Australian Government: Attorney-General's Department
Australian Government: Attorney-General's DepartmentAchieving a Just and Secure Society

Amalgamating Commonwealth Tribunals - February 1999

The Government's accountability through the proposed Administrative Review Tribunal (ART)

Paper presented to Managing Service Provider Liabilities and Accountability Conference Sydney, 16 February 1999, by Sue Pidgeon, Assistant Secretary, Civil Justice Branch

Table of contents

Introduction

In February 1998, the Government announced its intention to create a new Administrative Review Tribunal (ART) by the amalgamation of four tribunals:

The Government's decision followed recommendations by the Administrative Review Council, in its Better Decisions report,1 that several merits review tribunals be amalgamated into one tribunal. The Council considered that an amalgamated Tribunal would be better able to advance the objectives of the merits review system and would be better able to improve the quality and consistency of Government decision making.2

The Council recommended the inclusion of the Veterans' Review Board (VRB) in the new amalgamated tribunal. However, the Government decided to retain the VRB in its present form in recognition of the special needs of veterans for a dedicated review body.

Following the Government's announcement last year, the Federal Attorney-General's Department undertook an extensive consultation process involving the tribunals themselves, departments and agencies with significant review jurisdictions, and a range of relevant organisations. These included the Administrative Review Council, the Law Council of Australia, the Australian Council of Social Services, the National Association of Community Legal Centres, the National Welfare Rights Network, National Legal Aid, the Australian Law Reform Commission and organisations representing the specific interests of tribunal users. Since then the Government has been considering the results of that consultation and making appropriate adjustments to the ART proposal to ensure that it will meet the objectives of the reform. The Department has also been consulting closely with the four tribunals and their portfolio departments on practical implementation details.

The full details of the ART are still being finalised, and there will be further consultation on issues such as the scope of merits review and what role Government policy should play. These are issues that the Government has not yet considered. I can however outline for you today the proposed role and jurisdiction of the ART, its structure and how the Government expects it to differ from the existing tribunals. I will also outline the effect amalgamation will have on the role of legal advisers or advocates and discuss the question of government accountability to the public through the ART.

Structure, role and jurisdiction of the ART

The Government intends the ART to be a flexible, accessible, user-friendly tribunal which will retain the best features of the existing tribunals while increasing efficiency by sharing management, corporate support and registries. Informality and independence will be essential elements of the ART. Its objective will be to provide review that is fair, just, economical, informal and quick.

The ART is intended to take over the merits review role of the current AAT, SSAT, IRT and RRT.3 Its six divisions will reflect the main review jurisdictions:

Each of the divisions will be headed by an Executive Member and will have the flexibility to adopt procedures that best meet the needs of the respective jurisdictions and applicants.

The President will have overall management responsibility for the Tribunal, in consultation with the Executive Members. The President will issue directions to promote consistency and best practice across the ART. However, to enable each division to adopt procedures best suited to its jurisdiction and applicants, the Executive Members will also be able to issue directions for their divisions, consistent with those of the President. (Directions by the President or Executive Members will not of course relate to the making of individual decisions by members.)

The structure and operations of the ART will be set out in an Administrative Review Tribunal Act and in legislation relevant to particular jurisdictions. For example, the Migration Act will contain provisions which will apply to the Immigration and Refugee Division, just as it now governs the operations of the IRT and RRT. Similarly, the Social Security Act will contain a number of provisions governing the Income Support Division just as it now provides for the operation of the SSAT. The Taxation Act will be relevant to the operations of the Taxation Division and so on. This is exactly the same as the current situation except that the ART Act will have over-riding provisions on some matters, including provisions relating to the protection of the independence of the Tribunal.

Role and jurisdiction

The ART will have the same first tier merits review role as the four tribunals that are being amalgamated. That means that it will take over from the SSAT, IRT and RRT the role of providing merits review of income support, immigration and refugee decisions respectively. It will also take over all the AAT's jurisdictions to provide first tier review of decisions. (By first tier review I mean the first opportunity to have a decision reviewed by an external tribunal.) These comprise several hundred jurisdictions, including taxation, customs, freedom of information, workers compensation and many more. At latest count there were 317 pieces of legislation which conferred jurisdiction on the AAT and which will confer jurisdiction on the ART.

Second tier review

The AAT currently provides second tier review - that is an opportunity to appeal against a first tier tribunal decision - in two jurisdictions. It can review decisions of the SSAT and the VRB. Other applicants, whose first tier review right is to the AAT itself, have no such second tier right. The ART, unlike the AAT, will provide second tier review in a wide range of jurisdictions. While this second tier review will be available in limited circumstances and only by leave,4 it is still a positive step for the many jurisdictions where there has not been a right to any second tier review up until now.

I should mention that the current rights to appeal a decision of the Veteran's Review Board to the AAT will not change when the ART takes over the role. The ART's Veterans Appeals Division will hear them as second tier reviews. In other jurisdictions, second tier review by the ART will be limited to cases which raise a principle or issue of substantial general significance, or where the parties agree that the decision under review involves a manifest error.

In limiting the grounds for second tier review, the Government agrees with the Administrative Review Council that access to second tier review should not be automatic.5 The Council was critical of the current system whereby cases are presented for second tier review simply because the applicant would like a decision reconsidered. There is no effective mechanism for ensuring that particular attention is given to cases having potential normative effect.6 The Government agrees that one external independent merits review should be sufficient in most cases and that second tier review should focus on the range of cases that raise issues of general principle and cases involving manifest errors.7 The Council recommended a further ground for review in cases where new information becomes available, but the Government does not consider that this warrants a second tier review. Rather, new information becoming available after a review decision has been finalised should be the subject of a new application to the agency.

On the question of manifest error, it has been argued that it is unrealistic to restrict second tier review to cases where both parties agree there is an error. The Council recommended instead that the President should decide if there is manifest error. However, the problem with that approach is that the President or delegate would have to consider the question of manifest error every time one party asserts there is one. In effect, the President or delegate would be reviewing the case in the process of determining if there is manifest error, which would undermine the intention of limiting access to second tier review. Some have suggested that there would never be a case where both parties would agree that there is a manifest error. However I would expect agencies to be ready to agree where a manifest error has occurred, even where to do so would benefit the applicant. I have no doubt that a refusal to do so, where an error is manifest, could be the subject of accountability mechanisms such as the Commonwealth Ombudsman. It may be that individual applicants may not be as ready to agree if the agency identifies an error. If so, it is the applicant who benefits most from the rule that both parties must agree.

There has been concern expressed that applicants to the Income Support Division will miss out on the automatic right to seek two levels of review that they currently enjoy through the SSAT and AAT. However, the Government's view is that in most cases one external review of an agency decision should be sufficient. In most other jurisdictions only one has been available up until now. The focus of the merits review system should be on promoting and encouraging the right decision at the earliest possible stage and not encouraging more bites at the merits review cherry than are necessary. This is the reason for restricting the availability of second tier review to cases which raise significant issues of principle or where there has been manifest error.

Appeal to the Federal Court or review under the Administrative Decisions (Judicial Review) Act will continue to be available on the same basis as it is currently.

How the proposed Administrative Review Tribunal will be different from the tribunals it replaces

The creation of the ART is not just a cobbling together of four tribunals who will share corporate services but otherwise do their own thing. As far as possible, the Government wants the ART to develop a flexible, non-adversarial culture across the tribunal, with an emphasis on informality and accessibility. The Government is keen on maximum use of alternative dispute resolution and informal hearings to resolve cases. In many cases, the relevant agency will not attend hearings but will simply provide the case file or relevant documents to the Tribunal, as currently happens in the SSAT and the two immigration tribunals.

To achieve these objectives, the tribunal will of course be adopting many of the practices and procedures of the existing tribunals. Where procedures are working well, I would expect the relevant division of the ART to continue to use them after amalgamation. In this way, the new divisions may in many ways look and operate in a very similar way to the existing tribunals. The SSAT, for example, already works in a very informal, non-adversarial way. I would not expect that to change when it becomes the Income Support Division. There is likely to be more change in the jurisdictions which currently have more formal, quasi-judicial hearings. In many cases, the matters being heard do not warrant such a formal approach. In the ART, court-like hearing rooms that are still used in some registries of the existing Tribunals will be replaced with meeting or conference rooms. Multi-member panels will be less common, being replaced by single member panels in many cases. Reasons will generally be given orally, with written reasons being provided on request or where the ART considers the decision should be in writing due to its significance or normative value.8

The Government does recognise, however, that there will be a proportion of cases which will require more formal proceedings - examples might be more complex taxation or commercial cases. The divisions of the ART will have the flexibility to adopt procedures which suit the cases in hand.

This is an important point. None of the procedural reforms proposed to be implemented in the ART is intended to be applied across the board in a blanket or simplistic fashion. The overriding message is that procedures and practices should be tailored to suit individual cases and to suit the needs of particular jurisdictions and their client groups. Different divisions will and should have different procedures, just as the specialist tribunals have evolved procedures that are particularly suited to their caseloads. At the same time, good ideas in one division may well spread to others, as the divisions have an opportunity to see and assess the procedures used in other parts of the tribunal.

Qualification for membership

The move away from a quasi-judicial approach will also be reflected in the appointment of members and the President. Unlike the AAT, the President will not need to be a judge. (This is already the case with the three other tribunals.) The President will be appointed by the Governor-General for a fixed term. It should be noted that the heads of the SSAT, IRT and RRT are all appointed on fixed terms.

Similarly, not all members will be lawyers. This has been criticised, particularly by the legal profession itself, but I should point out that the majority of members of the current tribunals are not lawyers. The criteria for appointment as a member of the ART will include the possession of appropriate skills and experience. There will certainly need to be a reasonable proportion of members with legal qualifications - and all will need legal skills - but other qualifications are also important.

The Government expects there to be a wide range of skills and experience among members, reflecting the wide range of jurisdictions covered by the ART. It also expects them to have analytical skills, communication and interpersonal skills and attributes such as empathy, sound judgment, flexibility, and independence, as well as legal skills. The Government does see that some experience in government or in administrative decision making would be desirable as well but that does not mean that the ART will be stacked with former bureaucrats.

There has been a misunderstanding that the Government intends the ART members to be at the same level as the agency officers who make the original decision. This has been seen as a down-grading of merits review. In fact the ART members will be higher level decision makers as is the case in the existing tribunals.

Selection

The ART Act w ill require an independent process, managed by the ART itself, for selecting suitable candidates for appointment as members. Currently there are a range of processes used by the tribunals to recommend appointment of members. In each case, it is the tribunal's portfolio Minister who decides who to put forward to the Governor-General for appointment. That will not change with the ART. However, under the proposed ART Act, the relevant Minister will only be able to put forward candidates found suitable by the ART's independent selection process. That is an innovation which will ensure greater independence than currently exists in making appointments to merits review tribunals.

Members of the ART will be appointed for fixed terms. Again, some have seen this as an undermining of independence but it is hard to see how that argument can be sustained. Only a small proportion of the members of the current tribunals are appointed with tenure. All the rest are for fixed terms. Other statutory officers who are seen as independent, such as the Ombudsman and the Auditor-General, are appointed for fixed terms. Tenure is clearly not a prerequisite for independence.

Role of legal advisers and advocates

One aspect of the ART proposals that has attracted a lot of attention is the role of legal advisers or advocates. Currently the role of legal advisers differs across the four tribunals. In the AAT and the SSAT legal representation is permitted as of right. In the two migration tribunals, the role of legal advisers is much more restricted. As part of the move away from a quasi-judicial approach, the Government proposes that legal representation will not be automatic in the ART but will be governed by portfolio legislation (such as it is now under the Migration Act) or practice directions. This does not mean - as some media reports would have it - that there will be no legal representation allowed. The ART will not be a lawyer free zone! Rather, where portfolio legislation does not apply, the tribunal will consider the circumstances in which legal representation would be desirable or necessary and develop practice directions accordingly. In some cases there will be no change from the current situation - for example it is expected that the Migration Act will continue to limit the role of legal advisers in migration and refugee cases.

Some of the factors I would expect the tribunal to take into account in preparing its practice directions include the complexity of the issues and the capacity of the applicant to represent him or herself. I should stress that the Government expects the majority of cases to be heard without the agency being present, as now happens in the SSAT and the immigration tribunals. In these circumstances there should be no need for legal representation for many straightforward cases. Obviously representation may be needed in even a very simple case where the applicant has language difficulties, has a disability which would make it more difficult to explain his or her case or is otherwise in need of assistance.

Where the agency does attend a hearing there is a greater argument for allowing the applicant to be represented and I am sure the tribunal will take that into account. It is also likely that representation will be allowed for complex matters or in matters that tend to raise technical legal issues. The Government is not trying to ban lawyers but rather to ensure that straightforward cases are not made more formal and adversarial by the unnecessary involvement of legal representatives.

Representation, where permitted, may not always be by lawyers. Subject to portfolio legislation, the tribunal will have a discretion to permit other representatives to assist applicants and act as advocates. This is already the case in the existing tribunals.

Government accountability to the public

You have probably heard concerns expressed that the ART will not be independent of the executive arm of Government and that therefore the Government's accountability to the public will be diminished. The focus of these concerns seems to be:

Funding arrangements

The Government proposes that the ART's divisions be funded through the running costs of the relevant portfolios. In other words, funding for the Immigration and Refugee Division should come from the Department of Immigration and Multicultural Affairs, the funding for the Taxation Division would come from Treasury, the funding for the Veterans' Appeals Division would come from the Department of Veterans' Affairs and so on. The Commercial and General Division will have too many portfolios involved and so will need to be funded either through the Attorney-General's department or from a direct appropriation from the Budget.

