Overview of draft Administrative Review Tribunal legislation
The Australian Government has introduced legislation that would abolish the Administrative Appeals Tribunal (AAT) and establish a new, fit-for purpose administrative review body, to be named the Administrative Review Tribunal (the Tribunal).
On 7 December 2023, the government introduced 2 bills:
- the Administrative Review Tribunal Bill 2023 (the ART Bill), which would establish the new Tribunal and re-establish the Administrative Review Council
- the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023 (Consequential and Transitional Bill), which would abolish the AAT, make amendments to a range of Commonwealth Acts, and enable the transition of AAT staff, operations and matters to the Tribunal.
On 7 February 2024, the government introduced:
- the Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Bill 2024 (Consequential and Transitional Bill No. 2). Following consultation with state and territory governments, the Bill would make amendments to 110 Commonwealth Acts to ensure continuity for the Tribunal and its users.
The legislation implements:
- all 3 recommendations from the Senate Legal and Constitutional Affairs References Committee inquiry into the performance and integrity of Australia's administrative review system
- 4 recommendations from the Royal Commission into the Robodebt Scheme
- the Government response to 2 recommendations from the Rapid Review into the Exploitation of Australia's Visa System.
The Tribunal's commencement date will depend on timing of passage of the legislation, as well as other transitional arrangements.
Administrative Review Tribunal Bill 2023
The ART Bill is intended to establish a unified, cohesive Tribunal with flexible powers and procedures that best meet the needs of applicants. The Tribunal is intended to play a vital role in protecting the rights and interests of the members of our community, and in ensuring that the government and public service act within the bounds of the law.
The Tribunal would be 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 Tribunal.
Fair and just
The bills provide for a mechanism of review that is fair and just, and incorporates core features of merits review, expressed for a contemporary context.
The ART Bill includes general principles relating to proceedings to ensure they are fair and just, including that:
- the Tribunal has discretion in how it runs a proceeding (subject to the legislation and the rules)
- the Tribunal must operate with as little formality and technicality as is appropriate
- proceedings must, as far as practicable, be accessible for parties to a proceeding
- the Tribunal is not bound by the rules of evidence but may inform itself on any matter in any manner it considers appropriate
- the Tribunal may determine the scope of the review
- the Tribunal may exercise the powers of the decision‑maker
- the Tribunal must ensure each party to a proceeding is given a reasonable opportunity to present their case.
Timely, informal and inexpensive
The ART Bill would equip the Tribunal with powers and functions to support it to resolve applications in a timely manner, with as little formality and expense as is consistent with reaching the correct or preferable decision. This would include:
- a new structure that harmonises procedures in the different jurisdictions of the Tribunal, and provides for more flexible allocation of resources
- powers to give directions about the Tribunal's procedures and consequences for failure to comply with them
- circumstances where a matter can be resolved without a hearing
- the ability for an agency party to elect not to participate in the proceeding, and powers for the Tribunal to order them to participate if necessary
- powers to refer matters to dispute resolution and to make decisions by agreement of the parties
- the ability for certain powers and functions to be performed by authorised persons within the Tribunal, with appropriate safeguards.
Accessible and responsive
The Tribunal would engage with a broad range of people who may require additional, tailored support to meaningfully participate in Tribunal processes. This may include, for example, people with disability and people who do not speak English as a first language (or at all).
In the ART Bill, ‘accessible' means enabling people to apply for review and participate effectively in proceedings. This may involve the Tribunal making appropriate adjustments to facilities, technology or access to information.
Powers and functions that would support this include:
- the ability for the Tribunal to appoint a litigation guardian for a party to a proceeding in appropriate circumstances
- the obligation to appoint an interpreter in certain circumstances
- the ability for the President of the Tribunal to make practice directions to promote accessibility and responsiveness to users.
Transparent and high-quality government decision-making
The ART Bill would establish the Administrative Review Council to:
- monitor the integrity of the Commonwealth administrative review system
- inquire into and report on systemic challenges in administrative law
- support relevant education and training for Commonwealth officials.
The ART Bill would also establish a guidance and appeals panel within the Tribunal. The guidance and appeals panel would provide a mechanism for escalating significant issues and addressing material errors in Tribunal decisions. This would promote consistent Tribunal decision‑making and rapid responses to emerging issues.
The ART Bill would provide the Tribunal with powers and functions that support it to promote transparent and high-quality government decision-making, including:
- requirements for jurisdictional area leaders to identify systemic issues identified in administrative reviews
- an explicit function for the President to inform ministers and the Administrative Review Council of systemic issues
- scope to publish Tribunal decisions generally, and an obligation to publish decisions of the guidance and appeals panel and any other decision that raises significant issues of law or have major implications for Commonwealth policy.
