New Administrative Review Tribunal – a paradigm shift in administrative review in Australia
Published on August 29, 2024 by Alexander Hughes and Selwyn Black
The establishment of the Administrative Review Tribunal (ART) signifies a major change in the administrative law of Australia. Administrative Law involves many decisions with significant consequences and gives some protection against secret or bad decision making.
The ART, along with the related Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 and Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Act 2024, creates a new system for the independent review of Commonwealth administrative decisions based on their merits. This set of laws replaces the long-established Administrative Appeals Tribunal (AAT), which has been a fundamental part of Australian administrative law since 1976.
Objectives and structure of the ART
The expressed aims of ART to provide an independent, fair, and just mechanism for reviewing administrative decisions. While the broad objectives of the ART echo those of the AAT, namely promoting transparency, accessibility, and quality decision-making, the ART represents a departure from its predecessor in several key respects
One of the most notable changes is the abolition of the AAT’s divisional structure, replaced by a system of jurisdictional areas and lists. This reorganisation aims to streamline processes and reduce the complexity.
The ART will comprise eight jurisdictional areas including General, Intelligence and Security, Migration, National Disability Insurance Scheme, Protection, Social Security, Taxation and Business, and Veterans’ and Workers’ Compensation.
Key reforms and innovations
The ART introduces several significant reforms aimed at enhancing the Tribunal’s functionality and accountability:
- Guidance and Appeals Panel (GAP) – the ART will feature the GAP, a specialised panel tasked with two primary functions. First, it will hear proceedings at first instance that the President refers due to their significance to administrative decision-making and in the interests of justice. Second, the GAP will conduct a second review of ART decisions where the President identifies potential errors of fact or law that materially affected the decision. This dual role is intended to ensure consistency and quality in the Tribunal’s decisions.
- Member standards and qualifications – the ART sets new conduct and performance standards for its members, establishing minimum qualifications and mandating a merit-based selection process for appointments. This reform is a response to criticisms of the AAT’s lack of enforceable standards and aims to professionalise the Tribunal’s membership.
- Expanded termination powers – unlike the AAT, the ART will have the authority to enforce a code of conduct and performance standards, allowing for the termination of non-judicial members who fail to meet these criteria. This change is designed to uphold the integrity and accountability of the Tribunal.
- Re-establishment of the Administrative Review Council (ARC) – the ARC will be revived to oversee the administrative review system’s integrity, investigate systemic issues, and provide guidance on administrative law and decision-making. This body will also be responsible for education and training initiatives for Commonwealth officials, promoting best practices in administrative decision-making.
Transition and implementation
The ART is expected to commence operations in late 2024, allowing for a period of adjustment and preparation. Matters currently before the AAT will automatically transition to the ART upon its commencement. The establishment of the ART reflects a broader trend towards modernisation and reform in Australian administrative law. The ART aims to enhance public trust and confidence in the Tribunal system. As the ART begins its work, it will undoubtedly play a crucial role in shaping the future of administrative review in Australia.
Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you.