This is not a new idea. Funding for the SSAT, for example, currently comes from the Department of Family and Community Services and the arrangement works very well. There has been no suggestion that the arrangement has interfered with the independence of the SSAT. Like the SSAT arrangement, the funding of ART divisions will be tied to workload and caseflow. The President of the ART will develop resource agreements with each of the relevant departments setting out the funding formulas.

Some commentators have expressed the fear that the portfolio departments will have too close a relationship with the division they are funding and may use the funding to influence decision making. However, it will be the ARC President, not the individual divisions, who will negotiate the resource agreements with departments - the funding arrangement is with the ART as a whole. The Attorney-General's Department will be closely monitoring the funding arrangements to ensure that they relate only to workload and case flow, and are not used to influence the operations of the divisions or the content of decisions. In my view it would be unlikely that departments would want to undermine the effectiveness of the tribunal by restricting its funding, as some have suggested. It is in a department's interests to have reviews of its decisions completed as quickly as possible. Departments would not want to see the relevant division of the ART building up backlogs as a result of inadequate funding.

Independence of the President

It is interesting that there has been so much emphasis by critics of the ART on the fact that the President will not need to be a judge and will be on a fixed term rather than have tenure. They suggest that the ART cannot be independent if it is not headed by a judge. A judge certainly brings with him or her the perception and reality of independence. However, only one of the current tribunals - the AAT - is headed by a judge. All the other tribunal heads are statutory officers appointed on fixed terms. The ART President will be appointed by the Governor-General in the same way. As I mentioned earlier, other independent statutory officers, such as the Ombudsman and Auditor-General, have no difficulty maintaining their independence while on fixed terms.

Independence of members

The same criticism has been levelled at the proposal that members of the AAT will not have tenure but be on fixed terms. This criticism ignores the fact that by far the majority of members of current tribunals are on fixed terms. Members of the ART will be no less independent than the members of the current tribunals.

Concern has also been expressed that the portfolio Minister relevant to each division will be responsible for recommending to the Governor-General appointments to that division. Some have seen this as giving Ministers much greater power than they currently enjoy. This is a nonsense, as the Minister for Family and Community Services currently recommends to the Governor-General who should be appointed to the SSAT. The Minister for Immigration and Multicultural Affairs does likewise for the RRT and the IRT. The Minister for Veterans' Affairs recommends appointments to the VRB. This approach will be adopted for all divisions of the ART.9

As mentioned earlier, the ART will have an additional safeguard that is not present in the current tribunals. That is the provision in the ART legislation for an independent process, managed by the ART, for identifying suitable candidates for appointment. Ministers responsible for appointments to ART divisions will not be able to recommend to the Governor-General candidates who have not been through that process and been found suitable. This transparency in the selection of members of a merits review tribunal is an important innovation.

Powers of Ministers

In addition to the power to recommend appointments, some commentators have asserted that Ministers will have unprecedented powers in relation to the ART, including powers to give directions to the relevant ART division. This is not the case. The only proposal the Government has made in this respect is to include in the ART legislation the power that currently exists in the Migration Act to give directions to the RRT and IRT. In the ART, this power will relate to procedural matters only, not to the content of decisions.

There is a separate question concerning what role Government policy - such as Ministers' policy statements - should play in merits review. However this has not yet been considered by Government. It is intended that this issue will be part of a further consultation process before any decision is made.

As the ART proposal currently stands, the Ministers with responsibilities in relation to ART divisions have no more power than Ministers currently have in relation to Tribunals within their portfolios.

Government accountability

Once the myths and misunderstandings about the ART are cleared away, I believe it is clear that the ART will be as independent and as effective as the existing tribunals. There will be no diminution, therefore, in the accountability of the Government to the public. Government accountability could even be enhanced if the ART is successful in increasing accessibility of merits review, which was one of the objectives of the Administrative Review Council in recommending amalgamation and of the Government in going ahead with it.

Endnotes

1Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No. 39, 1995.
2Ibid page 160
3With some changes to the second tier review role of the AAT - this is discussed later.
4Appeals from the Veteran's Review Board will continue to be available without the leave requirement.
5Better Decisions Report op cit pages 152-156
6Ibid page 152
7Ibid page 153
8The ART will decide which decisions to publish.
9The Attorney-General will be responsible for recommending appointments of members to the Commercial and General Division which covers jurisdictions relating to all portfolios.