Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Link to this | Hansard source

I present two supplementary explanatory memoranda to the bill, and I seek leave to move government amendments (1) to (7) on sheet SE106 and government amendments (1) to (109) on sheet ZC275, as circulated, together.

Leave granted.

I move government amendments (1) to (7) on sheet SE106 and government amendments (1) to (109) on sheet ZC275 together:

SHEET SE106

(1) Clause 4, page 4 (line 15) to page 14 (line 11), insert:

ART social services decision: see subsection 131D(3).

eligible social services decision: see section 131C.

second review: see subsection 131D(1).

(2) Clause 108, page 89 (line 16), omit "Note", substitute "Note 1".

(3) Clause 108, page 89 (after line 18), at the end of subclause (3), add:

Note 2: This subsection does not apply in relation to ART social services decisions (see Part 5A).

(4) Clause 111, page 92 (after line 17), after paragraph (2)(c), insert:

(ca) if the party has a right to apply for second review of the Tribunal's decision under Part 5A—notice of that right;

(5) Page 108 (after line 16), after Part 5, insert:

Part 5A — Second review for certain social services decisions

Division 1 — Preliminary

131A Simplified outline of this Part

A person may apply to the Tribunal for review of an ART social services decision.

Most ART social services decisions are decisions made by the Tribunal on review of social services decisions. However, some ART social services decisions are made originally by the Tribunal.

In general, the Tribunal must deal with an application for review of an ART social services decision in the same way as it would deal with a reviewable decision of that kind.

However, this general rule is modified by Division 3 of this Part, and may also be modified by regulations made under this Part.

An application cannot be made under section 123 to refer a decision of the Tribunal on review of a social services decision, or a decision of the Tribunal on second review, to the guidance and appeals panel.

131B How this Part applies

This Part applies despite subsection 108(3) (no application for review of varied or substituted decision).

131C Meaning of eligible social services decision

Each of the following is an eligiblesocial services decision:

(a) a reviewable decision made under the A New Tax System (Family Assistance) Act 1999;

(b) a reviewable decision made under the A New Tax System (Family Assistance) (Administration) Act 1999, other than a child care provider decision (within the meaning of that Act);

(c) a decision under section 92 of the Child Support (Registration and Collection) Act 1988 to refuse an extension application;

(d) a reviewable decision made under the Child Support (Registration and Collection) Act 1988 that is a care percentage decision (within the meaning of that Act);

(e) a decision under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 to make, or not to make, a determination;

(f) a reviewable decision made under the Paid Parental Leave Act 2010 that is a claimant decision (within the meaning of that Act);

(g) a reviewable decision made under the Social Security Act 1991;

(h) a reviewable decision made under the Social Security (Administration) Act 1999;

(i) a reviewable decision made under the Student Assistance Act 1973.

Division 2 — General rules for second review

131D Who can apply

(1) A person whose interests are affected by an ART social services decision may apply to the Tribunal for review (the second review) of the decision.

(2) However, an application cannot be made for second review if the ART social services decision was made in accordance with subsection 103(2) (decision agreed by parties).

(3) An ART social services decision is:

(a) for an eligible social services decision that has been affirmed by the Tribunal—the decision as affirmed; or

(b) for an eligible social services decision that has been varied by the Tribunal—the decision as varied; or

(c) for an eligible social services decision that has been set aside and remade by the Tribunal—the decision as remade; or

(d) for an eligible social services decision that has been set aside and remitted to the decision-maker by the Tribunal—the decision as set aside; or

(e) for an eligible social services decision made under section 92 or subsection 95N(2) of the Child Support (Registration and Collection) Act 1988the decision as made.

131E Operation of this Act and other laws

(1) This Act applies in relation to an ART social services decision as if the decision were a reviewable decision.

(2) If the review of an eligible social services decision under this Act was subject to provisions with a contrary intention in another Act, any second review relating to the decision is subject to those provisions in the same way.

(3) This section has effect subject to:

(a) the modifications set out in Division 3; and

(b) any modifications of this Act prescribed by the regulations for the purposes of second review.

Division 3 — Modifications for second review

131F References to the decision-maker

A reference in this Act, as it would apply for the purposes of second review, to the decision-maker for an ART social services decision is taken to be a reference to the decision-maker for the related eligible social services decision.

131G Giving reasons and documents to Tribunal

Section 23 (decision-maker must give reasons and documents to Tribunal—general rule) does not apply in relation to an application for second review.

131H Who can apply — claimant decisions

Despite section 17 (who can apply), an application for second review in relation to a claimant decision (within the meaning of the Paid Parental Leave Act 2010) may not be made by a person in the person's capacity as an employer.

131J When to apply

(1) Despite a contrary intention in any other law, an application for second review must be made within the time prescribed under section 18 (when to apply—general rule).

(2) However, an application for second review of a child care decision (within the meaning of the A New Tax System (Family Assistance) (Administration) Act 1999) about an individual's entitlement to be paid CCS for a week may also be made after the time prescribed under section 18 (when to apply—general rule) if the application is made:

(a) because of a review, by the Commissioner of Taxation, of a previous decision by the Commissioner about the taxable income of the individual or another person in relation to whom the individual has met the CCS reconciliation conditions for the income year in which the CCS fortnight that includes the week starts; and

(b) within the time prescribed under that section after the individual or other person was notified by the Commissioner of the outcome of the review.

131K Parties to proceeding

(1) The parties to a proceeding for second review include the persons who were parties to the proceeding for review of the related eligible social services decision.

(2) However, subsection (1) has effect subject to:

(a) section 65 (certain parties may seek to withdraw from being a party); and

(b) section 83 (Tribunal may remove party from proceeding if party fails to appear or does not comply).

131L Limits on applying to become a party to proceeding — claimant decisions

(1) This section applies to a proceeding for a second review that relates to a claimant decision (within the meaning of the Paid Parental Leave Act 2010).

(2) Despite paragraph 22(1)(c), a person may not apply to be a party to the proceeding in the person's capacity as an employer.

131M Decision cannot be altered outside Tribunal process

Despite a contrary intention in any other law, section 31 (decision cannot be altered outside Tribunal process) has effect in relation to a second review.

131N No automatic election notice for decision-maker

Despite a contrary intention in any other law, a decision-maker is not taken to have given the Tribunal an election notice in relation to a second review.

131P Tribunal may have regard to records and documents from earlier proceeding

In a proceeding for second review, the Tribunal may have regard to:

(a) any record of the proceeding (the earlier proceeding) in which the ART social services decision was made (including a record of any evidence taken in the earlier proceeding); and

(b) any document or thing relating to the earlier proceeding given to the Tribunal; and

(c) any order or recommendation of the Tribunal in the earlier proceeding.

131Q Care percentage determinations reviewed under other Acts

Family assistance care percentage decisions

(1) Section 123 of the A New Tax System (Family Assistance) (Administration) Act 1999 does not apply in relation to a second review of a family assistance care percentage decision.

(2) If:

(a) the Tribunal has reviewed an ART social services decision made on review of a decision on application referred to in section 89 of the Child Support (Registration and Collection) Act 1988; and

(b) the review of the ART social services decision involved (wholly or partly) a review of a determination to which a family assistance care percentage decision relates;

then, despite section 54 of this Act, the Tribunal must not, on second review of the family assistance care percentage decision, vary or substitute the decision in a way that would have the effect of varying or substituting the determination referred to in paragraph (b).

Child support care percentage decisions

(3) Section 95M of the Child Support (Registration and Collection) Act 1988 does not apply in relation to a second review of a child support care percentage decision.

(4) If:

(a) the Tribunal has reviewed an ART social services decision made on review of a decision on application referred to in section 111 of the A New Tax System (Family Assistance) (Administration) Act 1999; and

(b) the review of the ART social services decision involved (wholly or partly) a review of a determination to which a child support care percentage decision relates;

then, despite section 54 of this Act, the ART must not, on second review of the child support care percentage decision, vary or substitute the decision in a way that would have the effect of varying or substituting the determination referred to in paragraph (b).

Definitions

(5) In this section:

child support care percentage decision means a care percentage decision within the meaning of the Child Support (Registration and Collection) Act 1988.

family assistance care percentage decision means a care percentage decision within the meaning of the A New Tax System (Family Assistance) (Administration) Act 1999.

131R Date of effect provisions

The following provisions do not apply in relation to second review:

(a) section 125 of the A New Tax System (Family Assistance) (Administration) Act 1999;

(b) section 95N of the Child Support (Registration and Collection) Act 1988.

131S Treating events as having occurred

(1) Paragraph 127(a) of the A New Tax System (Family Assistance) (Administration) Act 1999 has effect as if the reference in that paragraph to ART review of a decision included a reference to second review of an ART social services decision made on ART review.

(2) Paragraph 183(a) of the Social Security (Administration) Act 1999 has effect as if the reference in that paragraph to ART review of a decision included a reference to second review of an ART social services decision made on ART review.

(3) Paragraph 319(a) of the Student Assistance Act 1973 has effect as if the reference in that paragraph to ART review of a decision included a reference to second review of an ART social services decision made on ART review.

131T Remitting decisions for reconsideration

Despite a contrary intention in any other law, section 85 (Tribunal may remit decision to decision-maker for reconsideration) applies in relation to a second review.

131U Legal or financial assistance

Despite a contrary intention in any other law (other than section 122 of the A New Tax System (Family Assistance) (Administration) Act 1999):

(a) subsection 294(1) (legal or financial assistance for applicants) applies in relation to a person who applies, or proposes to apply, to the Tribunal for second review; and

(b) subsection 294(3) (legal or financial assistance for other parties) applies in relation to a proceeding for second review; and

(c) subsection 294(4) (legal or financial assistance for court proceedings) applies in relation to a matter that relates to a proceeding for second review.

131V Operation and implementation of decision on second review

Despite a contrary intention in any other law, subsection 32(2) (Tribunal may stay operation or implementation) applies in relation to a second review.

131W Guidance and appeals panel

An application cannot be made under section 123 to refer any of the following to the guidance and appeals panel:

(a) a decision of the Tribunal on review of an eligible social services decision;

(b) a decision of the Tribunal on second review.

Note: However, the President may, on the President's own initiative, refer an application for review of an eligible social services decision or for second review to the guidance and appeals panel under section 122.

131X Time and manner for making appeals

(1) This section applies:

(a) if a person applies for second review of an ART social services decision; and

(b) for the purposes of counting the 28 days mentioned in paragraph 174(1)(a), (b) or (c) within which an appeal to the Federal Court from the decision may be made.

