Introduction
On 3 June 2024, the Administrative Review Tribunal Act 2024 (ART Act) was passed in both houses, marking the establishment of a new Administrative Review Tribunal. From 14 October 2024, the ART will replace the Administrative Appeals Tribunal (AAT). The ART was established to address challenges that have surfaced over time with the AAT. The ART Act provides a comprehensive framework for the ART to improve the experience of those seeking review of government decisions and ensure that reviews are conducted effectively, efficiently and fairly (s9). In this article, we take a glance at the key fundamental changes that will take place from 14 October 2024.
The following pivotal features aim to uphold the objectives of the ART Act, fostering a fair and equitable review system.
Merit based system of selection
One significant reform is that members, including the President, will only be appointed through public, merit-based appointments (judicial appointments are an exception). A merit-based assessment assesses the comparative suitability of the candidates for the duties of the office, using a competitive selection process, and is based on the relationship between the candidates’ skills, expertise, experience and knowledge and the skills, expertise, experience and knowledge required for the duties of the office (s4). The assessment also considers the need for a diversity of skills, expertise, lived experience and knowledge within the Tribunal.
A non-judicial Deputy President must be enrolled as a legal practitioner for at least 10 years and either the person is a former Judge, or the Minister is satisfied that the person has substantial expertise in one or more areas relevant to the jurisdiction of the Tribunal (s207(3)). Senior or general members must be enrolled as a legal practitioner for at least seven or five years respectively, or the Minister is satisfied that the person has at the equivalent years of specialised training or experience in a subject matter relevant to the jurisdiction of the Tribunal (s208(3) and (4)).
Performance standards
One change under the ART Act is that the President must determine a performance standard for non-judicial members (s202). The ART Act also establishes the Tribunal Advisory Committee (TAC) which consists of the President, the Principal Registrar, the jurisdictional area leaders and such other members nominated by the President. One of the functions of the TAC is to promote the training, education and professional development of members (s236(4)(b)).
The President must prepare a yearly report on the management of the Tribunal which includes an overview of any actions taken during that year in relation to non-judicial members upholding the code of conduct or meeting the performance standard, as well as the training, education and professional development of members (s242(2)(j)).
Unlike the AAT, there are specified mechanisms in the ART Act for termination of appointment (s221). Termination will be by the Governor General on the recommendation of the Minister. Serious breaches of performance standards or code of conduct are instances that may result in the Governor General terminating the member’s appointment (s221(f) and (g)). These provisions aim to ensure members maintain and develop their expertise and comply with performance standards.
The Guidance and Appeals Panel (GAP)
A significant change of the newly enacted Tribunal is the GAP. The GAP serves as a mechanism for escalating any significant material errors or concerns in ART decisions and ensures consistency of decision-making.
The President decides which matters will be referred to the GAP in two circumstances
- on the President’s own initiative, for matters at first instance (where review not yet held) (s122). The President will need to be satisfied that the matter raises an issue of significance to administrative decision-making and that the referral to the GAP is in the interests of justice;
- where there is an application by a party to the GAP for a second merits review (s 128). The President must be satisfied that the Tribunal decision raises an issue of significance to administrative decision-making or that there is an error of fact or law (s128(2)).
The GAP is not confined by errors in the original ART decision. It can make its own findings of fact and can put in new evidence. Not all decisions can be referred to GAP. For example, applicants who have had a Tribunal decision concerning migration or protection cannot apply for those decisions to be referred to the GAP.
Decisions made by the GAP are called Tribunal guidance decisions (s109). Under s 110, the Tribunal must have regard to Tribunal guidance decisions that the Tribunal considers raise facts similar to the facts raised by the proceeding; or issues similar to the issues raised by the proceeding. An exception to this rule is where a member is a Judge (s110(2)).
The establishment of Tribunal guidance decisions is likely to promote consistency within the Tribunal’s decisions.
Unified case management system
The President will preside over a single practice system with a unified case management system. The AAT’s nine jurisdictions will be replaced by eight practice areas (s196(1)). The Minister may assign either or both of the President or a Non-Judicial Deputy President to be a leader of one or more jurisdictional areas (s197). Under s199, the President may assign a member to one or more jurisdictional areas if the President is satisfied that the member has the appropriate skills, qualifications and experience. This allows the President to assign lists and direct resources in response to changing caseloads between jurisdictional areas.
Increased powers for registrars
The ART Act allows for operational flexibility of the ART allowing the President to authorise a registrar to:
- make decisions with respect to extensions of time to make an application for review;
- determine whether a person’s interests are affected;
- shorten or extending the time for a decision-maker to give documents relevant to the review;
- conduct directions hearings;
- make a decision by consent; and
- dismiss an application in specified circumstances.
The Administrative Review Council (ARC)
The ARC was originally established in 1976 by the Administrative Appeals Tribunal Act 1975 as an independent policy advisory board. It was tasked with inquiring into and advising on the federal administrative law system, administrative decision-making practices, and tribunal practice and procedure as well as to promote knowledge about the administrative law system and facilitated the training of decision-makers. The ARC was subsequently defunded.
Part 9 of the ART Act re-establishes the ARC. The ARC is to consist of the President, the Commonwealth Ombudsman, the Australian Information Commissioner, and at least three, but not more than 10, other members (s247). The purpose of the ARC is to monitor the integrity and operation of the administrative review system and inquire and report on systemic issues in the making of administrative decisions (s249). The ARC will also be tasked with an educational function to provide training and guidance to Commonwealth entities.
Conclusion
While there are many similarities between the AAT and the ART, as set out above, there are also fundamental differences. The operational and functional reforms made to the ART are likely to improve on the efficiency and quality of decision-making. It is important for practitioners to be aware that subordinate legislation is currently being developed to provide detail as to the operation of the ART Act including rules covering matters such as: timeframes for making applications; prescribing matters that decision-makers must have regard to when giving notices of decisions; setting fees; and specifying additional Tribunal powers and functions that the President may authorise.
We look forward to navigating the changes introduced by the ART Act in the very near future!
This article was written by Kristina Mihalic, Partner, Qi Qi Ren, Senior Associate and Sophia Russo, Solicitor.
As explained above, the AAT has separate divisions, including the Migration and Refugee Division. The ART Act moves away from rigid divisions and introduces eight jurisdictional areas, with the conferral of powers on the President to establish areas, determine applicable practice directions and provide flexibility with allocating Tribunal Members to areas. Significant changes have been introduced for the Migration Division. Keep an eye out for an article by HWLE Partner, Sarah Thompson, who will be exploring the changes to the Migration Division as a result of the introduction of the ART. The article will be published soon!
