• amend the Administrative Review Tribunal Act to provide for a number of operational changes
• amend Commonwealth Acts across a number of portfolios to standardise timeframes for applying to the ART (though the Explanatory Memorandum (p. 7) provides that these amendments ‘do not reduce existing timeframes to apply for review’)
• provide immunities for nominated ART members exercising certain functions under the Crimes Act 1914 in a personal capacity
• removing time limits for seeking internal and ART review for Aboriginal Study Grants Scheme and Assistance for Isolated Children debt decisions
• require decision-makers under the Migration Act 1958 to participate in guidance and appeals panel proceedings and
• legislating the requirements for applications for review of reviewable migration and reviewable protection decisions under the Migration Act, including that the ART will not have the power to review an application that does not meet these requirements.

The Bill also makes a number of other administrative changes which are set out in further detail in the Explanatory Memorandum.

Background

In May 2024, the Parliament enacted the following Acts which established the ART and provided for its operation:

• the Administrative Review Tribunal Act 2024
• the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 and
• the Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Act 2024.

The ART will replace the existing Administrative Appeals Tribunal (AAT) when it commences operation on 14 October 2024. The jurisdiction of the ART will be the same as the AAT, which reviews decisions made under a wide range of Commonwealth Acts and instruments, including in areas of child support, workers’ compensation, social security, the National Disability Insurance Scheme (NDIS), migration and refugee visas, taxation, security and veterans’ entitlements.
The legislation was subject to parliamentary consideration through:

• the House of Representatives Standing Committee on Social Policy and Legal Affairs, which recommended the House of Representatives pass the then Administrative Review Tribunal Bill 2023 (ART Bill) and the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023 without amendment
• the Parliamentary Joint Committee on Human Rights, which has considered all 3 Bills (see Human rights scrutiny report No. 1 2024 (pp. 15–42) and Human rights scrutiny report No. 2 2024 (pp. 9–13))
• the Senate Standing Committee for the Scrutiny of Bills, which has considered all 3 Bills (see Scrutiny Digest 2 of 2024(pp. 2–28); Scrutiny Digest 3 of 2024 (pp. 2–7); Scrutiny Digest 5 of 2024 (pp. 21, 24–50); and Scrutiny Digest 6 of 2024 (pp. 59–65))
• the Senate Standing Committee on Legal and Constitutional Affairs, which considered all 3 Bills and recommended the Senate pass the Bills, with 2 additional recommendations.

For further background, including a history of the AAT, stakeholder commentary and key issues, see the Bills Digest for the ART Bill and associated Bills.

Key issues and provisions

While the majority of amendments contained in the Bill appear to be administrative in nature, Part 12, Schedule 2 of the Bill proposes to amend the Migration Act to provide that the ART will not have jurisdiction over, and therefore must not review, an application that is not properly made.

Yet to commence provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 amended the Migration Act to replace existing provisions relating to applications for review of reviewable migration and reviewable protection decisions by the ART. These amendments will commence at the same time as the Administrative Review Tribunal Act 2024. Proposed sections 347 , 347A and 348 of the Migration Act set out the requirements for an application to the ART to be ‘properly made’.

The Bill will further amend proposed sections 347 and 348 to provide that an application is only properly made where:

• it is made within the specified period, being seven days for those in immigration detention, and 28 days otherwise (which remains unchanged from what is currently provided for in proposed section 347 of the Migration Act) and
• it is accompanied by the prescribed information (if any) and the prescribed documents (if any).

Proposed paragraphs 347(2)(a) and (b) (as introduced in the Bill) set out the timeframes for providing these prescribed information and documents, being seven days for those in immigration detention, and 28 days otherwise.

While proposed section 347 already requires an application to be accompanied by the prescribed fee (if any), the Bill will legislate for the fee to be paid within a specified timeframe. Currently, the Migration Regulations 1994 prescribe that any fee for review of reviewable protection decisions only becomes payable seven days after notification from the ART of its decision (see regulation 4.31B of the Migration Regulations).

Under the new arrangements, the fee for an application for the review of a migration decision must be paid within seven days for those in immigration detention, and 28 days otherwise, for the application to be considered to be properly made. For applications for review of a protection decision, the Migration Regulations will specify when the fee must be paid (though failure to pay the fee does not appear to affect whether or not the application was properly made for the purposes of the ART considering the application). Under proposed section 347A, certain applications can only be made by specified applicants in order to be considered to be properly made.

An application that does not comply with these requirements will not be able to be reviewed by the ART.
In the Statement of Compatibility with Human Rights, the Government has argued that the amendments are reasonable, necessary and proportionate: