The merits of the Administrative Review Tribunal

The Administrative Review Tribunal has commenced operations and replaced the Administrative Appeals Tribunal, introducing a new system of federal merits review and making changes to practice and procedure.

Commonwealth Agencies and organisations across many industry sectors should become aware of the changes, because the new Tribunal has jurisdiction to review federal administrative decisions ranging from migration, customs and social security matters, through to Freedom of Information Act 1982 (Cth) decisions, taxation determinations, and certain decisions under Commonwealth legislation such as the Patents Act 1990 (Cth).

The AAT vs the ART in a snapshot

On 14 October 2024, the Administrative Review Tribunal (ART) commenced operations, replacing the Administrative Appeals Tribunal (AAT), which had been the forum for federal merits review proceedings since 1 July 1976.

The new ART is established by the Administrative Review Tribunal Act 2024 (Cth) (ART Act), which implements significant reforms compared to the former AAT. It introduces new practices, powers and procedures that are designed to address institutional challenges experienced by the AAT. Underlying it is the aim of delivering an accountable, transparent and unified system of federal merits review, while preserving key powers and mechanisms for achieving procedural fairness that were available to the AAT.

The objective of the ART Act will be to provide “an independent mechanism of review that:

1. is fair and just; and
2. ensures that applications … are resolved as quickly, and with as little formality and expense, as … proper consideration … permits; and
3. is accessible and responsive to the diverse needs of parties ..; and
4. improves the transparency and quality of government decision‑making; and
5. promotes public trust and confidence in the Tribunal.” (section 9, ART Act)

Merit-based system of selection for ART members

Positions in the ART will be advertised, with appointments to be made through a transparent selection process that is competitive and merit-based. The suitability of candidates for appointment will be assessed by an assessment panel against the operational needs of the ART, and more stringent qualification requirements than were required for appointment to the AAT, as summarised below:

Establishment of Guidance and Appeals Panel

The ART Act establishes a Guidance and Appeals Panel (GAP) as part of the ART. The ART will be constituted by members of the GAP when an application raises an issue of significance to administrative decision-making generally and the President refers it to the GAP.

The GAP will also provide an internal review of ART decisions which raise an issue of significance to administrative decision-making, or where the ART decision may be materially affected by an error of fact or law. Its internal review function is not as confined as the scope of judicial review, and it will conduct a review de novo of proceedings referred to it.

Parties may apply in prescribed circumstances for the GAP to conduct an internal review of certain ART decisions. However, suitable matters may only by referred to the GAP by the President and there is no automatic or inherent right of review. Parties will also be expected to exhaust first-tier review rights where available.

A decision made by the GAP in a proceeding that was referred to it on the basis that the proceeding raises an issue of significance to administrative decision-making is a “Tribunal guidance decision”, unless made by consent or declared by the President not to be a guidance decision. When making decisions in proceedings, the ART is required to have regard to Tribunal guidance decisions that it considers raise similar facts or issues to those raised in the proceeding.

Re-establishment of Administrative Review Council (ARC)

The AAT Act already established an ARC, but in 2015, the ARC had effectively ceased to operate after its work had been defunded.

Under the ART Act, the ARC is continued, and will consist of the President, the Commonwealth Ombudsman, the Australian Information Commissioner, and at least three but not more than ten other members. It remains to be seen how funding that has been provided for the ART will be allocated to enable the functions of the ARC to resume once again.

Increased powers for registrars

Registrars may be authorised under the ART Act to exercise a broader range of functions and powers than were previously available to registrars of the AAT. Increasing the number of ART staff who may be authorised to perform delegated functions is likely to facilitate the ART managing its caseload more effectively, and to finalise review applications as efficiency as possible.

Tribunal case management

The ART’s caseload will be managed using a consolidated and unified case management system established under the ART Act.

The nine divisions of the AAT have been structured into the following eight “jurisdictional areas” of the ART: general, intelligence and security, migration, NDIS, protection, social security, taxation and business, and veterans and workers compensation.

New powers and procedures under the ART Act give the President increased power and flexibility to allocate resources to ensure that the ART can respond to changes in its caseload and operational demands. The President can create and abolish lists as sub-areas within jurisdictional areas, and the Attorney-General can (in consultation with the President) assign the President or a non-judicial Deputy President to be a leader of a jurisdictional area.

Jurisdictional area leaders perform a wide range of functions, which range from assisting the President to ensure that the ART operates efficiently and effectively across all jurisdictional areas, assisting the President to train and manage the performance and conduct of ART members, and identifying systemic issues arising in the ART’s caseload.

Changes that practitioners should be aware of include that in appropriate cases:

• “litigation supporters” will now be able to provide support to applicants;
• parties may elect to not participate in proceedings.

Notwithstanding these changes, parties, their representatives and decision-makers will continue to have a positive obligation to assist the Tribunal.

Standards that are enforceable for members

The ART Act introduces enforceable performance standards for non-judicial members, imposes a broader obligation on members to disclose relevant interests and introduces new powers and procedures to manage and monitor the conduct and performance of individuals appointed to the ART. New procedures are introduced to facilitate the termination of appointments where conduct and performance standards are not met.