The Bills Digest at a glance

The purpose of the Administrative Review Tribunal Bill 2023 (ART Bill) is to establish the Administrative Review Tribunal (the Tribunal), which will replace the Administrative Appeals Tribunal (AAT). The ART Bill also details the Tribunal’s membership, structure, review procedures and other matters. It also re-establishes the Administrative Review Council. The Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023 (Consequential Bill 1) repeals the Administrative Appeals Tribunal Act 1975 (AAT Act) and makes consequential amendments to a number of Commonwealth Acts.

The two Bills were introduced into Parliament on 7 December 2023 and were referred to the House of Representatives Standing Committee on Social Policy and Legal Affairs for inquiry and report. Both the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights have raised concerns with elements of the Bills.

A third Bill, the Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Bill 2024 was introduced into Parliament on 7 February 2024.

All three Bills have been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 24 July 2024.

Background

The background section of the Bills Digest incudes a brief outline of the history of the AAT and the legislative framework under which it operates. The AAT and the Commonwealth administrative review system, initially lauded as an innovative model of tribunal reform, have over time faced an ever-increasing range of challenges. There have been numerous inquiries and reports documenting these challenges and recommending major reforms to address them.

Some of the problems and failures of the AAT have arisen as a result of the proliferation of specialist merits review tribunals and the subsequent attempts at amalgamating these separate bodies into a single unified tribunal. There have also been significant resourcing pressures with a corresponding dramatic rise in matters to be reviewed, resulting in enormous backlogs preventing timely and final resolution of matters. These problems have been most evident in migration and refugee matters. Perhaps one of the most critical problems has been connected to the lack of accountability in the AAT appointment processes and the perceived politicisation of the AAT. As one inquiry has argued, the merits review system in Australia is being failed by a tribunal which does not function effectively, efficiently or transparently.[1]

Key issues and provisions: the ART Bill

The Bills Digest Key issues and provisions section includes an overview of the various Parts of the ART Bill and highlights the more substantive changes. Comment and analysis provided by various stakeholders, including legal professional bodies, is included.

Many aspects of the principles underpinning administrative review under the AAT Act remain. The new Tribunal does not have a general review jurisdiction, rather other Acts and instruments determine if a decision is reviewable. Tribunal powers and procedures may be varied by other laws, in recognition of the need to accommodate different practice areas.

Part 4 is central to the ART Bill setting out a standardised hearing mechanism for the Tribunal. While many of the provisions are equivalent to the AAT Act, there are also substantive changes aimed at providing a balance between fairness to applicants and the avoidance of rigid legal processes. There is more flexibility in hearings; decision makers can elect not to be parties in certain circumstances; applicants have the right to be represented, and the Tribunal may appoint litigation guardians and interpreters where needed. The provisions include uniform notification requirements and standardised time limits. The Tribunal is required to provide reasons for decisions and there is greater scope for publishing decisions.

Another significant feature is the facility to constitute a guidance and appeals panel within the Tribunal (Part 5). Referral of decisions for review by the panel would only be permitted at the discretion of the President in cases which raise an issue of significance to administrative decision‑making or where the decision may contain an error of fact or law. Tribunal members would be required to follow guidance decisions from the panel. The new panel is intended to foster greater consistency in decision-making across the Tribunal and reduce the need for judicial review in individual cases.

There are significant changes to the structure of the Tribunal aimed at improving flexibility and greater control of workflows. The rigid Divisions within the AAT are to be replaced by jurisdictional areas, led by either the President or a Non-Judicial Deputy President. The President (rather than the Minister) would assign members to jurisdictional areas, taking into account the skills and qualifications needed in a particular area.  

The Tribunal’s powers in relation to the review of intelligence and security decisions are consolidated into Part 6 and will incorporate relevant provisions in other legislation which currently set out procedures for dealing with review in these matters. The new provisions are broadly equivalent to the existing ones and continue to exclude or modify some of the standardised rules and procedures for Tribunal review. Significantly, the ability to constitute a guidance and appeals panel (Part 5) would not be available for intelligence and security matters. The Law Council has suggested that it would be beneficial for the Independent National Security Legislation Monitor to review whether Part 6 of the ART Bill and related provisions are likely to operate fairly and appropriately in practice.