(2) Do not take into account any day in the period between:

(a) the day the application for second review is made; and

(b) the day the person is given:

(i) notice under subsection 37(5) that the Tribunal has been constituted for the purposes of the second review; or

(ii) notice of a decision by the Tribunal that the person's interests are not affected by the ART social services decision.

(6) Clause 172, page 143 (line 8), after "Registrar", insert ", or second review that relates to the decision,".

(7) Clause 172, page 143 (line 10), after "1988", insert "and section 131E of this Act".

SHEET ZC275

(1) Clause 4, page 9 (lines 16 to 18), omit the definition of litigation guardian.

(2) Clause 4, page 9 (before line 19), before the definition of made under an Act, insert:

litigation supporter, in relation to a party to a proceeding, means a person appointed to be a litigation supporter for the party under section 67.

(3) Clause 4, page 10 (line 12), omit "subsection", substitute "section".

(4) Clause 29, page 29 (line 22), omit "the decision-maker", substitute "a person".

(5) Clause 29, page 29 (line 25), omit "decision-maker", substitute "person".

(6) Clause 29, page 29 (lines 27 to 29), omit paragraph (3)(c), substitute:

(c) the person gives a copy of the application for the order to each party to the proceeding for review of the decision (other than the person);

(7) Clause 37, page 38 (line 21), after "non-participating party", insert "to the proceeding".

(8) Clause 42, page 42 (lines 12 to 15), omit subclause (5), substitute:

(5) If the Tribunal is constituted for the purposes of the proceeding by 2 or 3 members, the presiding member must be:

(a) if a Non-Judicial Deputy President constituted, or was one of the persons who constituted, the Tribunal for the purposes of the proceeding in which the Tribunal decision was made—equal in seniority to, or more senior than, the most senior person involved in making the Tribunal decision (see subsections (6) and (7)); or

(b) in any other case—more senior than the most senior person involved in making the Tribunal decision (see subsections (6) and (7)).

(9) Clause 55, page 47 (after line 16), after subclause (2), insert:

(2A) If a party to the proceeding is a non-participating party to a Tribunal case event in relation to the proceeding, subsection (1) does not apply in relation to that party in relation to that Tribunal case event.

(10) Clause 56, page 48 (line 15), after "to a proceeding", insert "or a Tribunal case event in relation to a proceeding".

(11) Heading to clause 60, page 50 (line 11), at the end of the heading, add "or Tribunal case event".

(12) Clause 60, page 50 (lines 12 to 14), omit subclause (1), substitute:

(1) A person who is the decision-maker for a reviewable decision may give the Tribunal written notice (an election notice) that the person does not wish to participate in:

(a) a kind of proceeding in the Tribunal; or

(b) a kind of Tribunal case event (other than a directions hearing or part of a directions hearing) in relation to a kind of proceeding in the Tribunal.

(13) Clause 60, page 50 (line 16), after "proceeding", insert "or Tribunal case event".

(14) Heading to clause 61, page 50 (line 19), at the end of the heading, add "or Tribunal case event".

(15) Clause 61, page 50 (line 27), after "notice", insert "under paragraph 60(1)(a)".

(16) Clause 61, page 51 (lines 3 to 7), omit the note.

(17) Clause 61, page 51 (after line 7), after subclause (1), insert:

(1A) A person is a non-participating party to a Tribunal case event in relation to a proceeding if:

(a) the person is a party to the proceeding (other than the applicant); and

(b) the proceeding relates to a decision for which the person is the decision-maker; and

(c) the Tribunal case event and proceeding are of a kind for which the person has given an election notice under paragraph 60(1)(b); and

(d) the proceeding is not a guidance and appeals panel proceeding; and

(e) any conditions prescribed by the rules for the purposes of this paragraph are satisfied; and

(f) the Tribunal has not decided under section 62 that the person is to participate in the Tribunal case event; and

(g) the Tribunal has not ordered the person to participate in the Tribunal case event under section 63.

Note: A non-participating party remains a party to the proceeding and still needs to comply with this Act and orders of the Tribunal in relation to the proceeding. However, certain requirements do not apply to the party (see, for example, section 83 which deals with removal of a party for failure to appear or non-compliance).

(18) Clause 61, page 51 (line 9), after "proceeding", insert "or Tribunal case event".

(19) Clause 61, page 51 (line 10), after "proceeding", insert "or Tribunal case event".

(20) Clause 61, page 51 (line 11), after "proceeding", insert "or Tribunal case event".

(21) Clause 61, page 51 (line 14), after "proceeding", insert "or Tribunal case event".

(22) Clause 62, page 51 (after line 23), after subclause (1), insert:

(1A) If a non-participating party to a Tribunal case event gives the Tribunal written notice (a participation notice) that the party wishes to participate in the Tribunal case event, the Tribunal must decide whether or not the party is to participate in the Tribunal case event.

Note: An election notice relates to a kind of Tribunal case event in relation to a kind of proceeding. A participation notice relates to a particular Tribunal case event of that kind. The election notice continues to apply to other Tribunal case events of that kind in relation to proceedings of that kind.

(23) Clause 63, page 51 (after line 29), after subclause (1), insert:

(1A) A non-participating party to a Tribunal case event may give the Tribunal written submissions in relation to the Tribunal case event.

(24) Clause 63, page 52 (line 3), after "proceeding", insert "or Tribunal case event in relation to a proceeding".

