The PRESIDENT (Senator the Hon. Sue Lines ) took the chair at 10:00, made an acknowledgement of country and read prayers.
That the Senate take note of the explanation.
That so much of the standing orders be suspended as would prevent Senator Waters moving a motion to provide for the consideration of a matter, namely a motion to give precedence to a motion relating to military equipment trade with Israel.
… based on the latest generation of Elbit's 30 mm manned turret with the COAPS gunner sight, additional electro-optical systems, Iron Fist active protection system, Elbit's Iron-Vision advanced situational awareness head mounted display system and Elbit's ELAWS laser warning system—
That the question be now put.
The Senate divided. [10:41]
(The Acting Deputy President—Senator Allman-Payne)
The Senate divided. [10:44]
(The Acting Deputy President—Senator Allman-Payne)
Defence Amendment (Safeguarding Australia's Military Secrets) Bill 2024
Defence Trade Controls Amendment Bill 2024
A key part of the AUKUS agreement is the pledge contained in the initial leaders' statement to deepen defence ties and enhance joint capabilities and interoperability between all three countries. This includes developing a range of advanced military capabilities that are collectively known as AUKUS pillar 2 activities …
… this whole bill is Boolean: there's ones and zeros; there's nothing in between; it's 'who's in, who's out'. Okay, there's an attempt to create some special conditions with other countries: the Foreign Country List; the use of Five Eyes classification clearances—that kind of thing. But it's still basically about: 'Are you in the tent or outside the tent?'
He works in the area of nanotechnology and semiconductor research. He can place 20 lasers in one strand of your hair—and why would he want to do that? Working at that scale means that he can create technology to better diagnose treatment for Alzheimer's disease, which is terrific.
His fundamental research is almost always published, as far as I'm aware. That's what he intends to do all of the time. But before it's published he speaks to his colleagues, he goes to many conferences and he collaborates with 30 countries. He's a fellow of 14 academies across the world. His research group is made up entirely of international students.
… … …
The implications of this bill, unamended, are that his research would cease or he would need to set up a closed area of his research laboratory where such research could be undertaken. There would be a question mark as to whether he could maintain his current students and collaborators. He would certainly not be able to access the research workforce that he's able to access today.
We know that there are a large pool of workforces coming from places like India and South Korea, which are not on the foreign countries list, and other areas in south Asia. That's concerning. We have companies we've spoken to where 75 per cent of their workforce come from countries not on that foreign … list.
People move very easily. We will lose people. We will not get people that we want. And some of that will be research that is directly applicable to national security.
… the employees of a much wider range of government agencies and departments have access to secrets and expertise that are of great interest to our adversaries.
A key part of the AUKUS agreement is the pledge contained in the initial leaders' statement to deepen defence ties and enhance joint capabilities and interoperability between all three countries. This includes developing a range of advanced military capabilities that are collectively known as AUKUS pillar 2 activities …
We need to collaborate to get access to knowledge that we need to solve unique Australian problems. Most of the knowledge is generated elsewhere. The only way we get to use it, to see it and to do it is to participate in it and to help make the decisions that take us in the direction we want to go.
On multiple occasions, although we had applied for permit renewal well in advance, the reissue was delayed so long as to leave a few weeks' gap, during which we were not permitted to continue normal research communication with overseas colleagues.
I have been reliant on income support for nearly sixteen years. Currently I receive Jobseeker Allowance, as I have done since I finished university in October 2016. … Groceries take up half my net payment, and bills take up the rest.
I am also disabled—one of the more than 40% of people on Jobseeker with a disability. I'm autistic, I have depression and social anxiety disorder, and I experience migraines. I also use either a cane or crutches for mobility. But because specialist appointments are expensive, I've been locked out of the Disability Support Pension simply because I can't afford to pay or save for them. I need to see a psychiatrist or a clinical psychologist as part of applying for the DSP, but I don't have the money for it. I've been asked if I would consider crowdfunding, but I'm uncomfortable with the idea and see it as a last resort.
For whatever reason, whether my disabilities or my lack of work experience, I have found it impossible to find a permanent job. My only jobs have all been temporary. My Bachelor's degree is gathering dust because no employer will give me a chance. If any of the employers I've applied to work for wanted me as an employee, they would have hired me seven years ago. I can only assume, therefore, that I'm unemployable.
Because I'm a Jobseeker recipient, I'm required to engage with an employment service provider. Every single provider I've been a client of, all six of them, has been utterly awful to deal with. I've been abused, I've been "parked" and not given the help I need to find suitable work, and most recently I've been forced into "resilience training" that caused me to become suicidal.
… … …
Prime Minister Albanese promised when he was elected that nobody would be left behind. People on income support are clearly nobody, because guess what? You are leaving us behind.
I can confirm that this government has no intention whatsoever of getting rid of it. I recognise that the Grattan Institute has made that suggestion, but we have categorically ruled it out, both I and the Prime Minister.
… touching the diesel fuel rebate is not on this government's agenda. We are not considering it. We are not working on it.
That the Senate take note of the answers given by ministers to questions without notice asked by Opposition senators today.
That the Senate take note of the answer given by the Minister for Agriculture, Fisheries and Forestry (Senator Watt) to a question without notice I asked today relating to immigration.
That the Senate take note of the answer given by the Minister for Finance (Senator Gallagher) to a question without notice I asked today relating to offshore gas exploration.
That general business order of the day no. 69, Competition and Consumer Amendment (Divestiture Powers) Bill 2024, be considered on Wednesday, 27 March 2024, at the time for private senators' bills.
That leave of absence be granted to the following senators:
(a) Senator McGrath for today for personal reasons; and
(b) Senator Reynolds for 25 to 27 March 2024 on account of parliamentary business.
Fair and Transparent Elections Bill 2024
That the following bill be introduced: A Bill for an Act to amend the Commonwealth Electoral Act 1918 , and for related purposes.