Appointments to the Tribunal

Part 8 sets out new and radically different procedures for appointing members to the Tribunal and is arguably the area of most significant reform in the Bill. Part 8 provides for a transparent merit‑based appointment process that requires applicants to have relevant knowledge, skills and experience. Positions must be advertised, and selection panels may be appointed to adjudicate the suitability of applicants based on record and performance at an interview. These changes are profoundly important. As Professor Mary Crock has noted ‘the most likely marker of success in the new tribunal will be the quality of the individuals appointed to adjudicate actual cases’.

In addition to new appointment procedures, Part 8 includes more stringent performance and disciplinary procedures. Members will be subject to a performance standard; a code of conduct; and stricter conflict of interest rules. Serious breaches of any of these would be possible grounds for termination.

The Consequential Bill 1: Review process for migration and protection visa applicants

The Consequential Bill 1 is large and complex. The Bills Digest focuses only on the amendments in Schedule 2, which deal with the review process for migration and protection visa applicants.

Schedule 2 makes significant amendments. It would abolish the highly contentious Immigration Assessment Authority in Part 7AA of the Migration Act 1958 and would bring all merits review into Part 5 of the Migration Act under a simplified procedural code. Most of the common procedures set out in Part 4 of the ART Bill would apply in migration cases – including provisions relating to the right to be represented.

However, Schedule 2 does not completely abolish the separate procedural codes that applied for migration and refugee matters under AAT review. For example, separate codes will continue to provide stricter notification and time limits on applications for review. Also, migration applicants are not given a right to seek the constitution of an appeals and guidance panel (although the President has discretion to convene such a panel in appropriate instances).

Professional legal commentators have argued against the retention of these separate or bespoke procedures on the ground that a more punitive and restrictive code for migration applicants is unfair and undermines the ability of the Tribunal to deliver effective and efficient justice for applicants.

Purpose of the Bills

The purpose of the Administrative Review Tribunal Bill 2023 (the ART Bill) is to establish a new federal administrative review body to be called the Administrative Review Tribunal (the Tribunal). The ART Bill provides for the appointment of members to the Tribunal and the powers and procedures of the Tribunal. It would also re‑establish the Administrative Review Council.

The purpose of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023 (the Consequential Bill 1) is to repeal the Administrative Appeals Tribunal Act 1975 (the AAT Act) and make consequential amendments to a number of Commonwealth Acts. It also provides for the transition of the Administrative Appeals Tribunal (AAT) operations, caseload and staff to the Tribunal.

The purpose of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Bill 2024 (the Consequential Bill 2) is to support the above two Bills, by making consequential amendments to the remaining Commonwealth Acts that interact with the AAT Act. The Consequential Bill 2 would also make amendments to remove the administrative review pathway for preventative detention order decisions under section 105.51 of the Criminal Code Act 1995 and would extend external merits review to decisions to refuse to provide a person with a notice as evidence of their Australian citizenship.

Structure of the Bills

The ART Bill contains 11 Parts.

• Part 1 sets out preliminary matters including relevant definitions.
• Part 2 creates the Tribunal comprising a President, Deputy Presidents, senior members and general members.
• Part 3 relates to Tribunal review and the process of beginning a review.
• Part 4 deals with the proceedings and powers of the Tribunal.
• Part 5 establishes a guidance and appeals panel within the Tribunal.
• Part 6 sets out special Tribunal procedures and processes in intelligence and security matters.
• Part 7 makes provision for appeals on questions of law and referrals of questions of law to the Federal Court of Australia (FCOA).
• Part 8 deals with the membership and structure of the Tribunal and Tribunal staff.
• Part 9 re-establishes the Administrative Review Council and sets out its functions and powers.
• Part 10 deals with administrative decision‑making practice.
• Part 11 deals with miscellaneous matters including confidentiality, delegations and authorisations, and the power to make rules and regulations.

