13 October 2024
4 min read
#Government, #Dispute Resolution & Litigation
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The Administrative Review Tribunal (ART) commenced operation on Monday, 14 October 2024, replacing the Administrative Appeals Tribunal (AAT), which has been in place for 48 years. The new ART can review the same types of decisions as the AAT, however the changes are more than cosmetic.
The Royal Commission into the Robodebt Scheme Report established that an effective merits review tribunal is crucial for hearing appeals against government administrative decisions. This is vital for safeguarding individual rights, holding the government accountable and leads to better government decision-making in the future.
Features of the reform include implementing a transparent and merit-based appointments process for members, minimising delays by appointing additional staff, implementing procedural efficiencies and an updated case management system.
With the commencement of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) alongside the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Act 2024, a new system for the independent review of Commonwealth administrative decisions has been created, specifically:
Structurally, the ART Act establishes eight jurisdictional areas (section 196(1)), which are slightly different to the AAT’s nine areas, although the overall remit of the ART is unchanged. The eight areas are:
The most significant change is the establishment of the Guidance and Appeals Panel (GAP). The GAP consists of two or three members, one of which must be the President or Deputy President (with some qualifications contained in sections 39-42 of the ART Act, depending on the method of referral). The GAP will identify and escalate systemic issues raised in the ART and review decisions which may be affected by error.
The President can refer matters at first instance (where no review has occurred yet) to the GAP on their own initiative (section 122 of the ART Act). They must ensure that the issue is significant to administrative decision-making and that the referral is in the interests of justice.
Similarly, if a party requests a second merits review from the GAP (section 128), the President must be satisfied that the Tribunal decision raises an important issue in administrative decision-making or that there is a factual or legal error (section 128(2)).
The GAP is not limited by errors in the original ART decision; it can establish its own factual findings and introduce new evidence.
This is designed to promote consistency in ART decision making and increase confidence in its operation. However, not all decisions can be submitted to the GAP. For instance, applicants who have received a Tribunal decision related to migration or protection cannot refer those decisions to the GAP.
Decisions issued by the GAP are referred to as Tribunal guidance decisions (section 109 ART Act). The Tribunal must consider these guidance decisions if they involve similar facts or issues relevant to the current proceeding. An exception to this requirement applies when a member is a Judge (section 110(2)).
Another area of reform is selection, appointment and management of tribunal members. This is reformed through a transparent merit-based selection system, implementation of performance standards and increased powers for members to be disciplined.
Further, the ART Act allows for the President to authorise a Registrar to do certain things, such as make decisions with respect to an extension of time to apply for a review, conduct directions hearings, give orders to produce documents and statements of reasons, and even dismiss an application in specified circumstances.
For practitioners, the Administrative Review Tribunal Rules 2024 include information regarding timeframes, fees, decisions that cannot be appealed to the GAP and authorisations for registrars to exercise powers.
The Administrative Review Tribunal Regulations 2024 include provisions for review of decisions under Norfolk Island enactments and the operation of the Act when a decision-maker appeals to the GAP or on second review.
If you have already applied to the AAT for review of a decision, your application will automatically transfer to the new Tribunal on 14 October. From that date onwards, you can apply for a review to the new Tribunal – this includes if the decision was made before 14 October. Your notice of decision will tell you how long you have to apply, or you may be able to ask the Tribunal for an extension of time.
The review process at the ART is a key moment in a dispute, often representing the final chance for a merits review of a decision.
For advice on sound administrative decision-making or assistance in challenging administrative decisions, please get in touch with our government team below.
Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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