(25) Clause 64, page 52 (line 17), at the end of paragraph (1)(b), add "or Tribunal case events".

(26) Clause 64, page 52 (line 24), at the end of paragraph (2)(c), add "or a Tribunal case event in relation to the proceeding".

(27) Heading to clause 67, page 54 (line 1), omit "litigation guardian", substitute "litigation supporter".

(28) Heading to subclause 67(1), page 54 (line 2), omit "litigation guardian", substitute "litigation supporter".

(29) Clause 67, page 54 (lines 3 and 4), omit "litigation guardian", substitute "litigation supporter".

(30) Clause 67, page 54 (lines 6 to 11), omit paragraph (1)(a), substitute:

(a) the party does not have decision-making ability; and

(31) Clause 67, page 54 (after line 14), after subclause (1), insert:

(1A) In considering whether to make an order under subsection (1), it is to be presumed that a party to a proceeding has decision-making ability.

(1B) The presumption is not rebutted solely on the basis that a party has a disability.

(32) Clause 67, page 54 (line 15), omit "litigation guardian", substitute "litigation supporter".

(33) Clause 67, page 54 (line 20), omit "litigation guardian", substitute "litigation supporter".

(34) Clause 67, page 54 (lines 21 and 22), omit "litigation guardian", substitute "litigation supporter".

(35) Clause 67, page 54 (line 26), omit "litigation guardian", substitute "litigation supporter".

(36) Clause 67, page 55 (line 3), omit "litigation guardian", substitute "litigation supporter".

(37) Heading to subclause 67(5), page 55 (line 6), omit "litigation guardian", substitute "litigation supporter".

(38) Clause 67, page 55 (line 7), omit "litigation guardian", substitute "litigation supporter".

(39) Clause 67, page 55 (lines 8 and 9), omit paragraph (5)(a), substitute:

(a) the party may participate in the proceeding:

(i) wherever possible—with the support of the litigation supporter; or

(ii) otherwise—by the litigation supporter; and

(40) Clause 67, page 55 (line 10), omit "litigation guardian", substitute "litigation supporter".

(41) Clause 67, page 55 (line 13), omit "litigation guardian", substitute "litigation supporter".

(42) Heading to subclause 67(6), page 55 (line 16), omit "litigation guardian", substitute "litigation supporter".

(43) Clause 67, page 55 (line 17), omit "litigation guardian", substitute "litigation supporter".

(44) Clause 67, page 55 (line 18), omit "litigation guardian", substitute "litigation supporter".

(45) Clause 67, page 55 (line 22), omit "litigation guardian", substitute "litigation supporter".

(46) Clause 67, page 55 (line 26), omit "litigation guardian", substitute "litigation supporter".

(47) Heading to subclause 67(9), page 55 (line 28), omit "litigation guardian", substitute "litigation supporter".

(48) Clause 67, page 55 (line 29), omit "litigation guardian", substitute "litigation supporter".

(49) Clause 67, page 55 (line 31), omit "litigation guardian", substitute "litigation supporter".

(50) Clause 67, page 56 (line 2), omit "litigation guardian", substitute "litigation supporter".

(51) Clause 67, page 56 (lines 3 to 7), omit paragraph (10)(b), substitute:

(b) the Tribunal considers that the party has decision-making ability; or

(52) Clause 67, page 56 (line 9), omit "litigation guardian", substitute "litigation supporter".

(53) Clause 67, page 56 (line 11), omit "litigation guardian", substitute "litigation supporter".

(54) Clause 67, page 56 (line 13), omit "litigation guardian", substitute "litigation supporter".

(55) Clause 67, page 56 (line 15), omit "litigation guardian", substitute "litigation supporter".

(56) Clause 67, page 56 (line 17), omit "litigation guardian", substitute "litigation supporter".

(57) Clause 67, page 56 (line 20), omit "litigation guardians", substitute "litigation supporters".

(58) Clause 67, page 56 (line 24), omit "litigation guardians", substitute "litigation supporters".

(59) Clause 67, page 56 (line 25), omit "litigation guardian", substitute "litigation supporter".

(60) Clause 67, page 56 (line 26), omit "litigation guardian", substitute "litigation supporter".

(61) Clause 72, page 60 (line 29), at the end of subclause (2), add "or Tribunal case event".

(62) Clause 83, page 66 (line 25), at the end of paragraph (2)(b), add "to the proceeding or Tribunal case event".

(63) Clause 84, page 67 (line 12), after "application)", insert "for review of a decision".

(64) Clause 84, page 67 (lines 21 to 27), omit subclause (2), substitute:

Another person may apply to continue with substantive application

(2) A person whose interests are affected by the decision may apply to the Tribunal to continue with the substantive application.

(65) Clause 84, page 68 (lines 3 to 8), omit paragraph (4)(a), substitute:

(a) the Tribunal considers that the decision does not affect any person's interests other than the applicant; or

(66) Clause 87, page 70 (line 13), after "proceeding", insert "or a Tribunal case event of that kind".

(67) Clause 88, page 71 (line 8), omit "(other than a non-participating party)", substitute "to which the dispute resolution process relates (other than a non-participating party to that dispute resolution process or that proceeding)".

(68) Clause 88, page 71 (lines 14 to 16), omit subclause (4), substitute:

(4) However, subsection (3) does not apply if, before the start of the hearing of the proceeding, a party to the proceeding to which the dispute resolution process relates notifies the Tribunal that the party objects to the report being admitted.