The Consequential Bill 1 has 17 Schedules:

• Schedule 1 contains amendments to a number of Acts in the Treasury portfolio.
• Schedule 2 contains amendments to a number of Acts in the Home Affairs portfolio.
• Schedule 3 contains amendments to a number of Acts in the Social Services portfolio.
• Schedule 4 contains amendments to a number of Acts relevant to reviews in the Security Division of the Tribunal.
• Schedules 5 to 14 contain minor amendments to a range of Acts in various portfolios.
• Schedule 15 contains amendments to a number of Acts in the Veterans Affairs portfolio.
• Schedule 16 contains provisions relating to the transition from the AAT to the Tribunal.
• Schedule 17 repeals the AAT Act.

Due to the size and complexity of the Consequential Bill 1, the Key issues and provisions section of the Bills Digest focuses only on Schedule 2 and the amendments to the Migration Act 1958. The Explanatory Memorandum provides details of the other Schedules.

The Consequential Bill 2 has 16 Schedules:

• Schedules1-9 and 11-14 contain minor amendments to a range of Acts in various portfolios.
• Schedule 10 would confer jurisdiction on the Tribunal to review decisions under section 37 of the Australian Citizenship Act 2007. These decisions concern whether to provide a person with a notice as evidence of Australian citizenship. Currently, those types of decisions are only subject to internal merits review by the Department of Home Affairs, and judicial review by the courts.
• Schedule 15 contains amendments to a number of Commonwealth Acts which are subject to requirements for the Commonwealth to consult with, or seek the agreement of, the states and territories before introducing amendments into Parliament. The Schedule also amends the Criminal Code Act to remove the administrative review pathway for preventative detention decisions.
• Schedule 16 makes consequential amendments to the Administrative Review Tribunal Act2024 when that Act commences. In particular, the schedule repeals references to preventative detention orders in the ART Bill, consequential to the amendments in Schedule 15, thus leaving decisions with respect to the validity of preventative detention order decisions, entirely within the purview of the courts.

For further detail on the Consequential Bill 2, the reader is referred to the Bill’s Explanatory Memorandum.

Background

Administrative review

Administrative review (also called merits review) has been described as:

… the process by which a person or body other than the primary decision‑maker reconsiders the facts, law and policy aspects of the original decision and determines the correct and preferable decision. The process of review may be described as 'stepping into the shoes' of the primary decision-maker. If the reviewer considers that the decision was not the correct and preferable decision, the reviewer may remake the decision using the same legislative framework as the original decision-maker.[2]

The foundations of the modern Australian merit review system were laid in the mid-1970s when a comprehensive system of federal administrative law was established. In 1975 the Commonwealth passed legislation[3] to establish the AAT, a general administrative tribunal with jurisdiction to review Commonwealth administrative decisions on their merits, and the power to substitute its preferred decision for that of the original decision-maker. The AAT commenced operation on 1 July 1976. The jurisdiction of the AAT has been significant in giving individuals affected by decisions the right to challenge the correctness of a decision on factual grounds, not merely to challenge its legality. In a broader context the AAT has also been seen as being a 'form of executive accountability that enhances openness, good government and public trust in public administration'.[4]

The AAT and its legislative framework

In order to understand the purpose of the Bills it is useful to outline the legislative framework under which the existing AAT operates.

The AAT is the Commonwealth’s largest tribunal, both in terms of membership and scope. The Australian Administrative Law Policy Guide states that ‘[t]he AAT should be the merits review tribunal for all Commonwealth administrative decisions unless specific policy considerations support review conducted by an alternative body’.[5]

The AAT Act and Administrative Appeals Tribunal Regulation 2015 (AAT Regulation) set out in detail the matters relating to the membership, power and jurisdiction of the AAT.

The AAT does not have a general review jurisdiction – it can only review decisions if an Act, regulation or other legislative instrument says that the AAT can review a certain decision. [6] Currently, the AAT reviews decisions under more than 400 Commonwealth Acts and legislative instruments.[7]

The AAT’s powers and procedures can be varied by other laws which allow the AAT to review certain types of decisions. For example, the ordinary procedures set out in the AAT Act and Regulation are amended, and in some cases do not apply, for migration, social security and child support matters.

