of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control orders and preventative detention orders (September 2017), pp. 82–83.

^[8] Schedule 1, item 54, proposed subsection 54(3) of the Wine Australia Act 2013; Schedule 11, item 74, proposed subsection 77(2) of the Plant Breeder’s Rights Act 1994.

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