The new Administrative Review Tribunal: what you need to know18 December 2023
On 7 December 2023, the Federal Government introduced the Administrative Review Tribunal Bill 2023 (ART Bill) and the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023 (Consequential and Transitional Bill).
The ART Bill will abolish the Administrative Appeals Tribunal (AAT) and establish its replacement body, the Administrative Review Tribunal (ART), while the Consequential and Transitional Bill makes amendments to a variety of Commonwealth Acts and enables the transition of AAT staff, operations and matters to the ART.
It is proposed that the ART will commence operation in 2024 as a non-corporate Commonwealth entity, accountable to the public through the Parliament.
The ART is described as a new ‘fit-for-purpose’ federal administrative review body providing an independent review mechanism that:
- is fair and just
- resolves applications in a timely manner, and 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, and
- promotes public trust and confidence in it.
To achieve these objectives, the ART Bill:
- enhances powers and procedures to enable the ART to respond flexibly to changing caseloads
- provides a transparent and merit-based selection process for all members, informed by the operational needs of the ART
- simplifies the appointment of members with clear qualification requirements and role descriptions for each of the four levels of membership
- increases the President’s powers to manage the performance, conduct and professional development of members, and
- improves the experience of people seeking review of government decisions by ensuring the ART is an independent mechanism of review that is user-focused, efficient, accessible and fair.
Introduction of the ‘Guidance and Appeals Panel’
A ‘Guidance and Appeals Panel’ (the Panel) will be established to identify and escalate systemic issues raised in the ART and to review decisions, which may be affected by error. This is designed to promote consistency in ART decision-making and increase confidence in it more generally.
The Panel can be referred matters from the President in the following circumstances:
- where the President is satisfied that an application for review to the ART raises an issue of significance to administrative decision-making, and it is in the interests of justice that the ART be constituted by the Panel; and
- after the ART makes its decision, a party may apply to the President to refer the matter to the Panel for review.
Three key points about the new Panel system are:
- If an ART decision, including a Panel decision, raises a question of law, that decision may be appealed to the Federal Court.
- There is no automatic right of review by the Panel. This President’s discretion to refer is guided by whether matters raise errors of fact or law, which materially affect ART decisions or involve issues of significance to administrative decision-making generally.
- The Panel will consider matters afresh and will have the same powers and procedures as an ordinarily constituted ART.
Appointments and qualification of members
Another key feature of the ART Bill is the introduction of a more transparent and merit-based process for the appointment of ART members. Aside from the appointment of Judicial Deputy Presidents, all member positions will be publicly advertised, and subject to competitive application process.
The ART Bill introduces more stringent qualification requirements of members. In summary:
- The President must be a Judge of the Federal Court of Australia.
- Judicial Deputy Presidents must be a Judge of the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 1).
- Non-Judicial Deputy Presidents must have been enrolled as a lawyer for at least 10 years and be either a former Judge or have substantial expertise in one or more areas relevant to the ART’s jurisdiction.
- Senior Members must have been enrolled as a lawyer for at least seven years, have at least seven years of specialised training, or have experience in a subject matter relevant to the ART’s jurisdiction.
- General Members must have been enrolled as a lawyer for at least five years, have at least five years of specialised training, or have experience in a subject matter relevant to the ART’s jurisdiction.
President’s increased powers and duties
The President will be provided with enhanced powers to manage the performance and conduct of members. The President will be required to make publicly available a code of conduct and a performance standard for members and establish requirements for disclosing and avoiding conflicts of interest.
Upon suspected breach of the code of conduct, the President may conduct an investigation. If the President reasonably believes there are grounds for termination (for example, if the member breaches the code of conduct or performance standard, or if the member fails without reasonable excuse to disclose a conflict of interest), they are required to advise the Minister. In turn, the Minister can recommend to the Governor-General that a member’s appointment be terminated.
Re-establishment of the Administrative Review Council
The ART Bill will re-establish the Administrative Review Council (Council), which will monitor the integrity of the administrative review system, inquire into and report on systemic challenges in administrative law, and oversee education and training for Commonwealth officials in relation to administrative law and decision-making.
The Council will comprise the President, the Commonwealth Ombudsman, the Australian Information Commissioner and appointed members who have extensive knowledge or experience in administrative law or public administration.
The President is required to report systemic issues within the ART to government entities, ministers and the Council. This will ensure that such issues are brought to the attention of those who make administrative decisions.
Impact on existing and future applications
Schedule 16 of the Consequential and Transitional Bill sets out the process for the transition of existing matters to the ART:
- If a proceeding in the AAT is not finalised before the transition time, it must be continued and finalised by the ART in a manner the ART considers efficient and fair.
- Before the transition to the ART, if a person was entitled to make an application to the AAT but did not, they may make an application to the ART. The person may make the application after the transition time if the time limit for making the application under the old law has not expired. Otherwise, the application must be made in accordance with the new law.
- A person who has lodged an application to the AAT will not need to submit a new application to the ART.
- If immediately before the transition time, a person was entitled to request reasons in writing for a decision made by the AAT, the person may make the request to the ART.
- The ART will replace the AAT in any pending proceedings before a court or tribunal where the AAT was a party.
Implications of the ART
While there are many similarities with the AAT, there are also important differences. The enhanced powers and procedures to enable the ART to respond flexibly to changing caseloads will hopefully mean that matters are progressed more efficiently, with fair and consistent outcomes.
The introduction of the Panel, the increased powers of the President and the requirement to publish a code of conduct and performance standards, all support these goals.
There is also likely to be greater scrutiny on ART decisions, given the clear commitment to transparency.
We look forward to navigating these changes and to the establishment of the ART in the near future.
If you have any questions in relation to the above changes and how they may impact you, please contact Stuart Marris.