AAT members consists of the President (who must be a Federal Court judge) and members who may be appointed as:

• Deputy Presidents (some Deputy Presidents may be assigned as the head of one or more divisions)
• Senior Members
• Members.

Under the AAT Act Members of the AAT were appointed by the Governor-General with the advice of the Cabinet, which in turn generally chose to appoint persons identified by the Attorney‑General.[8] A person could be appointed to the AAT if they had been enrolled as a legal practitioner for at least five years, or otherwise, in the opinion of the Governor-General, had ‘special knowledge or skills relevant to the duties’ they would perform in the AAT.[9]

The Registrar of the AAT is a statutory office appointed by the Governor-General.

The AAT manages its workload through 9 divisions, covering areas of Commonwealth government decision-making including migration, the National Disability Insurance Scheme (NDIS), freedom of information, and taxation. [10]

Challenges facing the AAT

The AAT and the Commonwealth administrative review system, initially lauded as an innovative model of tribunal reform,[11] has over time faced an ever-increasing range of challenges. There have been numerous inquiries and reports documenting these challenges and recommending major reforms to address them.

Some of the problems and failures of the AAT have arisen as a result of the proliferation of specialist merits review tribunals and the subsequent attempts at amalgamating these separate bodies into a single unified tribunal. There have also been significant resourcing pressures with a corresponding dramatic rise in matters to be reviewed, resulting in enormous backlogs preventing timely and final resolution of matters. Perhaps one of the most critical problems has been connected to the lack of accountability in the AAT appointment processes and the perceived politicisation of the Tribunal. As one inquiry has argued, the merits review system in Australia is being failed by a Tribunal which does not function effectively, efficiently or transparently.[12]

The following section looks at these problems in more detail and includes references to two of the more recent inquiries:

• Senate Legal and Constitutional Affairs References Committee, The Performance and Integrity of Australia's Administrative Review System, Canberra, March 2022 (the Senate Committee Report).
• AGD, ‘Report on the statutory review of the Tribunals Amalgamation Act 2015’, AGD website, 2019 (the Callinan Review).

The proliferation of federal merits review tribunals

It was originally envisaged that the AAT would be the main tribunal for Commonwealth administrative review and that specialist tribunals would be created by exception.[13] Notwithstanding this intention, between 1975 and the early 1990s, a number of new tribunals were created, particularly to review decisions in high volume areas of law such as migration, social security and veterans’ benefits. The Immigration Review Tribunal (which became the Migration Review Tribunal (MRT)), the Refugee Review Tribunal (RRT) and the Social Security Appeals Tribunal (SSAT) were among the tribunals established in the 1980s and 1990s and were characterised by adopting a more inquisitorial style than the AAT.[14]

The 1990s saw an attempt to move towards amalgamation and away from the separate subject specific tribunals. A 1995 report Better Decisions: Review of Commonwealth Merits Review Tribunals, recommended consolidating five main Commonwealth review bodies (the AAT, the Veterans’ Review Board, the SSAT, the IRT and the RRT) into a new Administrative Review Tribunal. Legislation to implement this recommendation and other reforms (the Administrative Review Tribunal Bill 2000) was defeated in 2001.[15]

A degree of amalgamation of the various tribunals was achieved in 2015 when the Parliament passed legislation to merge the SSAT, the MRT and the RRT into the AAT.[16] In general, the procedures that applied to the conduct of reviews in the AAT, MRT, RRT and SSAT were preserved in the amalgamated AAT, embedded in the legislation that governs the operations of the AAT’s Divisions.[17]

Three years following the amalgamation, a statutory review of the Tribunals Amalgamation Act 2015 was conducted by former High Court Justice Ian Callinan (the Callinan Review ). In responding to the Statutory Review’s terms of reference, the Callinan Review drew the following conclusions:

