George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I table a supplementary explanatory memorandum relating to the government amendments to the bill.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I want to ask a question regarding government amendment (1) on sheet EH158, relating to section 9A(3)(1). I am hoping that I am clear in what I am asking there. I apologise, but we did only receive these amendments very recently and I am trying to get my head around them. I am interested in clarifying. Does that particular amendment, which links the definition of the person who made the decision to a specific legislative regime, affect review rights?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

No.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

Apart from that, I do not have particular questions to ask about the government's proposed amendments. I move the Australian Greens amendment (1) on sheet 7680:

(1) Page 6 (after line 5), after clause 3, insert:

4 Review of operation of amendments

(1) The Minister must cause a review of the operation of the amendments made by this Act to be undertaken as soon as practicable after the end of the period of 3 years after the commencement of Schedule 1.

(2) The review must consider:

  (a) the effect of the amendments made by this Act; and

  (b) any other related matter that the Minister specifies.

(3) The person who undertakes the review must give the Minister a written report of the review within 6 months after the end of the 3-year period.

(4) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of receiving it.

This is the amendment that I foreshadowed in my speech in the second reading debate regarding a review of the newly amalgamated tribunal within 24 months of that tribunal being established to give users, practitioners, tribunal members and other interested stakeholders an opportunity to have input as to whether the stated aims of efficiency, efficacy and cost saving have been met, as well as whether or not the other objectives of a fair and reliable tribunal system have been met.

I would urge the committee to support this amendment. As we have heard from various people who have contributed to the debate, it is a significant change. As I indicated too, it is not one that the Greens are necessarily opposed to. I think there is always a risk in these things that, once the deed has been done and significant changes have been made, there are significant aspects that have been lost as well. I would be urging the committee to support the Greens amendment to have a comprehensive review within 24 months of the establishment the tribunal.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

As indicated by Senator Wright, this amendment would require the Attorney-General to order an independent review of the operation of the AAT two years after the bill commences. We thank the Greens for what we think is a sensible amendment. This is a complex piece of legislation. We are dealing with four large bodies; their consolidation can be expected to involve some teething issues. It will be prudent for a review to be conducted after an appropriate time to ensure that the amalgamation is proceeding as intended and that the objectives of the legislation are being achieved.

I note that the amendment does not stipulate who should conduct the review. We would respectfully suggest to the Attorney-General that the appropriate body would be the Administrative Review Council. This organisation, with a long and distinguished background in overseeing Commonwealth administrative law, is well equipped to conduct the proposed review. I notice—I think I indicated it in my contribution to the second reading debate—that this amalgamation proposal, which has a very long history indeed, was first seriously proposed by the ARC in a 1995 report commissioned by the Keating government.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The government does not support this amendment, merely because it is unnecessary. A review is already provided for and $150,000 of funding has already been allocated for the conduct of a review to commence in the 2016-17 year with an obligation to report to government by 31 December 2017. Senator Wright, you propose a review after two years. This was already announced, by the way, in the additional estimates. There is going to be review in 2016-17 with a reporting date of 31 December 2017—you were obviously unaware of it. In view of that, perhaps you might care to reflect on whether you wish to persist with this amendment.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I indicate to the chamber that I do intend to persist with the Greens amendment. It is the view of the Australian Greens that an independent review, certainly conducted by the body that Senator Collins referred to, would be the most appropriate way to proceed, given the significance of the changes that are going to be effected if this legislation is passed.

Question agreed to.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

by leave—I move government amendments (1), (3) to (6) and (8) to (21) on sheet EH158 together:

(1) Schedule 1, page 9 (after line 6), after item 9, insert:

9A Subsection 3(1)

  Insert:

  person who made the decision has a meaning affected by:

  (a) if a review of the decision is or would be an AAT first review within the meaning of the A New Tax System (Family Assistance) (Administration) Act 1999—section 111B of that Act; and

  (b) if a review of the decision is or would be an AAT first review within the meaning of the Paid Parental Leave Act 2010—section 224A of that Act; and

  (c) if a review of the decision is or would be an AAT first review within the meaning of the Social Security (Administration) Act 1999—section 142A of that Act; and

  (d) if a review of the decision is or would be an AAT first review within the meaning of the Student Assistance Act 1973—section 311A of that Act.

(3) Schedule 1, item 27, page 21 (after line 3), after subsection 18B(1), insert:

  (1A) Before the President does so, the President must consult the head of any Division to which the direction would apply.

(4) Schedule 1, item 28, page 27 (after line 3), at the end of section 24A, add:

(4) However, the Registrar must consult with the President in relation to the Registrar's performance of those functions or exercise of those powers.

(5) Schedule 1, item 40, page 30, (lines 1 and 2), omit the item, substitute:

40 Subsection 25(4)

  Repeal the section.

40A Subsection 25(6)

  After "29,", insert "29AB, 29AC,".

(6) Schedule 1, item 46, page 31 (lines 20 and 21), omit "and the proceeding is not a child support first review".

(8) Schedule 3, page 101 (after line 17), after item 4, insert:

4A Subsection 23(1) (paragraphs (a) and (b) of the definition of Secretary )

  Omit "Division 4 of Part 4", substitute "Subdivision D of Division 2 of Part 4A".

