The Administrative Review Tribunal Act 2024, which establishes the new review tribunal body, the Administrative Review Tribunal (ART), has now received Royal Assent. The Administrative Review Tribunal Bill 2024 (Bill) aims to establish a unified and cohesive ART with adaptable powers and procedures tailored to meet the needs of applicants.
On 14 October 2024, the ART will replace the Administrative Appeals Tribunal (AAT). All ongoing cases with the AAT will be automatically transferred to the ART. 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 NDIS, migration and refugee visas, taxation, security and veterans’ entitlements.
Key Features of the Reform
The ART is the result of the Australian Government’s significant reform to a system of administrative review. The purpose of establishing the ART is to:
- Implement a transparent and merit-based appointments process;
- Appoint additional members to address existing backlogs;
- Implement sustainable funding arrangements;
- Implement a single, updated case management system to address critical business risks;
- Introduce procedural efficiencies and process improvements;
- Implement support services and emphasise early resolution where possible.
Key Objectives of the ART
The ART is expected to play a crucial role in safeguarding the rights and interests of community members and ensuring that the government and public service operate within legal boundaries.
The ART is required to pursue the objective of providing administrative review that:
- Is fair and just;
- Resolves applications in a timely manner, with as little formality and expense as is consistent with reaching the correct or preferable decision;
- Is accessible and responsive to the diverse needs of parties;
- Improves the transparency and quality of government decision-making;
- Promotes public trust and confidence in the ART.
Fair and Just
The Bill includes general principles relating to proceedings to ensure they are fair and just. The ART will have discretion in how it conducts proceedings, within the limits of the legislation and rules. It must operate with minimal formality and technicality, with an aim of making proceedings as accessible as possible for the parties involved. The ART will not be bound by the rules of evidence and may gather information in any manner it deems appropriate. It also has the authority to determine the scope of the review and exercise the powers of the original decision maker. Most importantly, the ART must ensure that each party is given a reasonable opportunity to present their case.
Timely, Informal and Inexpensive
The Bill gives the ART powers and functions to support it to resolve applications in a timely manner. There will be a new structure that harmonises procedures in the ART’s various jurisdictions and allows for more flexible resource allocation. It will include powers to issue directions regarding the ART’s procedures and enforce consequences for non-compliances. There are provisions for resolving matters without a hearing (when appropriate), and an agency party may choose not to participate in a proceeding. However, the ART retains the power to compel their participation if necessary. The ART also has the authority to refer matters to dispute resolution and make decisions based on the parties’ agreement. Additionally, certain powers and functions may be carried out by authorised individuals within the ART, with appropriate safeguards in place.
Accessible and Responsive
‘Accessible’ in the Bill means enabling people to apply for review and participate effectively in proceedings. This may require the ART to make appropriate adjustments to facilities, technology or access to information. The ART will have the ability to appoint a litigation supporter for a party to a proceeding in when appropriate. The ART will be obligated to provide an interpreter in certain circumstances. Further, the President can issue practice decisions aimed at enhancing accessibility and responsiveness for users.
Transparent and High-Quality Government Decision-Making
The Bill establishes the Administrative Review Council to monitor the integrity of the Commonwealth administrative review system, inquire into and report on systemic challenges in administrative law and support relevant education and training for Commonwealth officials.
The Bill establishes a guidance and appeals panel within the ART. The guidance and appeals panel would serve as a mechanism for escalating significant issues and correcting material errors in ART decisions, fostering consistency in decision-making and enabling swift responses to emerging challenges.
The Bill provides powers that will allow the ART to promote transparent and high-quality government decision-making. Jurisdictional area leaders will be required to identify systemic issues that arise during administrative reviews. The President has an explicit function to inform ministers and the Administrative Review Council of these systemic issues. Additionally, there is scope for the ART to publish its decisions broadly, with a specific obligation to publish decisions made by the guidance and appeals panel and any other decisions that raise significant legal issues or have major implications for Commonwealth policy.
Public Trust and Confidence in the ART
The Bill provides a transparent and merit-based selection process for the ART members to emphasise the importance of public trust and confidence in the ART. It will require the President to establish and make publicly available a member code of conduct and performance standards. The President will also be empowered to direct members, investigate conduct concerns and temporarily restrict a member’s duties if there are issues related to performance or conduct. Furthermore, the Governor-General will have the authority to terminate a member’s appointment for breaches of the code of conduct, performance standards, serious misconduct or conviction of an indictable offence. The Bill also outlines clear roles and qualification requirements for the ART’s senior leadership, which includes the obligation to consider stakeholder feedback when advising the President on key decisions. There will be stringent requirements for disclosing, avoiding and managing conflicts of interest. The Bill provides the opportunity to refer ART decisions to the guidance and appeals panel if there may have been a material error and it enhances reporting requirements to ensure transparency in how the ART meets its objective.
Structure of the ART
The ART will have a simplified membership structure with 4 levels:
- President;
- Deputy President (Judicial and Non-Judicial);
- Senior Member;
- General Member.
The President will be supported by a CEO and Principal Registrar. Advice and support will be provided by the Tribunal Advisory Committee which consists of key senior leaders in the ART.
The ART will be made up of 8 jurisdictional areas, each will be led by a jurisdictional area:
- General;
- Intelligence and Security;
- Migration;
- National Disability Insurance Scheme;
- Protection;
- Social Security;
- Taxation and Business;
- Veterans’ and Workers’ Compensation.
Transition to ART
In conclusion, the Bill introduces a comprehensive framework designed to enhance the integrity, transparency and efficiency of this new tribunal body, the ART. It will be interesting to see how the transition happens and how the ART will clear the review backlog. For now, the AAT will continue to operate as normal until 14 October 2024. Parties who have already lodged a review application that has not been finalised with AAT will not need to do anything as it will be automatically passed onto the ART. It is important to keep in mind that all decisions made by the AAT is still considered to be valid and final, subject to any appeal to a Court. This means the ART will not consider the case again. The proper appeal process for the decision from the AAT will be outlined in the decision notification letter.