Public trust and confidence in the Tribunal
The ART Bill would enshrine a transparent and merit-based selection process for members, who are responsible for making the Tribunal's decisions. This is an important reform to ensure independent and high-quality decision‑making within the Tribunal.
Other elements of the ART Bill that recognise the importance of public trust and confidence in the Tribunal include:
- the requirement for the President to make a publicly-available member code of conduct and performance standard
- the ability for the President to direct members, investigate conduct and temporarily restrict a member's duties if there is a performance or conduct concern
- the ability for the Governor-General to terminate a member's appointment for breaches the code of conduct, performance standard, serious misconduct or conviction of an indictable offence
- clear roles and qualification requirements for senior leadership of the Tribunal, including requirements to consider stakeholder feedback in advising the President on key decisions
- requirements for disclosing, avoiding and managing conflicts of interest
- the opportunity to refer Tribunal decisions to the guidance and appeals panel if there may have been a material error
- enhanced requirements for reporting on how the Tribunal is meeting its objective.
Structure of the Tribunal
Under the ART Bill, the Tribunal would have a simplified membership structure, with 4 levels of membership:
- Deputy President (Judicial and Non-Judicial)
- senior member
- general member.
The President would be supported by a CEO and Principal Registrar, as the head of the APS agency. The President and Principal Registrar would also receive advice and support through a Tribunal Advisory Committee consisting of key senior leaders in the ART.
The Tribunal would be made up of 8 jurisdictional areas, each of which will be led by a jurisdictional area leader who is the President or a Deputy President:
- Intelligence and Security
- National Disability Insurance Scheme
- Social Security
- Taxation and Business
- Veterans' and Workers' Compensation.
The President may establish lists within each jurisdictional area, led by a Deputy President or Senior Member, to focus expertise on particular types of applications.
Consequential and Transitional Bill No. 1
Consequential and Transitional Bill No. 1 would repeal the Administrative Appeals Tribunal Act 1975 (AAT Act). It would make consequential amendments to 138 Commonwealth Acts, covering the majority of the Tribunal's caseload.
The Bill would amend legislation relating to reviews of taxation and charity, social security, the National Disability Insurance Scheme, migration, veterans' entitlements and security and intelligence decisions to ensure they are fit for purpose.
Through significant reforms to the Migration Act, the Bill would assist to reduce delays and backlogs in migration and refugee matters, increase fairness, and support the integrity of the migration system.
Additionally, Consequential and Transitional Bill No. 1 would:
- retain a range of existing rules for Tribunal reviews of taxation and charity matters
- abolish the Immigration Assessment Authority and harmonise provisions relating to reviews of migration and refugee decisions, providing a broader suite of tools for the efficient and effective resolution of these matters.
- provide a more fit-for-purpose style of review of Social Security and Child Support decisions, whereby matters will be triaged and resolved according to their complexity, and consideration given to whether the decision-maker's participation will assist a matter's effective and efficient resolution
- continue existing pathways and protections for the review of matters involving sensitive national security or intelligence information, with enhancements to simplify drafting and promote consistent, effective approaches
- maintain merits review in 2 separate bodies as a unique feature of veterans' entitlement law, with matters reviewed in the Veterans' Review Board continuing to also be appealable to the Tribunal
- promote consistency and simplicity by repealing special arrangements that overlap, duplicate or unnecessarily displace core provisions of the ART Bill.
Consequential and Transitional Bill No. 1 also contains measures to enable the transition from the AAT to the new Tribunal. This includes transitioning the Tribunal's active, pending and potential caseloads, including matters before the courts, to minimise disruption and to maintain review rights.
Consequential and Transitional Bill No. 2
Consequential and Transitional Bill No. 2 would make consequential amendments to 110 Commonwealth Acts that interact with the AAT Act to ensure continuity for the Tribunal and its users.
The changes in the Bill are mainly technical amendments that would 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.
Additionally, Consequential and Transitional Bill No. 2 would:
- harmonise and streamline provisions where appropriate, to better support users, and improve predictability in how matters progress through the Tribunal
- reduce the complexity of the Tribunal's operating environment, with more scope for shared technology, forms, staff and member resources
- remove the administrative review pathway for preventative detention order (PDO) decisions, so that review of those decisions remains within the purview of the courts
- extend external merits review to decisions under the Australian Citizenship Act 2007 to not give a person evidence of their Australian citizenship
- 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.
The introduction of Consequential and Transitional Bill No. 2 follows consultation with states and territories and supports the establishment of the new Administrative Review Tribunal. Together with Consequential and Transitional Bill No. 1, it would make the consequential and transitional amendments needed to effectively implement the reform.
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