(9) Schedule 3, page 106 (after line 17), after item 35, insert:

35A After section 142

  Insert:

142A Person who made the decision

     For the purposes of AAT first review of a decision, a reference in the AAT Act to the person who made the decision is taken to be a reference to:

  (a) the Secretary; and

  (b) if the decision was made by the Chief Executive Centrelink or a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997) as a delegate of the Secretary or the Employment Secretary—the Chief Executive Centrelink.

(10) Schedule 5, item 22, page 150 (after line 20), before section 112, insert:

21A Before section 112

  Insert:

111B Person who made the decision

     For the purposes of AAT first review of a decision, a reference in the AAT Act to the person who made the decision is taken to be a reference to the Secretary.

(11) Schedule 5, item 22, page 153 (after line 10), after section 116, insert:

116A Parties to AAT first review

     The parties to an AAT first review of a care percentage decision include, in addition to the parties referred to in subsection 30(1) of the AAT Act, each person who is a responsible person (within the meaning of the Child Support (Assessment) Act 1989) for the child to whom the decision relates.

(12) Schedule 6, item 20, page 172 (after line 15), before section 225, insert:

224A Person who made the decision

     For the purposes of AAT first review of a decision, a reference in the AAT Act to the person who made the decision is taken to be a reference to:

  (a) the Secretary; and

  (b) either of the following, if applicable:

     (i) if the decision was made by the Chief Executive Centrelink or an APS employee in the Human Services Department—the Chief Executive Centrelink;

     (ii) if the decision was made by the Chief Executive Medicare—the Chief Executive Medicare.

(13) Schedule 7, item 11, page 184, (after line 16), after section 311, insert:

311A Person who made the decision

     For the purposes of AAT first review of a decision, a reference in the AAT Act to the person who made the decision is taken to be a reference to the Secretary.

(14) Schedule 9, page 204 (before line 4), before item 1, insert:

Part 1—Preliminary

(15) Schedule 9, item 1, page 204 (after line 7), after the definition of AAT Act, insert:

  affected law:

  (a) means an Act that this Act amends; and

  (b) includes an instrument made under such an Act.

(16) Schedule 9, item 1, page 204 (after line 17), after the definition of Deputy Principal SSAT member, insert:

  discontinued Tribunal means the MRT, RRT or SSAT.

(17) Schedule 9, item 1, page 205 (after line 3), after the definition of MRT member, insert:

  officer, in relation to the SSAT, means a person who performs functions or exercises powers of the SSAT or performs duties for the SSAT.

(18) Schedule 9, item 1, page 205 (after line 5), after the definition of President of the AAT, insert:

  proceeding includes any of the following:

  (a) an application or purported application made to a discontinued Tribunal under an Act;

  (b) a matter referred to a discontinued Tribunal for inquiry or review under an Act;

  (c) an incidental application to a discontinued Tribunal made in the course of, or in connection with, an application or proposed application, or matter, referred to in paragraph (a) or (b).

For this purpose, a reference to a proceeding that is before a tribunal includes a reference to an application made or matter referred to the tribunal.

(19) Schedule 9, page 205 (after line 29), after item 2, insert:

Part 2—Tribunal members and certain officers

(20) Schedule 9, item 13, page 214 (after line 8), after subitem (3), insert:

  (3A) Despite subitem (3), the Minister may, by writing, determine different terms and conditions (other than terms and conditions covered by a determination referred to in subitem (3B)) that are to apply to the person for any part of the remaining balance of the person's term of appointment.

  (3B) A determination in operation under the Remuneration Tribunal Act 1973 immediately before the commencement day in relation to the person:

  (a) continues in operation until another determination comes into operation in substitution for it; and

  (b) before then, may be varied in accordance with that Act.

(21) Schedule 9, page 214 (after line 24), after item 15, insert:

Part 3—Review of decisions

15AA General provision—application of amendments from commencement day

(1) Except as otherwise provided by this Schedule, the amendments made by this Act apply on and after the commencement day:

  (a) including in relation to proceedings commenced before the commencement day; and

  (b) including in relation to decisions made before the commencement day.

(2) However, and despite anything else in this Schedule, an amendment or insertion of an offence by this Act does not apply in relation to conduct engaged in before the commencement day.

15AB General provision—continuation in AAT of proceedings before discontinued Tribunals

(1) This item applies to a proceeding that was before a discontinued Tribunal immediately before the commencement day.

(2) From the start of the commencement day, the proceeding:

  (a) is taken to be a proceeding (a continued proceeding) before the AAT; and

  (b) if the proceeding was before the MRT or RRT—is taken to be a proceeding in the Migration and Refugee Division; and

  (c) if the proceeding was before the SSAT:

     (i) is taken to be a proceeding in the Social Services and Child Support Division; and

     (ii) except to the extent it is not a proceeding for review of a decision—is taken to be a proceeding on application for AAT first review within the meaning of the Act that authorised the application for review.

(3) Anything done by the discontinued Tribunal or a member or officer of the discontinued Tribunal for the purposes of the proceeding is taken, for the purposes of the continued proceeding and the operation of an affected law on and after the commencement day:

  (a) to have been done, at the time it was done by the discontinued Tribunal or member or officer, by the AAT or a member or officer of the AAT for the purposes of the continued proceeding; and

  (b) to have effect accordingly under an affected law.

(4) Anything done by the applicant, another party to the proceeding or any other person for the purposes of the proceeding is taken, for the purposes of the continued proceeding and the operation of an affected law on and after the commencement day:

  (a) to have been done, at the time it was done by the applicant, other party or person, by the applicant, other party or person for the purposes of the continued proceeding; and

  (b) to have effect accordingly under an affected law.

(5) Without limiting subitem (3) or (4), if, immediately before the commencement day:

  (a) a discontinued Tribunal or a member or officer of a discontinued Tribunal had not yet met a requirement that was imposed on the Tribunal, member or officer by an affected law in relation to the proceeding; or

  (b) a discontinued Tribunal or a member or officer of a discontinued Tribunal had not yet responded to a request or invitation under an affected law to do something in relation to the proceeding;

  then, except to the extent to which no such requirement, request or invitation is imposed or authorised by an affected law as amended by this Act, the AAT or a member or officer of the AAT must meet the requirement, or may respond to the request or invitation, for the purposes of the continued proceeding as if the requirement, request or invitation had been imposed or authorised by a provision of an affected law as amended by this Act.

(6) Without limiting subitem (3) or (4), if, immediately before the commencement day:

  (a) a person had not yet met a requirement that was imposed on the person by an affected law in relation to the proceeding; or

  (b) a person had not yet responded to a request or invitation issued under an affected law to do something in relation to the proceeding;

  then, except to the extent to which no such requirement, request or invitation is imposed or authorised by an affected law as amended by this Act, the person must meet the requirement, or may respond to the request or invitation, for the purposes of the continued proceeding as if the requirement, request or invitation had been imposed or authorised by a provision of an affected law as amended by this Act.

(7) Without limiting subitem (3) or (4), if, before the commencement day, a discontinued Tribunal or a member or officer of a discontinued Tribunal had met a requirement imposed by an affected law to give a notice or document to a person, then, from the start of the commencement day, the requirement is taken to have been met, at the time it was met by the discontinued Tribunal or member or officer, by (as applicable under the affected law as amended by this Act) the AAT or a member or officer of the AAT.

(8) Without limiting subitem (3) or (4), if, before the commencement day, a person had received or was taken to have received a notice or document from a discontinued Tribunal or a member or officer of a discontinued Tribunal, then, from the start of the commencement day, the person is taken to have received the document, at the time it was received or taken to have been received, from (as applicable under the affected law as amended by this Act) the AAT or a member or officer of the AAT.

(9) This item does not apply to the extent to which another item of this Schedule (other than item 15AC) has a different effect.

15AC General provision—operation of affected law in relation to things done etc. before commencement day

(1) For the purposes of the operation of an affected law on or after the commencement day:

  (a) a reference to a decision that is or would be reviewable by the AAT includes a reference to a decision made before the commencement day that was or would have been reviewable by a discontinued Tribunal; and

  (b) a reference to a decision made or other thing done by or in relation to the AAT includes a reference to a decision made or other thing done before the commencement day by or in relation to a discontinued Tribunal.

(2) For the purposes of subitem (1), it does not matter whether the AAT is expressly referred to, or referred to by that exact expression.

(3) Without limiting subitem (1), if, immediately before the commencement day, a person was entitled under an Act to make an application to the AAT or a discontinued Tribunal for review of a decision made before the commencement day, the person may make an application for review of the decision to the AAT on or after the commencement day in accordance with the Act as amended by this Act.

(4) To avoid doubt, neither paragraph (1)(a) nor subitem (3) of itself authorises an application to be made to the AAT for review of a decision. In particular, it does not authorise an application to be made in circumstances referred to in item 15AD.

(5) Subitem (1) does not apply to the extent to which item 15AB applies.

15AD Duplicate applications for review

(1) A person may not make an application to the AAT for review of a decision on or after the commencement day if the person made an application or a purported application to a discontinued Tribunal for review of the decision before the commencement day.

(2) A person may not make an application to the AAT for review of a decision on or after the commencement day if:

  (a) the time for the person to apply to a discontinued Tribunal for review of the decision had expired before the commencement day without such an application having been made; and

  (b) there is no enactment that permits the AAT to extend the time for making the application.

(3) Subitems (1) and (2) do not prevent a person from making an application to the AAT for second review of a decision made by the AAT in a proceeding referred to in paragraph 15AB(2)(c).

15AE Notices referring to discontinued Tribunal

(1) This item applies to a notice given to a person before, on or after the commencement day if:

  (a) the notice includes a statement to the effect that the person is entitled to apply for review of a decision to a discontinued Tribunal; and

  (b) the last day for the person to make such an application is on or after the commencement day, or there is no time limit for the person to make such an application.

(2) On and after the commencement day, the notice is taken to meet any requirement in an affected law to give a person a notice that includes a statement to the effect that the person is entitled to apply for review of the decision to the AAT.

