After months of anticipation, the Administrative Review Tribunal (ART) has finally come into existence, replacing the Administrative Appeals Tribunal (AAT). It is intended to be "user-focused, efficient, accessible, independent and fair" and is the most significant reform to Australian federal administrative review for decades. Here at MinterEllison we will be tracking its implementation and development very closely.
Out with the old… Administrative Appeals Tribunal
On 14 October 2024 the AAT, which has been conducting independent merits review of administrative decisions since 1976, was abolished. On the same day, it was replaced by the ART.
All applications that were before the AAT will automatically transfer to the new ART. Parties will be notified and will not need to reapply to have their matter continue in the new Tribunal. The ART is required to finalise the proceedings in a manner that it considers efficient and fair (Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (C&T1 Act) Sch 16 item 24).
If a person was previously entitled to make an application to the AAT but did not, they may still make an application to the ART as long as the time limit for making the application to the AAT has not expired. Otherwise, including in terms of form, the application must be made in accordance with the new legislation (C&T1 Act Sch 16 item 20).
In with the new… Administrative Review Tribunal
The ART is established by the Administrative Review Tribunal Act 2024 (ART Act), which introduces significant reforms including:
- a simplified leadership and member structure
- merit-based appointments
- the re-establishment of the Administrative Review Council
- the creation of a Tribunal Advisory Committee and Guidance and Appeals Panel
- increased Presidential powers and expanded Member powers
- the replacement of the AAT divisional structure with 'jurisdictional areas' and sub-lists
Justice Kyrou, the former President of the AAT, will lead the ART through the period of reform and is its inaugural President. A large number of member appointments have been announced by the Attorney-General in recent months, comprising both familiar and fresh faces.
Jurisdictional areas
The ART is made up of 8 jurisdictional areas, each led by a jurisdictional area leader. They will be responsible for managing trends and changes in the area's caseloads, identifying systemic issues, facilitating the training and development of members and managing the performance and conduct of assigned members.
The jurisdictional areas are:
- Intelligence and Security
- Migration
- National Disability Insurance Scheme
- Protection
- Social Security
- Taxation and Business
- Veterans' and Workers' Compensation
- General
The President can assign members to multiple jurisdictional areas, allowing for greater flexibility in resourcing. The President may also establish lists within each area, led by a Deputy President or Senior Member, to focus expertise on particular types of applications.
The TAC and the GAP
The ART Act also establishes a Tribunal Advisory Committee (TAC), which consists of the President (the Chair of the committee), the Principal Registrar, the jurisdictional area leaders and such other members or staff members as the President nominates (ART Act s 236). It will promote the training, education and professional development of members, oversee the caseload of the Tribunal and oversee trends and patterns across, and systemic issues, arising in, the jurisdictional areas.
The Guidance and Appeals Panel or 'GAP', is one of the most significant new features of the ART, which provides a mechanism for escalating significant issues and addressing material errors in ART decisions. The aim is for it to promote consistent decision-making, rapid responses to emerging issues and increase confidence in Tribunal decisions.
Only the President may refer a matter to the GAP and can do so in one of two ways:
- the President considers an application for review of a decision made to the ART raises an issue of significance to administrative decision making and it is appropriate in the interests of justice that the ART be constituted by the GAP (ART Act s 122); or
- an application is made to the President to refer a substantive decision of the ART to the GAP, and the President considers that decision of the ART raises an issue of significance to administrative decision making and/or may contain an error of fact or law materially affecting the ART decision (ART Act s 128).
While the power to refer an application to the GAP is restricted to the President, they may delegate this power through another Act or instrument made under the ART Act. As at the commencement of the ART Act, no such instrument has been enacted and it remains to be seen what types of matters are referred and how common referral becomes.
A decision of the GAP becomes a 'Tribunal guidance decision' unless the President declares that it is not such a decision (ART Act s 109). The Tribunal (other than when the Tribunal is constituted by a member who, or members where at least one of whom, is a Judge) must have regard to any Tribunal guidance decisions in a proceeding that it considers raises similar facts or similar issues to a Tribunal guidance decision (ART Act s 110).
If a party is granted a second review before the GAP following an ART decision, the party can still then appeal that decision to the Federal Court on a question of law. If an application to refer an ART decision to the GAP is refused by the President, a party is still able to appeal from the original ART decision to the Federal Court on a question of law. The 28 day time limit in which to lodge the appeal is modified, as it does not include the time period between when the person applied for the decision to be considered by the GAP and the day the President referred the decision or refused the application (ART Act s 174(3)).
Procedural arrangements
The Administrative Review Tribunal Rules 2024 were published on 18 September 2024 and deal with matters such as the timeframes for making applications to the Tribunal, application fees, decisions that cannot be appealed to the GAP and authorisations for members, registrars and staff to exercise Tribunal powers and functions.
Draft Practice Directions have also been published which cannot be finalised and take effect until after the ART commences, and the TAC is consulted. The final practice directions will be published on the new Tribunal’s website.
We are here to help
The Public Law team at MinterEllison looks forward to working with our clients to ensure they are supported as we navigate through the various uncertainties and teething issues that are inevitable with any new institution.
If you wish to discuss how the transition to the ART may affect you, please feel free to contact us.