That this bill may proceed without formalities and be now read a first time.
That this bill be now read a second time.
The fairness and transparency of our elections underpins every issue addressed in this place.
We can't trust our politicians to make decisions about gambling harm if they are secretly beholden to gambling providers.
We can't trust them to make decisions about climate if they are financed by fossil fuel companies.
And if we don't know where their money is coming from, we don't have all the information we need before we decide who to trust with our vote.
In commerce we need competition to drive innovation and prevent big companies from using their market power to dominate.
In politics we also need competition so if communities don't feel that their values or priorities are shared by their representatives, they can find a different representative.
We need diversity in politics so that it is actually representative of community.
This bill lays out 12 reforms to improve transparency, reduce financial influence, level the playing field and provide fair representation for the Territories.
These changes have the broad support of the crossbench, democracy think tanks, civil society organisations and academics, some of whom are here in the chamber today.
These reforms build on the work of many other crossbenchers, including the members for Mayo, Clark, Warringah and Indi and the Greens.
These reforms are also likely to be supported by the one-third of Australians who didn't cast their primary vote for a major party last year and anyone who thinks transparency and a level playing field are good for democracy.
The first five changes relate to the current lack of transparency. Over the last 20 years, only 21 per cent of major parties' private funding has been disclosed donations. We need to fix disclosure requirements and ban lies so voters can make an informed choice about their representatives.
The bill proposes to lower the disclosure threshold from more than $16,000 to $1,000 and require disclosure within seven days.
The bill also proposes changes to broaden the gift definition and improve the so-called Transparency Register. This would mean that $14,000 dinners and $35,000 business roundtable subscriptions could not be hidden. It would also mean we could see exactly how much revenue the Labor Party earns from pokies. Over the last 20 years, 21 per cent of all private funding to the major parties came from undisclosed sources.
The bill bans lies in political ads, using the approach proposed by the member for Warringah. The 2016 'Mediscare' incident and the 2019 death tax incident showed that both major parties are guilty of this and Australians deserve better.
The next three changes are aimed at reducing financial influence. Australians worry that politicians make decisions for vested interests, not for all of us. We need to reduce financial influence so we trust governments to make decisions in the best interests of the country.
The bill proposes a major-donor cap, which is a cap set at 2% of the total amount of public funding at the previous election. Had this cap been in place at the 2022 election, the amount of money given in major donations would have reduced from over $200 million to about $83 million. It would have affected just four donors, and is therefore unlikely to be subject to any successful constitutional challenge.
Donations from companies inflicting social harm should be banned. In 2022, gambling and alcohol companies contributed $2 million to major parties, including $19,000 from Sportsbet to Minister Rowland, who is in charge of regulating gambling, in the week of the election.
The bill also proposes banning donations from current or potential substantial government contractors. The big four accounting firms contributed $4.3 million in donations to major parties in the last 10 years. During this time, the value of their government contracts has increased by at least four times. Three-quarters of OECD countries don't allow these types of donations, and it's time Australia joined them.
The remaining three changes are about levelling the playing field. In 2022, voters decided they wanted more political choice, with one-third casting their primary vote outside the major parties.
It's an uphill battle for community candidates, who face at least 13 party advantages and five incumbency advantages. Equalising some of these advantages would enable healthy political competition. It would also mean that parliamentarians are more likely to be representative of the diversity of the community, enabling more candidates from diverse cultural and socio-economic backgrounds.
For example, the bill proposes to limit government advertising before elections. The Coalition spent $31 million on its positive energy campaign before the last election, trying to convince us we weren't the worst OECD country on climate change. This was paid for by taxpayers. This was consistent with at least a doubling in government advertising before every election. Governments should not be able to use taxpayer funds to promote their party's achievements.
The bill cleans up the postal voting process. Postal voting is an important part of our election process. But political candidates have been using this to harvest personal data and in many instances cause confusion.
It also proposes setting up an independent campaign entity for independent candidates, to equalise access to voters and reporting dates between independents and parties.
Finally, and significantly, the bill addresses the unfair lack of democratic representation of the ACT and the Northern Territory.
At present, the Territories are represented by just two senators each, a number that was set as part of a political deal in 1975. The deal had no real basis but was a political decision that effectively gave both major parties two additional Senators (one from each Territory).
Two Senators is not fair democratic representation for Territories. Increasing the number of Senators for the Territories allows greater opportunity for a more diverse representation, better reflecting the views of the people.
It's up to all of us to make it clear to government that we expect its response to incorporate these changes and not just entrench the two-party system.
We must be able to see where the money comes from before elections. We must reduce financial influence that could skew the decisions of government.
And we must have a level playing field so new representatives can emerge if that's what their communities want.
Pursuant to standing order 75, I propose that the following matter of public importance be submitted to the Senate for discussion:
Labor's heavy-handed market interventions, destructive industrial relations changes and secretive environmental protection and biodiversity conservation reforms are creating massive uncertainty in energy markets that Australians will pay for through higher prices and loss of industrial jobs.
When I started in the industry at Saraji, the majority of workers were employed directly through BMA. Now I estimate that at least at Saraji, that number is somewhere around 40 per cent of those directly employed at the worksite. Those workers not directly employed are also on terms and conditions of employment that are significantly less than those who are directly employed.
There's a big difference in pay rates between the permanent employees and labour hire workers like me. We get about $20 to $30 an hour less, even though we do the same work and labour hire workers are equally skilled and experienced.
I'm the mayor of Queensland's largest resource region. We are a host to 28 active coalmines. We've lived with the consequences of labour hire practices in particular for well over a decade. … Unfortunately, what we live in—our lived experience and what we see in our region—is that labour hire practices are driving down our liveability for our community and our broader region. This is just not a debate for the workers themselves, the industry and the unions. There is a direct impact to our community's sustainability when these decisions are taken around casualisation and labour hire.
Pursuant to standing order 75, I give notice that today I propose to move "That, in the opinion of the Senate, the following is a matter of urgency:
The Government must substantially increase funding for threatened species in the May budget and introduce comprehensive reform of our national environmental laws in line with the commitment to no new extinctions. The Government initially committed to introducing the reform by mid-2024, and must introduce the package by October 2024.
That, in the opinion of the Senate, the following is a matter of urgency:
The Government must substantially increase funding for threatened species in the May budget and introduce comprehensive reform of our national environmental laws in line with the commitment to no new extinctions. The Government initially committed to introducing the reform by mid-2024, and must introduce the package by October 2024.
The Senate divided. [16:48]
(The Acting Deputy President—Senator Fawcett)
That the Senate take note of the document.
That the Senate take note of the document.
In considering an organisation for listing, the Australian Federal Police (AFP) Minister (in practice the Attorney-General) considers advice in the form of an unclassified Statement of Reasons. This addresses both legislative and non-legislative criteria.
The Statement of Reasons is made available to the public. It provides transparency about the AFP Minister's satisfaction that the organisation meets the legislative threshold for listing.
The Statement of Reasons is prepared based on unclassified, open-source information about an organisation. It is intended to corroborate classified intelligence assessments from relevant agencies.
That senators be discharged from and appointed to committees as follows:
Migration—Joint Standing Committee—
Discharged—Senator McKim
Appointed—Senator Shoebridge
Northern Australia—Joint Select Committee—
Discharged—Senator Allman-Payne
Appointed—Senator Cox
That, in accordance with the provisions of the National Library Act 1960 , the Senate elect Senator Walsh to be a member of the Council of the National Library of Australia for a period of 3 years, on and from today.
Australian Research Council Amendment (Review Response) Bill 2023
National Vocational Education and Training Regulator Amendment (Strengthening Quality and Integrity in Vocational Education and Training No. 1) Bill 2024
Administrative Review Tribunal Bill 2024
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2024
Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Bill 2024
That these bills may proceed without formalities, may be taken together and be now read a first time.
That these bills be now read a second time.
ADMINISTRATIVE REVIEW TRIBUNAL BILL 2024
Today, the Governments introduces three Bills that together will abolish the Administrative Appeals Tribunal and replace it with a new and much improved Administrative Review Tribunal.
In doing so, these Bills represents the most important reform of the federal system of administrative review for decades.
Effective administrative review is critical to Australia's system of government.
A strong, user-focused administrative review body provides an avenue for community members to seek independent review of government decisions that have major and sometimes life-altering impacts on their lives.
This function is critical to protecting the rights and interests of individuals and organisations, including the most vulnerable members of our community.
And critically, high quality review of government decision-making can—and, if this Bill is enacted, will—encourage better quality decision-making across government.
Background
The Administrative Appeals Tribunal commenced on 1 July 1976, following reports by the Commonwealth Administrative Review Committee in 1971 and the Committee on Administrative Directions in 1973.
The Commonwealth Administrative Review Committee report, in particular, recognised the need for individuals to be able to challenge a growing range of government decisions, and recommended the creation of a comprehensive and 'essentially Australian' system of administrative law.
In the second reading speech for the Administrative Appeals Tribunal Bill 1975, then Attorney-General, the Honourable Kep Enderby QC, outlined the intention to establish a single independent tribunal and a vision of the AAT as the main tribunal for Commonwealth administrative review.
The foundational principles of administrative review are as relevant today as they were in 1976. An independent person 'stepping into the shoes' of the original decision-maker still lies at the core of merits review. The objective of ensuring that government reaches decisions that are correct or preferable is, and remains, the goal.
Unfortunately, the AAT no longer enjoys the trust and confidence of the Australian community it serves, and is not fit-for-purpose. The previous government's record of appointing dozens of individuals from the same political party to the AAT is well known.
However, the AAT's problems extend beyond the absence of a merit-based selection process under the former government.
Government inherited an AAT that is not on a sustainable financial footing, that is beset by delays and a large and growing backlog of applications, and an AAT that is operating multiple and ageing electronic case management systems—a legacy of the poorly executed amalgamation of multiple tribunals into the AAT in 2015.
The Government also inherited an AAT that is no longer taken seriously—or, at least, seriously enough—by government departments and agencies. As the Robodebt Royal Commission highlighted, the AAT made hundreds of decisions that the approach to calculating and raising debts under the Scheme was unlawful—but those decisions, and their obvious implications, were ignored and ultimately buried.
In developing this package of legislation, the Government has had the opportunity to look at the original vision for the AAT afresh, and consider how it can best be realised now and into the future.
We have the benefit of nearly 50 years of experience since the AAT was established and multiple reviews—old and new—into the AAT and the administrative review system more generally.
We have drawn on the knowledge and wisdom of an Expert Advisory Group. That Group is led by former High Court Justice, the Honourable Patrick Keane AC KC, and comprises Ms Rachel Amamoo, Professor Anna Cody (now the Sex Discrimination Commissioner), Emeritus Professor Robin Creyke AO, Emeritus Professor Ron McCallum AO, Former Federal Court Justice, the Honourable Alan Robertson SC, and Emeritus Professor Cheryl Saunders AO.
And over the course of the last year, the Attorney-General's Department has undertaken significant consultation with AAT staff and members, AAT users, peak bodies, legal assistance providers, advocates and other experts.
The Government thanks those involved in Committee consideration of these important reforms and recommendations to support their passage.
Overview of reform
This package of legislation is transformative. It is ambitious and comprehensive—we are building an institution that is intended to serve the community and drive better decisions for many years to come.
Consultation has provided the Government with an in-depth understanding of what works and does not work within the current system.
The outcome of this process is legislation that aims to create a unified, cohesive Tribunal with flexible powers and procedures that best meet the needs of applicants.