• the objectives of the Tribunals Amalgamation Act have not yet been achieved
• the AAT is not operating as a truly amalgamated body; some separation is dictated by differing legislated regimes. To some extent separation is appropriate
• opinions about decisions often depend upon the philosophy or perspectives of people considering them. There is reason to believe that the AAT is genuinely attempting to promote public trust and confidence, however:
  • the AAT is, for various reasons, not always meeting community expectations, and
  • in some respects, differing legislation, practice directions, ministerial directions, guidelines and policies of the AAT do not interact efficiently or effectively
• workloads and backlogs in the AAT are preventing timely and final resolution of matters
• the AAT’s operations and efficiency can be improved through further legislative amendments or non-legislative changes
• funding arrangements for the operations of the AAT are neither appropriate nor consistent across Divisions. (pages 26–27)

Justice Callinan, in his report, further notes in relation to the amalgamation that:

No one could doubt the good intentions that moved the Parliament to enact the [Tribunals Amalgamation Act]. Perhaps what may, however, have been underestimated, are the increasing volume of matters to be reviewed and the divergences in practices, legislative or otherwise, of the different Tribunals and Divisions which came to constitute the amalgamated AAT.

[…]

As desirable as complete harmonisation may theoretically be, it is difficult and probably undesirable to impose upon the respective Divisions, identical, or even very similar practices and procedures. (page 162)

Other stakeholders have also pointed to the problems of amalgamation. The AAT, in a submission to the Senate Committee inquiry has suggested that the amalgamation process of 2015 has resulted in some procedural differences between Divisions, as determined by legislation— limiting the ability of the AAT to ‘manage cases in the most efficient, effective and proportionate manner’. In relation to the Migration and Refugee Division (MRD), the AAT pointed out that members were limited in how they could conduct reviews, due to some of the codified procedural requirements set out in the Migration Act 1958. The AAT concluded that:

The lack of powers under that Act for members to conduct directions hearings, to give enforceable directions, and to dismiss applications for failure to comply with a direction … hampers the ability to efficiently manage cases in that Division.[18]

Resourcing of the AAT and caseload

Annual reports documenting the work of the AAT in recent years, show a tribunal beset by delays with dramatic increases in workload and an extraordinarily large backlog of applications. These problems have been most evident in the MRD.

In 2022–23 there were 19,050 migration and refugee matters received which accounted for 46% of all applications received by the AAT. At the end of the financial year there were 54,575 outstanding matters in the MRD Division (accounting for 83% of all outstanding matters),[19] compared with 16,764 at the end of 2015-16[20] – a 325 per cent increase over seven years.

These figures were confirmed by statistics provided by the AAT in a submission to the Senate Committee inquiry which concluded that in 2020–2021 the percentage of cases finalised within 12 months was 20 per cent (which was down from 66 per cent in 2016-17).[21]

Numerous professional bodies and stakeholders have raised concerns about these figures. For example, the Law Council has commented on the need to increase the number and timeliness of decisions as well as to increase the number of appropriately qualified and experienced members in the MRD and other Divisions. Doing so would help address the backlog and reduce the likelihood of delays ‘associated with cases being remitted to the AAT by the federal courts as a result of jurisdictional or other legal error’.[22]

Appointments: the need for an open competitive process

Perhaps the most significant issue impacting the AAT and its credibility has been the lack of transparency in recruitment and the perceived politicisation of member appointments.

The prevalence of partisan appointments to the AAT and other tribunals had been a long standing complaint dating back to the 1990s.[23] However, public complaints about partisan appointments increased greatly during the Morisson Government’s time in office, particularly when large numbers of people with connections to the Coalition were appointed to the AAT just before the calling of elections.[24]

This issue was a key focus of the Senate Committee inquiry. Complaints were voiced by Senate inquiry participants who submitted that the appointment of AAT members—particularly in recent years—has been unduly influenced, or perceived to be unduly influenced, by personal connections and political affiliations. They observed that this trend (or at the very least the perception of this trend) undermined the promotion of public trust and confidence in the decision-making of the AAT.[25]

The Law Council argued that the current method of appointment 'affords the Attorney-General significant discretion in the appointment process'. It drew attention to public comments it had made previously suggesting that the appointment process was 'secretive with the potential to undermine public confidence', and that 'any lack of transparency impacts on the reputations of all members of the AAT, which is unfair'.[26]

Some submitters pointed out that the 'special knowledge or skills' criterion could be abused through ministerial discretion to make appointments based on political expediency, rather than on merit as the AAT Act intended. They also highlighted the minimal transparency surrounding the Attorney-General's decision-making process when recommending candidates to Cabinet, identifying that this was particularly problematic when it came to additional candidates who had not been recommended by the AAT President.[27]

The Grattan Institute argued that based on its analysis, the number of AAT members with political affiliations had increased in recent years. In the 12 years before 2015–16, 4 per cent of appointees had political affiliations, compared to 29 per cent in the five subsequent years.[28]

The Grattan Institute contended that the inappropriate use of ministerial discretion for appointments carried several risks, namely:

• that appointees will lack the necessary skills and experience to effectively carry out their responsibilities, given they have not been tested through a merits-based process or actively compared to other candidates and
• that appointees with political affiliations may be less willing to make a decision that might embarrass or upset the government that appointed them, thereby undermining the actual and perceived independence of the AAT.[29]

The New South Wales Bar Association took the view that AAT members should have a sufficient level of competence to make the 'correct or preferable administrative decision'. It described the negative impacts that cascaded from members lacking relevant expertise:

A lack of experience, qualification or skills results in a poor quality of administrative decision making. Poorer quality decision-making can result in the needless expenditure of public money in judicial review proceedings. More importantly, it results in injustice in individual cases, whether that is because the party must then expend further funds and time seeking judicial review, or because the decision made is not the 'correct or preferable' one.[30]

This evidence from inquiry participants reinforced the Committee’s view that the member selection process was not open, rigorous or fair, with an ever-present risk of political patronage being the basis of appointments. The Committee considered that ‘the process as it currently stands is consistently undermining the public credibility of the Tribunal’.[31] The Committee therefore recommended that a transparent, independent and merit-based process be established for the appointment of AAT members.[32]

Administrative Review Council

The original system of administrative law that was created in the 1970s also included an Administrative Review Council (Council). The Council was established in 1976 under the AAT Act, its task being to ‘monitor and provide advice to the Government in relation to Commonwealth administrative review’.[33]

During the period of its operation, the Council produced a number of reports including best practice guides on, among other things, 'lawfulness, natural justice and accountability', and reports on topics as broad as 'automated assistance in administrative decision making, administrative accountability, and information-gathering powers of government agencies'.[34]

The Council was effectively abolished as part of the 2015-16 Budget and the Abbott Government’s Smaller Government Reform Agenda.[35] Part V of the AAT Act that formally establishes the Administrative Review Council was not formally repealed. Instead, its effective abolition was achieved by not renewing the appointments of members after their terms expired and by ceasing funding of the Council.

Since its abolition there have been numerous calls that the Council be re-established.

A number of inquiries, including the Royal Commission into the Robodebt Scheme, the Senate Committee inquiry and some stakeholders have drawn a connection between the abolition of the Council and the creation, expansion and continuation of the unlawful Robodebt scheme from mid‑2015 until late 2019. In a submission to the Senate Committee inquiry, the Melbourne Law School, made this connection noting that Robodebt occurred during the period in which the Council was functionally obsolete. The factors leading to it were matters squarely within the remit of the Council’s oversight functions. The Melbourne Law School submitted that:

[…] it is highly likely that a properly functioning ARC [Council] would have kept close watch on the relevant debt recovery processes and would very likely have undertaken inquiries and issued strong letters of advice with respect to it.[36]

The Senate Committee report recommended that the Council should be reinstated, noting that there was near universal support in evidence to the inquiry for urgent re-funding of the Council.[37]

Administrative review reform: the Albanese Government 

On 16 December 2022, the Attorney-General, Mark Dreyfus, announced that the Government would abolish the AAT and replace it with new administrative review body that is ‘user-focused, efficient, accessible, independent and fair’. The Attorney-General in his press release pointed to the recent problems of the AAT stating:

The AAT’s public standing has been irreversibly damaged as a result of the actions of the former government over the last nine years. By appointing as many as 85 former Liberal MPs, failed Liberal candidates, former Liberal staffers and other close Liberal associates without any merit-based selection process – including some individuals with no relevant experience or expertise – the former government fatally compromised the AAT, undermined its independence and eroded the quality and efficiency of its decision-making.

The Albanese Government inherited an AAT that is not on a sustainable financial footing, that is beset by delays and an extraordinarily large and growing backlog of applications and that is operating multiple and ageing electronic case management systems – a legacy of the former government’s mismanagement of the amalgamation of the AAT with the Social Security Appeals Tribunal and the Migration Review Tribunal and Refugee Review Tribunal.

The Attorney-General gave assurances that the transition from the old review body to the new one would be as smooth as possible indicating:

• matters currently before the AAT will be unaffected. They will continue to be heard and will transition to the new review body once it is established.
• current staff of the AAT will transition to the new body as part of the reform
• existing members of the AAT are to continue and will be invited to apply for positions on the new body in accordance with the new merit-based appointment.

Since the Attorney-General’s announcement there have been further developments working toward this reform.

A number of new appointments have been made. On 9 June 2023, Justice Emilios Kyrou commenced as President of the AAT and will become the inaugural President of the Tribunal, once established. In September and October 2023, the Government appointed 93 additional members to the AAT. Funded from a Government commitment of $63.4 million over 2 years, these appointments were made to address the backlog of cases. On 14 December 2023, the Government appointed a further 22 members for a term of 2 years. This included ‘the appointment of 10 new members to boost the capacity of the AAT to deal with its significant protection visa and other migration-related caseloads’. These appointments have been made through a new ‘transparent and merit-based selection process’ conducted in accordance with the new AAT Appointment Guidelines.[38]

The Attorney-General’s Department has also conducted public consultation on reform to the administrative review system. An Issues Paper was published in April 2023 seeking views on the development of a new federal administrative review body. AGD received 287 short survey responses and 120 submissions in response to the Issues Paper.[39] Where permitted, submissions are available on the AGD website.

As part of this consultation an Expert Advisory Group led by former High Court Justice Patrick Keane was also established to provide guidance to the Government.[40]

Following this period of consultation, the ART Bill and the Consequential Bill 1 were introduced into Parliament on 7 December 2023. A third Bill, the Consequential Bill 2 was introduced into Parliament on 7 February 2024. AGD, Administrative Review Reform Issues Paper, Feedback updated 7 Aug 2023, AGD website.

In terms of implementation of recommendations from the recent inquiries, the Government states that the Bills implement:

• all 3 recommendations from the Senate Committee report
• 4 recommendations from the Royal Commission into the Robodebt Scheme
• the Government response to 2 recommendations from the Rapid Review into the Exploitation of Australia's Visa System.[41]

Committee consideration

House of Representatives Standing Committee on Social Policy and Legal Affairs

The Committee adopted an inquiry into the ART Bill and the Consequential Bill 1 on 14 December 2023, following a referral from the Attorney General (the House of Representatives Committee inquiry). Details of the inquiry are at the Committee inquiry webpage.

The Committee, in its report made 2 recommendations:

• Recommendation 1:
  • That the House of Representatives pass the ART Bill without amendment. The Committee also encourages the Senate Legal and Constitutional Affairs Legislation Committee to give further consideration to the matters raised by submitters and in this report as part of its inquiry.

• Recommendation 2:
  • That the House of Representatives pass the Consequential Bill 1 without amendment. The Committee also acknowledged that the proposed new administrative arrangements for migration and protection matters do not go as far as many would like. However, the Committee is of the view that the Bill meets the intended policy objectives of streamlining the administrative appeals process, while maintaining the current principles of administrative review.