(69) Clause 96, page 79 (line 15), after "party", insert "to the proceeding".

(70) Heading to subclause 106(3), page 85 (line 6), at the end of the heading, add "to the proceeding or hearing".

(71) Clause 106, page 85 (line 9), after "party", insert "to the proceeding or the hearing of the proceeding".

(72) Clause 106, page 85 (line 29), after "non-participating party", insert "to the proceeding or Tribunal case event".

(73) Clause 109, page 90 (lines 11 to 13), omit paragraph (1)(b), substitute:

(b) the decision is:

(i) made under section 105 (Tribunal decision on review of reviewable decision); and

(ii) not made in accordance with subsection 103(2) (decision agreed by parties); and

(74) Clause 109, page 90 (line 17), after "made", insert "under section 105".

(75) Clause 111, page 92 (after line 25), after subclause (4), insert:

(4A) A failure by the Tribunal to provide the things mentioned in paragraphs (2)(c) to (d) by the time required by subsection (3) does not affect the validity of the Tribunal's decision.

(76) Clause 119, page 97 (line 12), at the end of paragraph (b), add "or subsection 157(3) (orders restricting publication or disclosure of findings)".

(77) Clause 128, page 105 (after line 30), at the end of the clause, add:

(5) To avoid doubt, the President is not required to refer any decision of the Tribunal to the guidance and appeals panel.

(78) Clause 130, page 107 (line 23), omit paragraph (5)(a).

(79) Clause 130, page 107 (before line 30), before paragraph (6)(a), insert:

(aa) Division 3 of Part 3 (applying for review of decision);

(80) Clause 147, page 122 (line 10), after "security", insert "record".

(81) Clause 147, page 122 (line 13), after "proceeding", insert "or Tribunal case event".

(82) Clause 147, page 122 (line 15), after "proceeding", insert "or Tribunal case event".

(83) Clause 157, page 129 (after line 9), at the end of the clause, add:

Note: Breach of a non-publication or non-disclosure order is an offence (see section 119).

(84) Clause 159, page 131 (lines 3 to 5), omit "may certify, in writing, that, in the opinion of the Director-General or a person authorised by the Director-General under this section", substitute "or a person authorised by the Director-General under this section may certify, in writing, that, in the opinion of the Director-General or authorised person".

(85) Clause 161, page 135 (after line 7), at the end of the clause, add:

Delegation security clearance decisions and security clearance suitability assessments

(11) The ASIO Minister may, in writing, delegate the ASIO Minister's power under subsection (2) in relation to a security clearance decision or a security clearance suitability assessment to:

(a) the Director-General of Security; or

(b) an ASIO employee (within the meaning of the ASIO Act), or an ASIO affiliate (within the meaning of that Act), who holds, or is acting in, a position in ASIO that is equivalent to or higher than a position occupied by an SES employee.

(12) In exercising a power under the delegation, the delegate must comply with any written directions of the ASIO Minister.

(86) Clause 201, page 165 (line 1), omit "with".

(87) Clause 202, page 165 (line 14), omit "with".

(88) Clause 205, page 168 (line 10), after "assessed", insert ", by a panel established under section 209,".

(89) Clause 207, page 170 (line 27), after "assessed", insert ", by a panel established under section 209,".

(90) Clause 208, page 172 (line 17), after "assessed", insert ", by a panel established under section 209,".

(91) Heading to clause 209, page 174 (line 1), omit "may", substitute "must".

(92) Clause 209, page 174 (lines 2 to 4), omit subclause (1), substitute:

(1) The Minister must, from time to time, establish one or more panels (assessment panels) of persons for the purposes of assessing whether a candidate or candidates are suitable for appointment under section 205, 207, 208 or 227.

(93) Clause 227, page 184 (line 32), after "assessed", insert ", by a panel established under section 209,".

(94) Clause 234, page 187 (after line 31), after subclause (1), insert:

(1A) Before the Minister makes a recommendation to the Governor-General, the Minister must consult the President.

(95) Clause 242, page 193 (after line 11), after paragraph (2)(h), insert:

(ha) the number of decisions made in accordance with section 103 (if parties reach agreement—review of decisions only) during that year in each jurisdictional area and by the Tribunal as constituted by the guidance and appeals panel for the purposes of proceedings; and

(hb) the number of Tribunal decisions affirmed by a federal court during that year; and

(hc) the number of Tribunal decisions overturned by a federal court during that year; and

(96) Clause 271, page 216 (lines 6 to 10), omit paragraphs (1)(a) and (b), substitute:

(a) both of the following apply:

(i) a person requests the decision-maker for a reviewable decision to give the person a statement of reasons for the decision under section 268;

(ii) the person is given a statement of reasons for the decision under section 269 or 270; or

(b) a person applies to the Tribunal for review of a reviewable decision for which the decision-maker has given the person a statement of reasons.

(97) Clause 273, page 218 (line 22), omit "and legal or financial assistance", substitute ", legal or financial assistance and review of the operation of this Act".