We are proposing to create an adaptive framework with flexibility for the Tribunal to continuously improve its operation, and to support best practice across its entire caseload.
Of course, not all problems can be fixed by legislation. Close attention will be given to implementation, practice, monitoring and evaluation to ensure ongoing improvement into the future.
Legislative package
Today the Government is introducing three Bills:
The Government recognises the importance of setting up the new Tribunal with the best chance of success and has continued to listen and respond to stakeholder feedback. The Government has moved amendments to implement suggestions raised through the parliamentary scrutiny process, including by civil society stakeholders. The other place has passed the Bill with those amendments.
Key features of new Tribunal
The primary Bill sets out the objective of the new Tribunal, which will guide its operations and the actions of all members and staff.
The Bill's objective is to provide an independent mechanism of review that:
To ensure it is able to achieve this objective, the Bill would establish a Tribunal with the following key features:
Structure and membership
The Tribunal will be made up of the President, Deputy Presidents (both Judicial and Non-Judicial), senior members and general members. This streamlined membership structure responds to feedback that the AAT's seven membership levels are confusing and arbitrary.
The Tribunal's President will have clear functions, including hearing particularly significant and complex matters as a member, managing the business of the Tribunal, managing the performance and conduct of members and consulting with civil society.
A single Chief Executive Officer and Principal Registrar (Principal Registrar), will assist the President to manage the administrative affairs of the Tribunal, and will be responsible for managing corporate and registry services.
The Tribunal will be made up of eight jurisdictional areas:
Within these jurisdictional areas, the President can establish 'lists', led by senior members or Deputy Presidents, to ensure the Tribunal can build specialist knowledge to deal effectively with distinct caseloads.
This structure builds in flexibility to ensure an enduring, responsive foundation for the Tribunal's work into the future.
Each jurisdictional area will be led by a Non-Judicial Deputy President who will be responsible for identifying and managing trends in and changes in the caseload of their jurisdictional area, and managing the performance, conduct and professional development of members assigned to that area.
The President will have the power to assign members within the Tribunal to work in different jurisdictional areas. Vesting this power in the President will allow members to be deployed more flexibly.
A Tribunal Advisory Committee will provide strong collective leadership to the Tribunal. Comprised of the President, Principal Registrar and the jurisdictional area leaders, the Committee will ensure these leaders are individually and jointly responsible for promoting the Tribunal's objective.
Transparent and merit-based selection process
A transparent and merit-based selection process for members is provided for in the Bill.
The suitability of prospective members (other than Judicial Deputy Presidents) will be assessed through a thorough, competitive, merit-based and publicly-advertised process. The legislation requires the Minister to establish an assessment panel to conduct this assessment process. The Minister cannot recommend a candidate for appointment to the Tribunal unless they have been assessed as suitable by an assessment panel through a merit-based process.
The assessment will consider how well candidates fulfil the skills, expertise, experience and knowledge required to be a member of the Tribunal.
This assessment must also consider the need for a diversity of skills, expertise, and lived experience, noting that the Tribunal should reflect the community it serves.
Performance, conduct and professional development of members
The Bill would give the President powers to manage member performance, conduct and professional development.
The power to adequately address allegations of member underperformance, bullying and harassment was noticeably absent from the AAT Act. The Bill provides powers and processes that will help ensure the Tribunal is a safe and respectful workplace, and the public can be confident in the quality of the Tribunal's decision-making.
User-focused accessible design
The Bill strengthens the Tribunal's objective of providing independent merits review that is accessible and responsive to the diverse needs of parties, including people with disability and people who do not speak English as a first language (or at all).
The legislation implements a supported decision-making model for people with a disability. It provides that a person may participate in a proceeding by, or with the support of, a litigation 'supporter' and that parties to a proceeding are assumed to have decision-making ability. This presumption cannot be rebutted solely on the basis that a person has a disability.
Enhanced powers and procedures
The Bill provides the Tribunal with a range of powers and procedures that can be applied flexibly across all jurisdictions within the Tribunal. This will allow the Tribunal to tailor its processes to best suit each matter.
The Bill also introduces procedures around party participation to make proceedings more flexible and less adversarial. Specifically, the Bill provides a mechanism for decision-makers to elect not to participate in the review process. Some kinds of proceedings will be better suited to a less formal process of review involving only the applicant. The majority of AAT reviews are already conducted in the absence of a decision-maker and the more inquisitorial nature of these reviews is valued by applicants.
The ability of decision-makers to elect not to participate in proceedings will be subject to limits set out in the Bill, including that the Tribunal may order a decision-maker to participate.
Retaining powers and procedures that work
The new Tribunal will also have all of the essential powers, procedures and requirements currently applicable in the AAT.
Social services reviews
Reviews in the Tribunal must be informal, accessible and quick, and responsive to the diverse needs of parties. The speed, informality and non-adversarial nature of the current AAT first review in social services matters is important to retain under the new model.
The Government has listened to stakeholder feedback that it is important to retain a second review 'by right' for matters where two-tier review currently exists before the AAT.
That is why the legislation provides a pathway to seek second review for parties in social services decisions who are dissatisfied with the outcome of the first review. Second review is intended to support a smoother transition to the new Tribunal for this cohort.
The Government expects that the greater ability to tailor the first review to the particular matter will reduce the reliance on second review 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.
The outcome is to retain the focus on an informal, accessible, trauma-informed first review, with a second chance for people who need it. This pathway complements a range of improvements to ensure that every Tribunal review is as effective and efficient as possible.
Improved administrative decision-making
A key objective of the Tribunal will be to improve the quality and transparency of decision-making across government.
The Bill achieves this important objective in a number of ways, including by re-establishing the Administrative Review Council. This was a key recommendation of the Robodebt Royal Commission.
The Council will comprise members with administrative law expertise and knowledge of the needs of people significantly affected by government decisions.
The Tribunal's senior leadership will also be directly responsible for identifying and monitoring systemic issues in government decision-making, and bringing them to the attention of government and the Administrative Review Council.
The President's functions include engaging with civil society on the performance of the Tribunal's functions, to ensure that users' voices are heard directly by the most senior leaders in the Tribunal.
The Bill also strengthens requirements for the publication of Tribunal decisions, in line with the recommendations of the Robodebt Royal Commission.
Guidance and appeals panel
The Bill establishes a guidance and appeals panel within the Tribunal to resolve matters raising systemic issues and review Tribunal decisions that may be affected by error. This will promote consistent Tribunal decision making and more rapid responses to emerging issues.
The guidance and appeals panel will be able to hear matters on appeal that raise a significant issue in administrative decision-making or where the decision of the Tribunal may contain a material error.
The President may also refer a matter to the guidance and appeals panel if it raises an issue of significance to administrative decision-making.
A decision of the guidance and appeals panel on a systemic issue will provide clarity for others seeking review and will enhance the quality of future administrative decisions, both by the original decision-maker and by the Tribunal, on similar issues. Tribunal members will be required to treat these decisions as guidance decisions.
Conclusion
Before I conclude, I would like to thank, on behalf of the Government, the many organisations and individuals who have contributed to the development of this legislation, including the members of the Expert Advisory Group, staff, members and users of the AAT and the many legal assistance providers, advocates and other experts who have made submissions to, or met with, the Attorney-General's Department and the two parliamentary committees that have considered the Bills.
I also want to thank all of the officers at the Attorney-General's Department who have worked on these bills for their excellent work.
This legislation represents an opportunity to significantly improve Australia's administrative review system—a key pillar of our democracy.
The new Tribunal is intended to serve as a safeguard against abuses of power.
It is intended to play a vital role in protecting the rights and interests of members of the community, and ensuring that government and the public service act within the bounds of the law.
It is intended to lead to better government and better government decision-making.
As the Robodebt Royal Commission noted:
Effective merits review is an essential part of the legal framework that protects the rights and interests of individuals; it also promotes government accountability and plays a broader important role in improving the quality and consistency of government decisions.
With this legislation, the Government is seeking to restore trust and confidence in Australia's system of merits review.
After listening to the commentary on the legislation while it was being considered in the other place, the Government refined the bills through enhancements to appointment processes, the mechanism for review and the model for social security and other social services appeals. The other place supported this legislation and passed it with those enhancements. I now look forward to the support of the Senate.
I commend the bill to the Senate and present the accompanying explanatory memorandum.
ADMINISTRATIVE REVIEW TRIBUNAL (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS NO. 1) BILL 2024
The Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023 supports the establishment of the new Administrative Review Tribunal (Tribunal), which will be created by the Administrative Review Tribunal Bill 2023 (the ART Bill).
It makes consequential and transitional amendments to 138 Commonwealth Acts, covering approximately 93 per cent of the Tribunal's caseload. Those amendments are needed to effectively implement this significant reform.
The second consequential and transitional Bill makes technical amendments to 110 Acts which refer to the AAT. Decisions under these other Acts collectively account for approximately seven per cent of the AAT's jurisdiction by caseload.
Abolishing the AAT
The first Consequential and Transitional Bill repeals the AAT Act and other legislative provisions that provide for the operation of the Administrative Appeals Tribunal. The Administrative Review Tribunal, established by the ART Bill, will replace it.
Consequential amendments
The Bill contains consequential amendments to Acts in 14 Commonwealth portfolios. These include Social Services, Treasury, Veterans' Affairs and Home Affairs, as well as matters affecting the National Intelligence Community.
The changes in this Consequential and Transitional Bill focus on addressing the highest-volume caseloads within the Tribunal and the most complex consequential amendments. They also make simple but essential reference changes.
Migration Act
The Migration Act will be amended to harmonise and improve the review process for migration and protection visa applicants. To provide for more effective and efficient reviews, the exhaustive statement of the natural justice hearing rule will be adjusted so that it applies in limited, critical, areas.
The Immigration Assessment Authority, which provides a 'fast track' style of review for certain protection visa applicants, will be abolished. These applicants will have their matters reviewed in the same way as any other protection visa applicant.
The reform significantly standardises the availability of Tribunal powers and procedures for migration and protection matters, supporting consistency and collaboration across the Tribunal. This includes the ability to hold directions hearings, case conferences and to use broader dismissal powers, directions powers, and summons powers. Administrative and procedural tasks will be able to be delegated to registrars and staff.
It is no secret that the Migration and Refugee Division of the AAT is beset by delays. The Nixon Report found that these delays were 'motivating bad actors to take advantage by lodging increasing numbers of non-genuine applications for protection'. This has come at a cost to people in genuine need of protection and to the broader Australian community.
Together with the changes introduced by the Administrative Review Tribunal Bill and the government's recent appointment of over 90 additional members, the changes to the Migration Act in this Consequential and Transitional Bill will give the new Tribunal the tools it needs to swiftly resolve unmeritorious applications that cause delays in the migration system without sacrificing fairness for genuine applicants.
Social Services and NDIS
In accordance with stakeholder feedback, the primary legislation retains a pathway for applicants to seek second review for parties in social services decisions who are dissatisfied with the outcome of the first review. The Consequential and Transitional Bill contains amendments to ensure that the Tribunal operates as intended when providing second review for social services applicants.
The second review pathway would be available instead of the appeals function of the guidance and appeals panel under Part 5 of the primary Bill. The President of the Tribunal may still refer an application for review of a social services decision to the guidance and appeals panel on the basis it raises an issue of significance to administrative decision-making, on either first or second review.
The Consequential and Transitional Bill also updates references in the National Disability Insurance Scheme Act, to ensure reviews of these decisions can continue in the new Tribunal. The new Tribunal is focused on flexible, informal and accessible reviews, and has the power to appoint litigation supporters—where needed—to assist people who do not have decision-making ability to participate meaningfully in Tribunal proceedings. The Tribunal is expressly required to promote accessibility in proceedings, ensuring that parties can effectively participate, and to be responsive to the diverse needs of parties to the proceedings.
Treasury portfolio
A range of modifications which currently apply for taxation and charity matters in the AAT will be retained to, among other things, protect tax revenue collection, and to uphold longstanding core tax principles and practices. For example:
Veterans' reviews
The arrangements for veterans' matters that currently apply in relation to the AAT are retained in the context of the new Tribunal, including the ability to seek review in the Tribunal following consideration by the Veterans' Review Board. Given the complex nature of the issues relating to the determination of liability and compensation, modifications such as application time limits will continue to apply, to ensure veterans and their dependants are not disadvantaged.
Security matters
Provisions setting out protections for matters involving national security information are contained across various Acts and will be harmonised to ensure clarity.
Transitional amendments
The Consequential and Transitional Bill also facilitates the smooth transition from the AAT to the new Tribunal.
The Bill makes provision for institutional and corporate arrangements, such as the transfer of staff, assets, liabilities and records from the AAT to the new Tribunal. The Bill provides that all ongoing and non-ongoing staff will transfer to the new Tribunal.
It provides clarity by ensuring that applications that have already been made to the AAT, or proceedings already in progress, will automatically transfer to the new Tribunal when it commences operations. Parties with matters in the Tribunal at the time of transition will be notified, and will not need to reapply to have their matter continue.
AAT members who are judges will have their appointments transferred to the ART. Moreover, AAT members (including the President) who have been appointed since 1 January 2023 through a transparent and merit-based selection process will also transition to the Tribunal for the remainder of their terms.
All other current members have been given the opportunity to apply for roles in the new Tribunal through the merit-based appointment process that has already commenced.
Current full-time AAT members who are appointed to the new Tribunal and whose appointments would have continued beyond the commencement date will have their remuneration preserved at their current AAT rate for up to four months, unless their remuneration would be higher in the ART.
Current full-time members who are not appointed to the new Tribunal and whose appointments would have continued beyond the commencement date of the new Tribunal will be paid an amount equivalent to up to four months of their current salary.
This arrangement ensures that compensation payments are fair and reasonable but not excessive.
Conclusion
The Consequential and Transitional Bill makes essential consequential amendments to legislation across the Commonwealth, and outlines robust transitional arrangements needed to support the smooth establishment of the new Administrative Review Tribunal.
It also harmonises, streamlines and enhances the operation of provisions across a range of jurisdictional areas, simplifying the process for applicants and promoting a more efficient, accessible and cohesive tribunal.
I commend the bill to the Senate and present the accompanying explanatory memorandum.
ADMINISTRATIVE REVIEW TRIBUNAL (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS NO. 2) BILL 2024
The Administrative Review Tribunal (Consequential and Transitional Provisions No.2) Bill 2024 forms part of the package of Bills that would abolish the Administrative Appeals Tribunal and establish the Administrative Review Tribunal.
It supports the establishment of the new Tribunal, which will be created by the Administrative Review Tribunal Bill 2023. Together with the Administrative Review Tribunal (Consequential and Transitional Amendments No.1) Bill 2023, this Bill would also make the consequential and transitional amendments needed to effectively implement the reform.
Consequential Bill 2 makes consequential amendments to 110 Commonwealth Acts to ensure continuity for the Tribunal and its users. Decisions under these Acts collectively amount to approximately seven per cent of the AAT's jurisdiction by caseload.
Consequential amendments
The Bill contains consequential amendments to Acts across the Commonwealth, as well as amendments to a number of Commonwealth Acts requiring State and Territory consultation.
The changes in the Bill are predominantly technical amendments that will ensure consistent terminology, concepts, structure and other policy settings. The changes also ensure that the new Tribunal has the same jurisdiction as the AAT and that various provisions operate in substantively the same way as they operate in the AAT.
Consequential Bill 2 would make changes to harmonise and streamline provisions where appropriate. It also would implement changes to the review pathway for preventative detention orders, and allow external merits review of decisions not to provide evidence of a person's Australian citizenship, under the Australian Citizenship Act 2007 .
Standardising processes
Where possible, Consequential Bill 2 would repeal special procedures in other Acts, so that the default provisions in the ART Bill would apply.
The use of standard procedures in the Tribunal would better support users, with increased similarity and predictability in how their matters progress through the Tribunal. It would reduce complexity within the Tribunal, which means there will be more scope to use shared technology, forms, staff and member resources, and create greater efficiencies than is currently possible within the AAT.
In circumstances where the Tribunal's proposed standard powers and procedures need to respond to the unique features of a particular caseload, Consequential Bill 2 would make the necessary amendments to other Acts to preserve existing arrangements.
We have the benefit of nearly 50 years of experience since the AAT was established, and over eight years since it was amalgamated with multiple other tribunals in 2015. We also have the benefit of extensive consultation over the last year on what does, and what does not, work within the current system.
Preventative Detention Orders
Consequential Bill 2 would remove the administrative review pathway for preventative detention order decisions, and leave this entirely to the courts.
Importantly, the remedies currently available to an affected individual through the administrative review mechanism are also available, and would continue to be available, through judicial review.
Among other things, these changes address the risk that sections 105.51(5) and (7) of the Criminal Code could be construed as vesting federal judicial power in a body other than a court, contrary to Chapter III of the Constitution. They do this by ensuring that the power to award compensation to a person for false imprisonment is only exercised by the courts.
Merits review for evidence of Australian citizenship
The Bill would confer jurisdiction on the new Tribunal to review a decision to refuse to provide a person with evidence of their Australian citizenship under the Australian Citizenship Act 2007 .
