The Administrative Tribunal Bill, which was first introduced late last year, is intended to establish a new fit for purpose Federal Administrative Review body that, if passed, will replace the current Administrative Appeals Tribunal (AAT). The new body will be called the Administrative Review Tribunal (ART), and it is intended to offer an improved avenue for individuals to seek independent merits reviews of government decisions.
The Bill details the Tribunal’s membership, structure, review procedures and other matters. It also re-establishes the Administrative Review Council. Consequential amendments would be made by the Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Bill 2024.
The ART Bill proposes significant changes to the current system of administrative review.
The ART Bill has been informed by:
- extensive public consultations that were held in April and May 2023
- engagement with key stakeholders including government, legal industry representatives, individual advocacy groups, AAT staff, State and Territory Civil and Administrative Appeals Tribunals, and other community groups
- guidance from the Administrative Review Expert Advisory Group, of which Emeritus Professor Robin Creyke AO, a Proximity Expert Advisor, are members.
Forty-five employees from the Attorney-General’s Department, along with the Office of Parliamentary Counsel, have been tasked with redrafting the legislation.
Whilst the ART objectives are largely the same as the current AAT objectives, there are some significant proposed changes as part of the new Bill, particularly with regards to increased powers and the appointment process. These proposed changes are set out below.
Key proposed changes
Increased powers for Registrars
There are proposed increased powers for registrars, including the powers to dismiss applications if not made within a reasonable time, extend period of time for applications, give orders to produce documents, and statement of reasons.
These powers would need to be authorised in writing by the President before a registrar could exercise them.
Appointment of Members—simplified and merit based
The following criteria will apply to the appointment of Members:
Senior Members—Enrolled as a legal practitioner for seven years OR the Minister is satisfied that the person has at least seven years of specialised training or experience.
Members—Enrolled as a legal practitioner for at least five years OR the Minister is satisfied that they have the equivalent specialised training or expertise.
Removal of divisions and introduction of jurisdictions
With approval from the ART President, members will now be able to move between divisions. This is a significant change as previously approval to move between divisions was required from the Minister. It is expected that this greater flexibility will improve the opportunities for developing a faster turnaround for AAT and ART cases.
Performance management of Members
The President will manage the performance of members, including implementing a Code of Performance for Members.
Introduction of the Guidance and Appeals Panel (GAP)
The GAP will introduce a two-tier appeals structure which is intended to provide greater consistency in decision-making within the Tribunal.
Approval for the right to appeal to the GAP sits with the President of the ART. There are two avenues for this to occur:
- Own motion by President to resolve matters raising issues of significance to administrative decision-making, or where appropriate in interests of justice (cl 122) eg Robodebt type issues.
- On appeal by party raising issues of significance to administrative decision-making or contains error of fact or law materially affecting decision (cl 128).
- Not all decisions can be appealed to the GAP. For example, where there’s a first-tier review avenue already available (eg decisions relating to veterans’ legislation that should be made via the Veterans’ Review Board).
Re-establishment of the Administrative Review Council (ARC)
The purpose of the ARC is to monitor the integrity of the administrative review system, and to be able to inquire into, and report on, systemic challenges in administrative law
Is there anything else legal practitioners should be aware of?
The definition of ‘decision’ remains unchanged and is designed to capture all the types of decisions made by agencies, including automated decisions.
The definition of ‘Statement of Reasons’ has been updated to include automated decisions (eg the decision-maker in Statement of Reasons must explain the reasons for a decision, even if automated).
‘Litigation Supporters’ have been introduced to assist self-represented litigants where the Tribunal deems the litigant requires representative support. It is unclear at this stage how this will work in practice, noting consent from the self-represented applicant will be required.