(98) Clause 281, page 225 (lines 16 to 21), omit paragraph (1)(d), substitute:

(ca) for a function or power under subsection 114(1) to alter the text of a decision or statement of reasons for a decision—by the person who made the decision;

(d) for a function or power under subsection 114(1) to alter the text of a decision or statement of reasons for a decision—by an authorised person, but:

(i) only as approved by the President; and

(ii) not if the Tribunal as constituted for the purposes of the proceeding or the person who made the decision is available;

(99) Clause 281, page 225 (line 23), omit "or subsection 115(2) (taxing costs)", substitute ", subsection 115(2) (taxing costs) or a provision mentioned in paragraph 286(a)".

(100) Clause 284, page 227 (table item 5), omit the table item.

(101) Clause 284, page 227 (after table item 10), insert:

(102) Clause 284, page 228 (line 2), after "107", insert ", 108".

(103) Clause 285, page 228 (table item 5, column 1), omit "(other than subsection (8))".

(104) Clause 285, page 229 (table item 10, column 1), omit "subsections 68(2) and (3)", substitute "section 68".

(105) Clause 285, page 229 (after table item 12), insert:

(106) Clause 285, page 229 (after table item 22), insert:

(107) Clause 285, page 230 (line 7), after "107", insert ", 108".

(108) Page 236 (after line 31), at the end of Division 5, add:

294A Review of operation of this Act

(1) The Minister must cause to be conducted a review into the operation of this Act and any Act dealing with consequential or transitional matters arising from the enactment of this Act.

(2) Without limiting subsection (1), the review must include consideration of:

(a) whether the Tribunal is achieving the objective in section 9; and

(b) any other matters relating to the operation of this Act determined by the Minister.

(3) The review must start within the 3 months before the fifth anniversary of the commencement of this Act.

(4) The review must be undertaken by one or more persons (the reviewers) who, in the Minister's opinion, have appropriate expertise in administrative review.

(5) The review must include consultation with the Council, members of the public, Tribunal users and any other person or organisation the reviewers consider appropriate.

(6) The reviewers must give the Minister a written report on the review within 12 months after the fifth anniversary of the commencement of this Act.

(7) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

(109) Clause 295, page 237 (after line 28), at the end of the clause, add:

(6) Before making rules affecting the practice, procedure or operations of the Tribunal, the Minister must consult the President.

The government is moving amendments to the Administrative Review Tribunal Bill 2023, the ART bill. These amendments will strengthen the Administrative Review Tribunal model for enhancements to appointment processes, the mechanism for review and the model for social security and others social security bills. In developing these amendments, we've listened to feedback from stakeholders and the recommendations of the House of Representatives Standing Committee on Social Policy and Legal Affairs. In addition, minor and technical amendments will ensure that the provisions work as intended, correct minor oversights and clarify the operation of the bill.

First, the amendments will require the government of the day to appoint and use assessment panels when undertaking merit based appointment for all tribunal members, strengthening the bill's already robust appointment provisions. Under the amendments, the minister will only be permitted to appoint members if they have been recommended through the merit based process.

Second, the amendments will reinstate a second review process as a right for parties to review of social services decisions where two-tier review currently exists before the AAT. This responds to concerns from those who work on this kind of appeal. Amending the ART Bill to provide a second review by right for social security matters where it currently exists is intended to support a smoother transition to the new tribunal for these types of cases. Reviews in the tribunal must be informal, accessible and quick, and responsive to the diverse needs of parties. The speed, informality and nonadversarial nature of the current AAT first review is important to retain under the new model. The government expects that the greater ability to tailor the first review to the particular matter will reduce the need for second reviews over time while retaining the speed, accessibility and informality of the first review. However, these amendments provide time to ensure the objectives of the new model are being met.

Within three years of establishing the new tribunal, the government proposes to evaluate the impact and efficacy of the review model for social services decisions, including whether reviews at both levels are informal, quick, accessible and trauma informed. My department and the Department of Social Services will work with stakeholders on the best way to progress this program of work. The tribunal's practice directions will be an important part of shaping how the tribunal's powers and procedures will be exercised to deliver accessible, informal and quick review. I understand the AAT is already giving close consideration to the best way to engage stakeholders, including legal assistance providers, advocates and people with lived experience, in the initial design and continuous improvement of the practice directions.

Third, the bill is amended to more clearly reflect supported rather than substituted decision-making, including by changing the term 'litigation guardian' to 'litigation supporter'. This change responds to comments from the disability sector during the committee process.

Finally, these amendments require a statutory review of the bill and related bills to commence just before the five-year anniversary of the commencement of the bill, ensuring proper assessment of the overall reform. This review, to be conducted by an independent eminent expert or a panel with expertise in administrative law, would be a broad-ranging and holistic examination of the bill and the consequential amendments. The statutory review must also consider the implementation of the legislation, including the tribunal's operations and whether it is achieving its objective.

In conclusion, these amendments demonstrate the government's commitment to listening to stakeholders and ensuring the new tribunal is user focused, efficient and fair.

Helen Haines (Indi, Independent) Share this | Link to this | Hansard source

I rise today to speak in support of the government's amendments. These bills represent the biggest reform to administrative law in a generation; it's hard to overstate the importance. The success or failure of the tribunal will impact thousands of Australians every year, whether accessing our social services, migration, health care or tax systems. At the core of the government's administrative reforms is a commitment to be rid of the crony jobs-for-mates culture that pervaded the AAT in its later years. Delivering on this promise starts with getting the appointment process right, with no room for dodgy deals or political nepotism.