Allowing the new Tribunal to review those types of decisions would be consistent with the review pathways available for other citizenship and migration related decisions. It would provide applicants with an accessible independent review process. This is a simple change we can make to ensure that people affected by these decisions have an effective administrative review pathway in the Tribunal.
State and Territory consultation requirements
Finally, Consequential Bill 2 would also make minor amendments to 14 Commonwealth Acts which are subject to requirements for the Commonwealth to consult with, or seek the agreement of, the States and Territories before introducing amendments into Parliament. These requirements arise from intergovernmental agreements. The Commonwealth has satisfied these requirements and appreciates the cooperation from the States and Territories.
The creation of the Tribunal may require the States and Territories to make consequential amendments to their own legislation. The Commonwealth has worked closely with the States and Territories to assist them to identify and progress any amendments that may be required.
Conclusion
Consequential Bill 2 makes technical and essential consequential amendments to legislation across the Commonwealth, ensuring a smooth transition to the new Tribunal. The Bill completes the package of legislation that is required to establish a new and much improved Administrative Review Tribunal—the most important reform of the federal system of administrative review for decades.
The Senate divided. [17:18]
(The Acting Deputy President—Senator Fawcett)
Defence Amendment (Safeguarding Australia's Military Secrets) Bill 2024
Defence Trade Controls Amendment Bill 2024
These reforms are not a "nice to have", they are a must-have.
… … …
The proposed changes to the Defence Trade Controls Act will ensure Australia achieves the required comparability with that of the US. They will be a game changer for our university research sector.
The Senate divided. [17:33]
(The Acting Deputy President—Senator Hughes)
(1) Schedule 2, page 29 (after line 26), at the end of the Schedule, add:
Defence Act 1903
6 Subsection 4(1)
Insert:
IGADF official (short for Inspector-General Australian Defence Force official) means:
(a) the Inspector-General ADF; or
(b) a person covered by subsection 110O(1).
7 At the end of Part VII
Add:
85 Identification of current or former members of the ADF Special Forces
Offence
(1) A person commits an offence:
(a) if:
(i) the person identifies a person as being a current or former member of the ADF Special Forces; and
(ii) the identification is not of the Special Operations Commander or such other persons as the Chief of the Defence Force determines; or
(b) if:
(i) the person makes public any information from which the identity of a current or former member of the ADF Special Forces could reasonably be inferred, or any information that could reasonably lead to the identity of such a person being established; and
(ii) the Minister or the Chief of the Defence Force has not consented in writing to the information being made public; and
(iii) the information has not been made public by means of broadcasting or reporting proceedings of the Parliament as authorised by the Parliament.
Penalty: Imprisonment for 10 years.
Exceptions
(2) A person does not commit an offence against paragraph (1)(a) if the person identifies the current or former member of the ADF Special Forces to an IGADF official, for the purpose of the IGADF official exercising a power, or performing a function or duty, as an IGADF official.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .
(3) A person does not commit an offence against paragraph (1)(a) if:
(a) the person is an IGADF official; and
(b) the relevant conduct is engaged in by the person for the purpose of exercising powers, or performing functions or duties, as an IGADF official.
(4) Despite subsection 13.3(3) of the Criminal Code , in a prosecution for an offence against paragraph (1)(a) of this section, a defendant does not bear an evidential burden in relation to the matter in subsection (3) of this section.
Extended geographical jurisdiction
(5) Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to an offence against subsection (1) of this section.
Institution of prosecution
(6) A prosecution for an offence against subsection (1) of this section may be instituted only by, or with the consent of, the Attorney-General or a person acting under the Attorney-General's direction.
(7) However:
(a) a person charged with an offence against subsection (1) of this section may be arrested, or a warrant for the person's arrest may be issued and executed; and
(b) such a person may be remanded in custody or on bail;
even if the consent of the Attorney-General or a person acting under the Attorney-General's direction has not been obtained, but no further proceedings are to be taken until that consent has been obtained.
(8) Nothing in subsection (6) or (7) prevents the discharging of the accused if proceedings are not continued within a reasonable time.
Definitions
(9)In this section:
member of the ADF Special Forces means a person who is serving in a unit of the Australian Defence Force that conducts special operations.
The Impact Analysis acknowledges that some of the data obtained to inform the analysis cannot be released publicly due to the security classification of the information and the permitted legal reasons for using the data.
These reforms are not a "nice to have", they are a must-have.
The proposed changes to the Defence Trade Controls Act will ensure Australia achieves the required comparability with that of the US. They will be a game changer for our university research sector.
… basic or applied research conducted in circumstances where the results of the research
(a) are intended for public disclosure, or would ordinarily be published or shared broadly; and
(b) are not subject to any restrictions on disclosure (however imposed) for purposes connected with the security or defence of Australia or any foreign country.
All of us, regardless of race, culture or gender, share a strong identity as Australians wanting to build a common, tolerant and prosperous future together. If we work to find what we have in common rather than what divides us, I believe that we can be better people; we can build a better Australia; we can build a better place for the next generation together.
Defence Amendment (Safeguarding Australia's Military Secrets) Bill 2024
Defence Trade Controls Amendment Bill 2024
That these bills be now read a third time.
Autonomous Sanctions Amendment Bill 2024
… networks of Hamas-affiliated financial exchanges in Gaza, their owners, and associates, and particularly financial facilitators that have played key roles in funds transfers including cryptocurrency transfers, from the Islamic Revolutionary Guard Corps-Qods Force (IRGC-QF) to Hamas and Palestinian Islamic Jihad (PIJ) in Gaza.
… a senior member and co-founder of Hamas who has worked closely with Specially Designated Global Terrorist (SDGT) and Hamas leader Ismail Haniyeh. Zahhar has spoken publicly on behalf of Hamas, including in formal interviews, to threaten violence against Jewish civilians and emphasize its commitment to the destruction of Israel.