15AF Continuation of Immigration Assessment Authority

  Although this Act has the effect that the Immigration Assessment Authority is established from the start of the commencement day within the AAT rather than the RRT, this does not affect:

  (a) the continued existence of the Authority on and after the commencement day; or

  (b) a review that was being conducted by the Authority immediately before the commencement day; or

  (c) the ongoing effect on and after the commencement day of anything else done by or in relation to the Authority, its Principal Member or a reviewer before the commencement day.

15AG Remission of discontinued Tribunal decisions

  A decision of a discontinued Tribunal that a court decides on or after the commencement day to remit for reconsideration is to be remitted to the AAT.

Part 4—Matters specific to particular Acts

15BA Relationship between this Part and Part 3

  An item in this Part that has the same effect as an item in Part 3 in relation to a particular matter does not limit the operation of the item in Part 3 in relation to any other matter.

15BB Continued protection of confidential information of discontinued Tribunals

(1) If, immediately before the commencement day, any of the following provisions applied to a person:

  (a) section 377 of the Migration Act 1958;

  (b) section 439 of the Migration Act 1958;

  (c) clause 19 of Schedule 3 to the Social Security (Administration) Act 1999;

  the provision as in force immediately before the commencement day continues to apply to the person on and after the commencement day, in relation to information or documents obtained before that day, despite the repeal of the provision by this Act.

(2) For the purposes of the continued operation of clause 19 of Schedule 3 to the Social Security (Administration) Act 1999, clause 19A also continues to apply.

15BC Changes to AAT Divisions

  A proceeding that was before the AAT immediately before the commencement day in a Division referred to in column 1 of the table is taken, from the start of the commencement day, to be a proceeding before the AAT in the Division referred to in column 2 of the table.

15BD Small Taxation Claims Tribunal

  If, immediately before the commencement day, an order was in force under subsection 24AD(1) of the AAT Act in relation to an application for review of a relevant taxation decision, then, despite the amendments made by this Act, paragraphs 24AD(2)(b) and (c) and subsection 24AD(3) of the AAT Act as in force immediately before the commencement day continue to apply on and after the commencement day in relation to the application for review.

15BE Continuation of provisions regarding presiding members

  If, immediately before the commencement day, a person was presiding in relation to a proceeding before the AAT because of any of the following provisions of the AAT Act:

  (a) paragraph 21AB(9)(a), (b) or (c);

  (b) paragraph 22(1)(a), (aa) or (b);

  (c) subparagraph 22(1)(c)(i);

  then the provision continues to apply in relation to the proceeding on and after the commencement day despite the amendments made by this Act.

15BF Limit on new AAT Act powers in relation to agreements

     The following provisions of the AAT Act as amended by this Act do not apply in relation to a decision made by the AAT before the commencement day:

  (a) subsection 34D(4);

  (b) subsection 42C(5).

15BG Notices and summonses under amended provisions of AAT Act

(1) If, before the commencement day, a notice was given under subsection 29(11) of the AAT Act, then, from the start of the commencement day, the notice is taken to have been given, at the time it was given, under section 29AC of the AAT Act as amended by this Act.

(2) If, immediately before the commencement day, in relation to an order made by the AAT under section 38 of the AAT Act, the period for lodging an additional statement has not ended and the person has not yet lodged the additional statement, then:

  (a) the order continues in effect on and after the commencement day despite the amendments made by this Act; and

  (b) from the start of the commencement day, the order is taken to have been given, at the time it was given, under section 38 of the AAT Act as amended by this Act.

(3) If, immediately before the commencement day, in relation to a summons issued under subsection 40(1A) of the AAT Act:

  (a) the period for complying with the summons had not ended and the person had not yet complied; or

  (b) the occasion for complying with the summons had not arisen;

  then:

  (c) the summons continues in effect on and after the commencement day despite the amendments made by this Act; and

  (d) from the start of the commencement day, the summons is taken to have been given, at the time it was given, under section 40A of the AAT Act as amended by this Act.

15BI Ongoing requirement for lodging material documents with AAT

(1) Section 38AA of the AAT Act applies in relation to documents a person obtains possession of on or after the commencement day.

(2) Section 38AA of the AAT Act also applies in relation to documents a person obtained before the commencement day, if, immediately before the commencement day:

  (a) a requirement to give the documents to the SSAT was imposed on the person by an affected law in relation to a proceeding before the AAT; and

  (b) the person had not yet met the requirement; and

  (c) item 15AB of this Schedule has the effect that the person must meet the requirement in relation to the proceeding as continued before the AAT by that item.

15BJ Application for reinstatement

  The amendments of the AAT Act made by item 114 of Schedule 1 to this Act apply in relation to the dismissal of an application whether the dismissal occurred before, on or after the commencement day.

15BK Changes to penalties in the AAT Act

  The following provisions of the AAT Act as in force before the commencement day continue to apply in relation to conduct engaged in before that day, despite the amendments made by this Act:

  (a) section 61;

  (b) section 62;

  (c) section 62A;

  (d) section 62B;

  (e) section 63.

15BL Section 67 of the AAT Act

  Regulations made before the commencement day for the purposes of section 67 of the AAT Act continue in force on and after the commencement day in relation to a summons issued before that day, despite the amendment by this Act of section 67 of that Act.

15BM Character of privative clause and other decisions under the Migration Act 1958

  If a decision made before the commencement day was, when made:

  (a) a privative clause decision; or

  (b) a purported privative clause decision; or

  (c) a non-privative clause decision;

  within the meaning of the Migration Act 1958 at that time, the decision continues to be such a decision on and after the commencement day despite the amendments made by this Act. The Migration Act 1958 applies in relation to the decision accordingly.

15BN Sections 351 and 417 of the Migration Act 1958

  The Minister referred to in section 351 or 417 of the Migration Act 1958 may exercise a power conferred by that section on or after the commencement day in relation to a decision made by a discontinued Tribunal before the commencement day.

15BO Sections 477, 477A and 486A of the Migration Act 1958

  If, immediately before the commencement day, a particular date was, for a migration decision, the date of the migration decision for the purposes of section 477, 477A or 486A of the Migration Act 1958, that particular date continues to be the date of the migration decision for the purposes of the section on and after the commencement day, despite the amendment by this Act of the definition of date of the migration decision in subsection 477(3) of the Migration Act 1958.

15BP Section 486D of the Migration Act 1958

  For the purposes of the operation of section 486D of the Migration Act 1958 on and after the commencement day, and despite the amendment by this Act of the definition of tribunal decision in subsection 486D(5) of the Migration Act 1958, a reference to a tribunal decision includes a reference to a decision made before the commencement day by:

  (a) the MRT; or

  (b) the RRT; or

  (c) the Immigration Assessment Authority as established within the RRT.

15BQ Continuation of payment declarations

(1) If, immediately before the commencement day, a declaration under section 112 of the A New Tax System (Family Assistance) (Administration) Act 1999 was in effect in connection with a person's application for review of a decision, the declaration continues in effect on and after the commencement day, as if the declaration had been made:

  (a) under section 113 of that Act as amended by this Act; and

  (b) in connection with the application as continued in the AAT by item 15AB of this Schedule.

(2) If, immediately before the commencement day, a declaration under section 145 of the Social Security (Administration) Act 1999 was in effect in connection with a person's application for review of a decision, the declaration continues in effect on and after the commencement day, as if the declaration had been made:

  (a) under section 145 of that Act as amended by this Act; and

  (b) in connection with the application as continued in the AAT by item 15AB of this Schedule.

(3) If, immediately before the commencement day, a declaration under section 314 of the Student Assistance Act 1973 was in effect in connection with a person's application for review of a decision, the declaration continues in effect on and after the commencement day, as if the declaration had been made:

  (a) under section 314 of that Act as amended by this Act; and

  (b) in connection with the application as continued in the AAT by item 15AB of this Schedule.

15BR Review by AAT of SSAT decisions

(1) If, on or after the commencement day, a person makes an application to the AAT for review of a decision made by the SSAT before the commencement day:

  (a) the application is taken to be an application for:

     (i) AAT second review within the meaning of the Act that (together with this Act) authorised the making of the application; and

     (ii) second review within the meaning of the AAT Act; and

  (b) the amendments of those Acts made by this Act apply in relation to the application.

(2) If, immediately before the commencement day, a proceeding is before the AAT for review of a decision made by the SSAT, then, from the start of the commencement day:

  (a) the proceeding is taken to be a proceeding for:

     (i) AAT second review within the meaning of the Act that (together with this Act) authorised the making of the application for review; and

     (ii) second review within the meaning of the AAT Act; and

  (b) the amendments of those Acts made by this Act apply in relation to the proceeding.

15BS Subsection 109D(6) of the A New Tax System (Family Assistance) (Administration) Act 1999

  A decision that, immediately before the commencement day, was an excepted decision within the meaning of subsection 109D(6) of the A New Tax System (Family Assistance) (Administration) Act 1999 continues to be an excepted decision on and after the commencement day, despite the amendments made by this Act.

15BT Saving provision for regulations under section 103T of the Child Support (Registration and Collection) Act 1988

  Despite the repeal of section 103T of the Child Support (Registration and Collection) Act 1988 by this Act, a provision referred to in a regulation in force immediately before the commencement day for the purposes of that section is taken, on and after the commencement day and until the regulation referring to the provision is amended or repealed, to be a prescribed provision for the purposes of section 95E of that Act.

Part 5—Continuation of directions

15CA Continuation of AAT directions

(1) A direction given by the President of the AAT under section 20 or 34C of the AAT Act that was in effect immediately before the commencement day continues in effect on and after the commencement day for the purposes of any proceeding before the AAT, other than a proceeding in the Migration and Refugee Division or the Social Services and Child Support Division, as if it had been given by the President:

  (a) under section 18B of the AAT Act as amended by this Act; or

  (b) to the extent to which a direction made under section 34C relates to the person who is to conduct an alternative dispute resolution process—under subsection 34A(2) of the AAT Act as amended by this Act.