Australians were promised a transparent selection process that would see only the most qualified and experienced people appointed to the tribunal. But this was not what was proposed in the bills first introduced to the House, and I had significant concerns, and I made these clear to the Attorney-General. So let me be clear now: there were significant flaws in the bills. There was no requirement to use selection panels and no clear requirement for the Attorney-General to refer to the panel's recommendations. Without amendment, the bills were quite simply incomplete, with inadequate safeguards against politicisation. And, with such a stumble at its biggest hurdle, I was disappointed with that first iteration, to say the least, because, as Professor Mary Crock has said, the success of the new tribunal will be marked by the quality of the individuals appointed to adjudicate actual cases. So I commend the government for responding to the crossbench's calls, and in particular the calls from the member for Mackellar.

These amendments will not only require the use of selection panels but also ensure that the Attorney-General can only recommend a candidate for appointment if they have been found as suitable by a selection panel through a merits based process. I am hopeful that these amendments will deliver on the merits based process that this government promised, but only time will tell.

In coming years, we will want to know if the ART has delivered for Australians and whether the goal of creating a fairer and more accountable decision review system has indeed been achieved. To answer these questions, first we need to ask them, which is why I am supportive of amendments requiring a review of the ART in five years time. This review will be conducted by experts in administrative law and must include public consultation. This crucial review clause was missing when the bill was first introduced into this place. I found that concerning and, frankly, also very disappointing. But in this 47th Parliament we have a crossbench who won't settle for incomplete legislation. We have held the government accountable to its commitments and called for it to do better. Without the strong advocacy of the crossbench, and particularly the member for Warringah, this amendment would not have seen the light of day.

While I would have preferred a legislative review within three years of the act's operation, I recognise the importance of having this review locked down in the calendar so we can look back in five years time and ask whether the new ART truly is the once-in-a-generation reform that we've been promised. Yet again, the introduction of this amendment shows the power that community Independents can have in the parliament. With the government having responded to crossbench calls, I now feel I am able to give these bills my full support. I commend these amendments to the House.

Sophie Scamps (Mackellar, Independent) Share this | Link to this | Hansard source

I would also like to thank the Attorney-General for the introduction of these amendments and being very open to consultation with the crossbench about these amendments. The Administrative Appeals Tribunal was one of the most important pillars of our democracy. It was abolished for very good reasons, and we thank the Attorney-General for the decision to do that. But it was abolished because it had been politicised and stacked with cronies. In doing so, the competence of this vitally important democratic institution had been undermined, the public's trust in this very important institution had been undermined and one of our democratic values had also been undermined. So it was critically important that the fatal flaw that led to it being abolished in the first place was addressed in the new iteration of the Administrative Review Tribunal.

As the member for Indi said, the first iteration of this bill did not address the independence of the appointments process. It did address 'merits based', and we thank the minister for that, but it did not address the independence. That was not sufficiently covered. There was no requirement for there to be the use of assessment panels. There was something in the bill that said assessment panels may be created from time to time, but there was no mandated assessment panel and it was not in the legislation. So we're very happy to see that there are now mandated assessment panels when members are being appointed to the tribunal and it is in the legislation. This is a very important step for our democracy going forward. We know that civil society has been calling for this, the crossbench has been calling for this and the Greens party has been calling for this.

I would say I've also been calling for this type of independent appointments process to be taken up on a far greater basis in general. We can't continue to have appointments being made at the minister's discretion, because we know that, in particular, this type of flaw comes down to the politicisation of the appointments process. So it's vitally important that we have a robust and independent appointments process across all Commonwealth public appointments, and that's what my 'ending jobs for mates' bill is calling for. With any major Commonwealth appointment, there needs to be an independent process where assessment panels are used, independent selection panels are used and then the minister may choose from that shortlist. If that doesn't happen, then the minister needs to explain to the parliament why they have chosen from outside that shortlist. This is needed for the integrity of our democracy.

Trust in our political system is one of the biggest issues and was one of the biggest issues at the last election. Here on the crossbench, we have been fighting hard in many different ways to rebuild integrity and trust in our political system. I am hopeful that this move by the Attorney-General—and thank you very much—sets a precedent for future important appointments.

I would also say that I strongly support having a review in five years time. I think that's incredibly important as well. Now, with the new amendments, I also am able to give my full support to the Administrative Review Tribunal Bill 2023. I welcome it and welcome very much the work that the Attorney-General and his team have done on this. Thank you.

Zali Steggall (Warringah, Independent) Share this | Link to this | Hansard source

I would like to note and thank the Attorney-General and his office and team for their engagement in relation to the Administrative Review Tribunal Bill 2023 and the subsequent amendments that we now see. As others have said, it is so important that we have trust and faith in important institutions.

As I noted in my speech yesterday, the Administrative Appeals Tribunal plays an incredibly important role because administrative decisions touch on so many areas of people's lives, and it is important that they be able to have a fair appeals process and a timely appeals process at that.

We know that the AAT, as it was, was not working well. As a barrister prior to entering politics, I was very aware of the difficulties and the problems with that body. It had been politically stacked. So I very much supported the Attorney-General's decision to abolish the AAT as it was and replace it with the Administrative Review Tribunal.

But there were several elements that were incredibly important to insert into the bill. It's good to see the government coming to the table constructively and now to see these amendments being presented. The member for Mackellar moved amendments in relation to the appointment process, making sure that we have a robust merits process for these appointments but also an independent panel to ensure that, when the Attorney-General exercises discretion in relation to appointments, it is about picking from people that have been assessed as qualified and capable for the role and not just making a politically stacked appointment.