… consider targeted sanctions on foreign companies, officials and other entities known to be directly profiting from Uyghur forced labour and other human rights abuses.
The Australian government should join other democracies in holding serious human rights abuses in China to account.
As powerful as it can be for one jurisdiction to impose Magnitsky sanctions against a human rights abuser or corrupt actor, the impact and legitimacy of those sanctions are multiplied as more jurisdictions join together to sanction the same persons.
(1) Page 7 (after line 32), at the end of the Bill, add:
Schedule 2 — Thematic sanctions and other measures
Autonomous Sanctions Act 2011
1 Section 4
Insert:
civil society organisation does not include the following:
(a) a foreign government entity;
(b) a body that is carried on for the purposes of profit or gain to its individual members;
2 At the end of subsection 10(4)
Add:
; and (e) if the proposed proscription addresses a matter mentioned in paragraph 3(3)(d) or (f)—the Minister must consider any credible information provided by a civil society organisation that monitors violations or abuses of human rights or has expertise in international humanitarian law.
3 At the end of subsection 10(5)
Add:
; and (e) if the proscription addresses a matter mentioned in paragraph 3(3)(d) or (f)—the Minister must consider any credible information provided by a civil society organisation that monitors violations or abuses of human rights or has expertise in international humanitarian law.
4 At the end of section 10
Add:
(7) The regulations must prescribe one or more processes under which a civil society organisation may provide information to the Minister as mentioned in paragraphs (4)(e) and (5)(e).
(8) Without limiting subsection (7), the regulations may provide for any of the following:
(a) the Minister to convene regular meetings with civil society organisations;
(b) the Minister to convene such other meetings with civil society organisations as are necessary to respond to an international crisis;
(c) opportunities for civil society organisations to provide information in confidence to the Minister;
(d) the development of strategies and guidelines for ministerial and departmental engagement with civil society organisations.
5 Before section 28
Insert:
27A Annual report on sanctions
(1) The Minister must prepare a report on the autonomous sanctions applied under this Act during each calendar year.
(2) The Minister must table a copy of the report in each House of the Parliament within 15 sitting days of that House after the end of the calendar year to which the report relates.
6 Application of amendment
Section 27A of the Autonomous Sanctions Act 2011 , as inserted by this Schedule, applies in relation to calendar years beginning on or after the commencement of this item.
(2) Page 7 (after line 32), at the end of the Bill, add:
Schedule 3 — Amendments relating to targeted sanctions for human rights violations
Autonomous Sanctions Act 2011
1 After paragraph 3(1)(b)
insert:
(ba) require the Minister to inform the Parliament about the application of autonomous sanctions for serious violations or serious abuses of human rights; and
2 Section 4
Insert:
associated entity : an entity is anassociated entity in relation to a person if:
(a) the person controls, whether alone or jointly with another person and whether directly or indirectly:
(i) at least 50% of the total value of the issued share capital of the entity; or
(ii) at least 50% of the rights to distributions of capital or profits of the entity; or
(iii) the right to cast at least 50% of the maximum number of votes that might be cast at a general meeting (however described) of the entity; or
(iv) the right to appoint or remove a majority of the members of the board or other group of persons responsible for the administration or management of the affairs of the entity; or
(b) the person has authority or responsibility for, or significant influence over, planning, directing or controlling the activities of the entity.
However, an entity is not an associated entity in relation to a person if the person is an external administrator (within the meaning of Schedule 2 to theCorporations Act 2001 ) of the entity, or holds a similar position under a law of a foreign country.
human rights has the same meaning as in theHuman Rights (Parliamentary Scrutiny) Act 2011 .
3 After Part 2
Insert:
Part 2A — Ministerial statements on sanctions relating to human rights
15A Minister must give statement on request by Parliament
(1) This section applies if a resolution is passed by:
(a) either House of the Parliament; or
(b) the Joint Standing Committee on Foreign Affairs, Defence and Trade; or
(c) the Human Rights Sub-Committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade; or
(d) the Senate Foreign Affairs, Defence and Trade Legislation Committee; or
(e) any other committee established, on or after the commencement of this section, under a resolution of one or both Houses of the Parliament to inquire into and report on matters relating to foreign affairs;
requiring the Minister to prepare a statement in accordance with subsection (2) in relation to:
(f) a person; or
(g) a person and any associated entity of the person.
(2) The Minister must prepare a statement setting out:
(a) whether, in the Minister's opinion, the person is responsible for serious violations or serious abuses of human rights; and
(b) whether autonomous sanctions will be applied to the person or associated entity; and
(c) if autonomous sanctions will be applied—a description of those autonomous sanctions; and
(d) if autonomous sanctions will not be applied—the reasons why autonomous sanctions will not be applied; and
(e) details of any consultations undertaken by the Minister in preparing the statement, including any consultations with civil society organisations.
(3) The Minister must table the statement in both Houses of the Parliament within 120 days after the day the resolution is passed.
We have always considered credible information that is provided to us by civil society and we will continue to do that, including conducting regular consultation. We receive suggestions for sanctions listing from a range of sources. It's absolutely the expectation that that would continue, and I know what a constructive role that non-government organisations have played in the development of this legislation—
and in these discussions today. Any individual or organisation can make representations to government regarding the potential sanctions targets.
Broadcasting Services Amendment (Community Television) Bill 2024
That this bill be now read a third time.
Competition and Consumer Amendment (Fair Go for Consumers and Small Business) Bill 2024
The NFF supports the introduction of a clear complaints mechanism that enables designated small business advocates to submit a complaint to the ACCC where they have evidence of a significant or systemic market issue that affects consumers or small businesses in Australia.
The proposed scheme contains positive elements that should encourage greater use of the designated complaints process.
Neurologists are often not well equipped to support the full range of symptoms of FND …