(2) A direction given by the President of the AAT under any of the following provisions that was in effect immediately before the commencement day continues in effect on and after the commencement day, as if it had been given under section 19A of the AAT Act as amended by this Act:

  (a) section 20B;

  (b) subsection 21AA(6);

  (c) subsection 21AB(6);

  (d) subsection 21AB(9);

  (e) subsection 21AB(10);

  (f) subsection 21A(3);

  (g) subsection 21A(9);

  (h) section 22;

  (i) section 23;

  (j) section 23A.

(3) A direction given by the President of the AAT under section 23F of the AAT Act that was in effect immediately before the commencement day continues in effect on and after the commencement day, as if it had been given under section 19C of the AAT Act as amended by this Act.

(4) Any other direction or order given by the AAT or the President of the AAT that was in effect immediately before the commencement day for the purposes of a proceeding before the AAT continues in effect on and after the commencement day for the purposes of that proceeding, as if it had been given by the AAT or the President under a provision of the AAT Act as amended by this Act that authorises the making of such a direction or order.

15CB Continuation of Principal Member directions constituting a discontinued Tribunal

(1) This item applies in relation to a direction that:

  (a) was given before the commencement day by the Principal Member of a discontinued Tribunal and did either or both of the following for the purposes of a proceeding:

     (i) constituted the discontinued Tribunal;

     (ii) specified the presiding member of the discontinued Tribunal; and

  (b) was in effect immediately before the commencement day.

(2) Despite the amendments made by this Act, the direction continues in effect on and after the commencement day for the purposes of the proceeding as continued before the AAT by item 15AB of this Schedule, as if:

  (a) the direction had been given by the President of the AAT under section 19A of the AAT Act as amended by this Act; and

  (b) references to the discontinued Tr

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

Senator Brandis, in the interest of facilitating the running of the committee, I would invite you to move amendments (2) and (7) on sheet EH158 also.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

by leave—The government oppose schedule 1 in the following terms:

(2) Schedule 1, item 19, page 11 (lines 21 and 22), to be opposed.

(7) Schedule 1, items 64 and 65, page 36 (lines 12 to 17), to be opposed.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

Labor will be supporting the government amendments, which, as Senator Brandis indicated, cover some minor inconsequential matters and transitional issues in relation to the bill. I should clarify, though, that my understanding in relation to opposition amendments is that the amendment that Senator Brandis referred to in relation to the seven-year terms is not actually within this bundle of amendments. My most recent advice is that we will be dealing with them in the opposition's amendment, with government support.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I am sorry, Senator Collins, there seems to be a little bit of confusion: my advice is to the contrary.

The TEMPORARY CHAIRMAN: We do have quite a broad suite of opposition amendments. We will deal with the initial question whilst the minister is getting advice.

I am told they are in government amendments (5) and (2), Senator Collins.

The TEMPORARY CHAIRMAN: Just to be clear for the committee, we are considering government amendments. The question is that amendments (1), (3) to (6) and (8) to (21) on sheet EH158 be agreed to.

Question agreed to.

The TEMPORARY CHAIRMAN: I will now put the question in relation to amendments (2) and (7) on sheet EH158. The question is that items 19, 64 and 65 of schedule 1 stand as printed.

Question negatived.

The TEMPORARY CHAIRMAN: We will now go to opposition amendment (1) on sheet 7696.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

I can indicate that we will not be proceeding with that amendment. The issues that we clarified earlier with the government and that this is incorporated in the government's batch of amendments, as Senator Brandis indicated when he moved the last batch, has satisfied our concerns on that one.

The TEMPORARY CHAIRMAN: Senator Collins, it appears to me that the Clerk is looking earnestly in your direction and it may be an opportunity for some advice to be given.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The ball is in your court, Jacinta.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

We are happy to move to the next amendment, which is opposition amendment (2). I should say that there should be a revised amendment being circulated.

The TEMPORARY CHAIRMAN: Senator Collins, I understand that it has a new sheet number, 7696, which is what I referred to and what I was prompting you to move previously. It is now amendment (1).

I move opposition amendment (1) on sheet 7696:

(1) Schedule 1, item 26, page 14 (lines 2 to 6), omit subsection 13(1), substitute:

(1) The Governor-General may terminate the appointment of a member if an address praying for the termination, on one of the following grounds, is presented to the Governor-General by each House of the Parliament in the same session:

  (a) proved misbehaviour;

  (b) the member is unable to perform the duties of his or her office because of physical or mental incapacity.

This amendment has been revised to reflect some advice we received back from the government about the most appropriate way to deal with the termination of a member but without compromising disability discrimination matters. My original advice, if it please the Senate, was that it was perhaps a bit too late to do this. I did not accept that that was the case, Attorney, and so we have sought through this revision to accept your advice on this point.

This amendment reflects a recommendation contained in the Labor senators' additional comments to the report of the Senate Legal and Constitutional Affairs Legislation Committee. It would retain the current arrangements for dismissal of AAT members only on the address of each house of parliament, with the change I referred to a moment ago so that we are accommodating changes to disability discrimination matters. The bill would allow dismissal simply by the Governor-General.

Participants in the committee process raised concerns about the new arrangement proposed in the bill. Again, the explanatory memorandum explains that this change is intended to reflect standard practice with other statutory officers. However, this proposed change goes to the independence of the tribunal, which has a role very distinct from many other statutory bodies. No case has been made either in the committee or in this place which would justify departing from the current arrangements in the AAT.

The explanatory memorandum also makes the point that in the SSAT and the MRT-RRT removal of members is already by the Governor-General alone. However, as I said, I think in my second reading contribution, Labor believe that the amalgamation should see standards of independence raised across the board where possible and we see no reason to depart from the current practice in the AAT.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I indicate that the Australian Greens strongly support this amendment from the opposition. As I said in my second reading contribution, the independence of tribunals across Australia is absolutely fundamental to respect for the rule of law. I think this amendment does enhance the independence and security of tenure of tribunal members for the length of their appointment. I commend the opposition for moving this amendment.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

This is not controversial. The government supports this amendment, and of course we support the independence of the tribunal. I do not know why Senator Wright raises an issue about this, because I am unaware of any suggestion that the AAT or the other merits review tribunals which will be amalgamated with it have ever had their independence compromised. It has never been suggested. Permitting members to be terminated for mental or physical incapacity only on an address by both houses of parliament is the established practice. It is a good practice in the view of the government. I note in passing the submissions of the Law Institute of Victoria and the Bar Association of Queensland, among others, who have commended this approach. This is an amendment that the government agrees to.

The TEMPORARY CHAIRMAN: The question is that amendment (1) on sheet 7696 be agreed to.

Question agreed to.

The TEMPORARY CHAIRMAN: We will now move to opposition amendment (2) on sheet 7673.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

We will not be proceeding with that one on the basis that we dealt with the substantive matter in the previous amendment.

The TEMPORARY CHAIRMAN: Thank you, Senator Collins. We will now move to opposition amendments (3) to (6) on sheet 7673.

by leave—I move opposition amendments (3) to (6) together:

(3) Schedule 1, item 27, page 16 (before line 7), before paragraph 17A(a), insert:

     (aa) Freedom of Information Division;

(4) Schedule 1, item 27, page 17 (after line 13), after section 17C, insert:

17CA Assignment to Freedom of Information Division

     The Minister must not assign a member to the Freedom of Information Division unless the Minister is satisfied that the member:

  (a) has training, knowledge or experience relating to the Freedom of Information Act 1982; or

  (b) has other relevant knowledge or experience that will assist the member in considering matters relating to the operation of that Act.

(5) Schedule 1, item 27, page 19 (line 3), omit "subsection 17E(2) or section 17F", substitute "section 17CA, subsection 17E(2) or section 17F".

(6) Schedule 1, item 27, page 19 (line 32), omit "subsection 17E(2) or section 17F", substitute "section 17CA, subsection 17E(2) or section 17F".

These amendments reflect a recommendation contained in the Labor senators' additional comments to the report of the Senate Legal and Constitutional Affairs Legislation Committee. It would create a specialist division of the AAT to deal with freedom of information matters.

Labor moves this amendment to deal with the fallout from the government's Freedom of Information Amendment (New Arrangements) Bill 2014, which would abolish the Office of the Australian Information Commissioner and make the AAT the first port of call for those seeking independent review of FOI decisions. We oppose that bill and the crossbench opposes the bill. The government has been unable to explain, in the face of its failure to pass the ill-fated measure from last year's budget, how it will proceed. If the government is happy to undertake now that it will withdraw its freedom of information bill, the need for this amendment will fall way. But whilst the government persists with that bill this amendment is necessary. If the AAT is to be the main jurisdiction for handling FOI appeals, we must support the AAT to develop sufficient expertise, experience and specialisation in handling those matters. This amendment would go some way towards achieving that, though we are clear that the best case scenario is the withdrawal of the freedom of information bill itself.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The government is happy to support this amendment. We think it is not strictly necessary. What it does is establish in addition to the six core divisions of the tribunal an additional division dealing with Freedom of Information Act matters. Senator Collins refers to the government's proposal to abolish the Office of the Australian Information Commissioner. Although this is perhaps not the place to have that debate, can I respond to the observation you have made, Senator Collins, by pointing out the anomaly in the existing law that, unlike almost every other area of merits review, there was a double level of merits review in relation to FOI matters. If the government's other legislation would be passed, there would be a single level of merits review, and that merits review would be conducted by the AAT. You propose that there be an FOI division. We would have thought that that could be perfectly well accommodated within the general division of the AAT. Nevertheless, rather than have a fight about it, if you are of the view that there should be an FOI division, as well as the other six divisions, of the AAT, we are happy to support your proposal.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I indicate that the Australian Greens support this amendment.

The TEMPORARY CHAIRMAN: The question is that opposition amendments (3) to (6) on sheet 7673 be agreed to.

Question agreed to.

The TEMPORARY CHAIRMAN: We now move to opposition amendment (7) on sheet 7673.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

The opposition opposes schedule 1 in the following terms:

(7) Schedule 1, item 30, page 27 (lines 10 and 11), to be opposed.

