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Understanding the changes resulting from the passage of the Administrative Review Tribunal Act

The recently passed Administrative Review Tribunal Act 2024 brings about a new system of federal administrative review, writes Loretta Houlahan.

user iconLoretta Houlahan • 08 August 2024 • The Bar
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The Administrative Review Tribunal Act 2024 (the ART Act), which passed the Parliament on 28 May 2024, establishes a new fit-for-purpose Federal Administrative Review body that will replace the 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.

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The bill details the tribunal’s membership, structure, review procedures and other matters. It also re-establishes the Administrative Review Council. Consequential amendments were also made by the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (which repeals the AAT Act) and make consequential amendments that cover the majority of the tribunal’s caseload. The Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Act 2024 was also passed and makes further consequential amendments to 110 Commonwealth acts that interact with the AAT Act to ensure continuity for the tribunal and its users.

The ART Act makes significant changes to the current system of administrative review.

 
 

The ART Act was 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 adviser, are members. The government moved parliamentary amendments to the package of bills implementing the ART in response to stakeholder feedback and to clarify aspects of legislative drafting. Among other things, the amendments:
    • Strengthened the merit-based appointment process for members.
    • Introduced a statutory review of the legislation to commence in five years.
    • Retained second review for social security matters where it currently exists in the AAT.
    • Reinstated the current approach to secrecy and non-disclosure obligations under the AAT Act imposed an obligation on advising the Administrative Review Council of actions taken in relation to systemic issues in making reviewable decisions.
    • Made improvements to the role and responsibilities of “litigation supporters”.
    • Facilitated publication of tribunal decisions with amending secrecy provisions in family assistance law (to allow de-identified decisions to be published).
While the ART objectives are largely the same as the current AAT objectives, there are some significant proposed changes as part of the new act, particularly with regard to increased powers and the appointment process. These proposed changes are set out below.

Key proposed changes

  1. Increased powers for registrars
There are increased powers for registrars, including the powers to dismiss applications if not made within a reasonable time, extend the 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.

  1. 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.

  1. 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.

  1. Performance management of members
The president will manage the performance of members, including implementing a Code of Performance for Non-judicial Members.

  1. 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:

  1. a) Own motion by the president to resolve matters raising issues of significance to administrative decision making, or where appropriate in interests of justice (s 122) e.g. Robodebt type issues.
  2. b) 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 (e.g. decisions relating to veterans’ legislation that should be made via the Veterans’ Review Board).

  1. 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 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.

“Litigation supporters” have been introduced to assist self-represented litigants where the tribunal deems the litigant requires representative support.

Now that the act has been passed by Parliament, it will be interesting to see whether the ART will be able to achieve its desired outcome of efficiency and transparency and, in particular, we will watch with interest the bedding down of the Guidance and Appeals Panel, the role of the litigation supporter and the re-establishment of the Administrative Review Council.

Loretta Houlahan is a senior adviser at Proximity.

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