It is so important that administrative appeal bodies like this are independent, impartial and free from politics. Australians must feel like they're going to get a fair hearing before an administrative review body that can make key decisions affecting their lives.

So the amendments now being moved by the Attorney-General are very much welcome and in large part address a number of the concerns that many of us have had. A concern I raised was in relation to the statutory review. We are where we are because the previous body had fallen so far from its original purpose and intent and was not working well. It was politically stacked. The amendment the Attorney-General has now presented reflects the amendment I was offering, and I very much welcome that, especially in relation to all the engagement that there's been in relation to this issue. I know many individuals and organisations called for such a review clause to be included in the legislation, because we're not infallible and we need to make sure, through a legislated review process, that the intended changes work as they are meant to. I'd like to acknowledge the work of Catherine Williams from the Centre for Public Integrity for the work she's done with my office—and, I assume, with others—in relation to the concerns.

The statutory review clause the government is offering is a little different. Firstly, it's providing for a review to occur within five years rather than three years as I had proposed. But I accept that there is a time line and a process. Secondly, the review panel is left to the minister's discretion. There's no description of what the reviewer's qualifications should be included in the act or the amendment. This is in contrast to the membership of a review panel that I had proposed with my amendments—specifically, that it must comprise three members appointed by the minister and include a former judge of the High Court of Australia, of the Federal Court of Australia or of the supreme court of a state or territory; a person with experience in community advocacy and engagement relating to matters dealt with by this act; and a person with significant knowledge or experience relating to matters dealt with by this act. Those three qualifications would help give confidence that, in the review process, the review panel will have the necessary skills. So I put this question to the Attorney-General: how will he ensure that those appointed as reviewers for the statutory review will be appropriately qualified? What, in fact, does he have in mind or intend in the provision for appointment of a statutory review panel?

Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Link to this | Hansard source

I thank the member for Warringah for her support for the bill and the amendments, and I would seek to answer the question that she's raised about the qualifications of the reviewer. It's a fairly familiar form now in this parliament that, particularly for new institutions or new legislative arrangements, we provide for a statutory review after some years, particularly when we're making substantial changes, as this new model of an Administrative Review Tribunal does. It is important that we go back and check that we are achieving the objectives of the reform. Clause 294A(4) will set out the required qualifications for the reviewer. It will provide that the reviewer must, in the minister's opinion, have the appropriate expertise in administrative review. It's a clause that I think ensures that the review of the act and of the operation of the tribunal will be conducted by an independent reviewer whom the minister has considered to have the appropriate expertise and requisite knowledge to conduct the review.

I think that it's possible to say that over the last 20 years or so, where we have provided for statutory reviews, almost invariably appropriate reviewers are appointed. The greater difficulty is making sure that, when a review is conducted, the government of the day acts on the review report. I have in mind there the excellent review of the Public Interest Disclosure Act was done by Philip Moss. When that bill passed through the parliament in 2013, appropriately, I, in my capacity as Special Minister of State at the time, provided for a review and for a reviewer to be appointed. The former government did appoint an appropriate reviewer in Philip Moss, an eminent Australian public servant, but, sadly, he having produced an excellent review of the Public Interest Disclosure Act in 2016, nothing happened.

Andrew Wilkie (Clark, Independent) Share this | Link to this | Hansard source

Well, it still hasn't happened.

Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Link to this | Hansard source

I take the interjection: about half of the recommended matters in Mr Moss's report have been acted on, and we have a second stage of reforms still to come.

Stephen Bates (Brisbane, Australian Greens) Share this | Link to this | Hansard source

I thank the Attorney-General for these amendments. I really want to home in on the point that previously the Liberal government completely stacked this panel, and I really would like the Attorney-General to explain to the House and to the people of Brisbane how that will not happen again under these amendments. What stops the Labor government from doing the exact same thing?

Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Link to this | Hansard source

Many speakers in the debate on this bill have spoken about what occurred over the last nine years of the former government, and I don't think I need to rehearse that much travelled ground again. We have provided in the bill, strengthened by the amendments I've brought to the House today, for a merit based appointments process for all future appointments to the Administrative Review Tribunal. It's of course the case that any future parliament might choose to again change the method of appointment to this tribunal, but our government is committed to a merit based appointments process. We legislated for merit based appointment processes for the Australian Human Rights Commission, in the first bill I brought to this parliament. We are legislating for merit based appointments processes to be required to be used for all future appointments to this Administrative Review Tribunal should it pass through both houses of our parliament.

By way of further reassurance, I would point to the record of our government since coming to office in that our government has appointed 115 new members to the Administrative Appeals Tribunal by using a merit based appointments process not required by the statute at present. Having a mandatory merit based appointments process in future for the Administrative Review Tribunal will cause our government no difficulty at all. I'd perhaps be able to point to the fact, regarding those 115 appointments made to the Administrative Appeals Tribunal using merit based appointments processes since the last election, there has not to my knowledge been a breath of criticism of any of the 115 quality members who have been appointed to serve on the tribunal.

Ross Vasta (Bonner, Liberal Party) Share this | Link to this | Hansard source

The question is that the amendments be agreed to.

Question agreed to.

Bill, as amended, agreed to.