This amendment reflects a recommendation contained in the Labor senators' additional comments to the Legal and Constitutional Affairs Legislation Committee's report. The bill, for no clear reason we can discern, removes the present requirement for the registrar of the court to be appointed on the nomination of the president. This amendment would retain the present arrangement. Again, this amendment goes to the independence of the tribunal and, again, the explanatory memorandum to the bill explains that the nomination requirement in the current AAT Act is not a standard feature of statutory appointments. But, as we say, AAT appointments are not standard statutory appointments. The registrar is tasked by section 24B of the AAT Act with assisting the president in the management of the tribunal. This relationship and, by extension, the position of the president and the independence of the tribunal is protected by the nomination requirement in the act. No compelling reason has been provided for why this practice should be departed from.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The government supports this amendment. In practice, as is the case with federal courts, invariably the views of the head of jurisdiction would be consulted. They will be consulted whether there is a statutory requirement or not. We see no harm in having the statutory requirement, but the requirement merely reflects existing practice.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

The Australian Greens will also be supporting this amendment.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that item 30 of schedule 1 stand as printed.

Question negatived.

The TEMPORARY CHAIRMAN: We now move to opposition amendments (9) to (11) and (13) on sheet 7673.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

by leave—I move opposition amendments (9) to (11) and (13) together:

(9) Schedule 1, item 125, page 52 (line 13), after "(see section 44AAA)", insert "or to the Family Court (see section 44AAB)".

(10) Schedule 1, item 129, page 53 (after line 7), at the end of subsection 44AAA(1), add:

Note: A party to the proceeding may also apply to the Family Court of Australia, see section 44AAB.

(11) Schedule 1, item 129, page 53 (after line 21), after section 44AAA, insert:

44AAB Appeals to Family Court from decisions of the Tribunal in relation to child support first reviews

  (1) If the Tribunal as constituted for the purposes of a proceeding that is a child support first review does not consist of or include a presidential member, a party to the proceeding may appeal to the Family Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

Note: A party to the proceeding may also apply to the Federal Circuit Court of Australia, see section 44AAA.

  (2) The following provisions of this Part apply in relation to any such appeal as if the appeal were an appeal under subsection 44(1) and a reference in those provisions to the Federal Court of Australia were a reference to the Family Court of Australia:

     (a) subsections 44(2A) to (10) (other than paragraphs 44(3)(a) to (c));

     (b) section 44A (other than subsection (2A));

     (c) paragraphs 46(1)(a) and (b).

  (3) Paragraph 44(2A)(b) applies in relation to any such appeal as if the reference in that paragraph to rules of court made under the Federal Court of Australia Act 1976 were a reference to rules of court made under the Family Law Act 1975.

  (4) Subsection (1) does not affect the operation of subsection 44(1) in relation to a proceeding that is a child support first review.

(13) Schedule 4, item 68, page 142 (line 6), omit "paragraph 44AAA(2)(b)", substitute "paragraphs 44AAA(2)(b) and 44AAB(2)(b)".

These amendments reflect the recommendation contained in the Labor senators' additional comments. The amendments would retain current arrangements for the jurisdiction of the Family Court in referrals of law relating to child support matters and appeals from jurisdiction review applications of the AAT in decisions relating to child support matters. We understand the government's attraction to the simplicity of having just one line of appeal out of the AAT. We see the appeal of simplicity and uniformity, but we do not want litigants or practitioners to be confused by appeal arrangements.

However, we note that the Family Court has raised serious objections to this proposal, which have not been adequately answered by the government—unless, Senator Brandis, they are in the revised explanatory memorandum, which I have not had a chance to address. The Family Court rightly notes that it has great expertise in child support matters and is therefore the natural jurisdiction. We are not convinced that this consideration is outweighed by the appeal of simplicity and streamlining. We would hope that the government would be able to come to the review of the amalgamation, which we propose for two years hence, and make a case for this change, if experience shows that it is required at that stage.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

The Australian Greens will be supporting this amendment.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The government does not support this amendment, because in our view it is unnecessary and will complicate the system for judicial review of tribunal decisions. The number of appeals heard by the Family Court in child support matters at the moment is very small—not more than about two per year. In practice, almost all child support appeals from the tribunal go to the Federal Circuit Court. Transferring the child support appeals workload to the Federal Court makes sense. These appeals are first and foremost about judicial review of decision making. The Federal Court has expertise in administrative law matters across a wide range of subjects and will capably handle these appeals within its existing resources. The Family Court will be free to focus on the more complex and intractable disputes between parties in relation to property and the shared care of children, which is where its core expertise lies.

I suppose this is a question of characterisation: ought this to be characterised as primarily dealing with child support matters or is the task to be characterised as the appropriate application of administrative law principles? We take the view that the appropriate characterisation is the latter, which is why we do not support this amendment. In our view, the amendment would result in child support matters being treated as both family law matters and administrative law matters with appeals available in two superior courts, which also raises the risk of inconsistent treatment of the same subject matter. For the reasons I have outlined, I hope that explains to you, Senator Collins, why the government does not support the amendment you have moved.

The TEMPORARY CHAIRMAN: The question is that opposition amendments (9) to (11) and (13) on sheet 7673 be agreed to.

Question negatived.

The TEMPORARY CHAIRMAN: We now move to opposition amendment (12) on sheet 7673.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

I am not proceeding with this amendment on the basis that the previous amendments failed.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.