Coalition Members submitted Additional Comments stating that the short committee process has not allowed Parliament to properly scrutinise the significant changes to Australia's system of administrative appeals. Members are therefore pleased that the Senate Committee inquiry with a reporting date of 24 July 2024 will examine the Bill in greater detail.

Independent MP Kate Chaney submitted Additional Comments stating that her support for Recommendation 1 (that the ART Bill be passed) is contingent upon the Bill being amended in terms of her Additional Comments, including the appointment process and related integrity being strengthened.

Senate Legal and Constitutional Affairs Legislation Committee

The three Bills have been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 24 July 2024. Details of the inquiry are at the inquiry webpage.

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) has a number of concerns with both the ART Bill and the Consequential Bill 1.[42] In relation to the ART Bill the Committee draws attention to:

• procedural fairness concerns with the Tribunal’s public interest certificate and intervention provisions (Division 7 of Part 4)
• procedural fairness concerns in the intelligence and security jurisdiction (Part 6)
• a broad discretionary power of the Attorney-General to determine legal or financial assistance (clause 294).

In relation to the Consequential Bill 1 the provisions the Committee draws attention to include:

• procedural fairness concerns in relation to proposed paragraph 336P(2)(l) of the Migration Act (Item 120 of Schedule 2) which prevents a person who applies to the Tribunal for review of a reviewable migration and protection decision from making an application to the Attorney‑General for legal or financial assistance
• procedural fairness concerns regarding the continuing implementation of codes of procedure for the making of migration and protection decisions (proposed subsection 357A(2C) of the Migration Act, Schedule 2, item 151)
• procedural fairness concerns in relation to restricting disclosure of information relevant to migration and protection proceedings (proposed subsection 359A(4) Migration Act, Schedule 2, item 161)
• limits on parliamentary scrutiny by restricting the provision of protected documents or protected information to parliament (proposed 378 of the Migration Act, Schedule 2, item 188)

Further detail regarding some of these scrutiny concerns is provided in the Key issues and provisions section below.

Policy position of non-government parties/independents

A report in the Sunday Age on 11 February 2024 indicated that some of the crossbench and the Australian Greens have concerns regarding the potential politicisation of the new Tribunal under the ART Bill provisions. These concerns were first raised by submitters to the House of Representatives Committee inquiry into the ART Bill, the Law Council in particular, questioning why the ART Bill stopped short of requiring the Minister to establish an assessment panel for the purpose of merit-based assessment of candidates.[43]

The Sunday Age reported that Independent Senator David Pocock said that it was imperative now that ‘we don’t recreate the problems of the past with how the new tribunal operates’ and that he would not support the proposed legislation in its current form.

In a similar report in the Sydney Morning Herald on the same day, Independent Member Sophie Scamps was reported as saying that abolishing the AAT was a big move and to retain the loophole in the new body was ‘crazy’ and that the Bill ‘in its current form retains the fatal flaw that underpinned the reason why the AAT was abolished in the first place’.

The Australian Greens justice spokesman David Shoebridge is reported as saying that it was ‘utterly baffling that Labor’s model fails on integrity when this was meant to be the key reason for reform in the first place’.

At the time of writing the views of other non-government parties and independents are not known.

Position of major interest groups

At the time of writing, the House of Representatives Committee inquiry has received 31 submissions on the Bills. Submissions generally support the purpose of the Bills and many of the amendments, although some question aspects of the Bills and recommend changes.

The views of legal professional bodies and legal academics are referred to in the Key issues and provisions section of the Bills Digests.

Further information about stakeholder views prior to introduction of the Bills can be found in the AGD Issues Paper and on the AGD website.

Financial implications

The 2023–24 Mid-Year Economic and Fiscal Outlook states that the Government will provide:

• $5.3 million over four years from 2023–24 (and $1.8 million per year ongoing) to support the re-established Administrative Review Council to monitor and enquire into the Commonwealth administrative review system
• $21.8 million over two years from 2023–24 for the Administrative Appeals Tribunal to support transition to the new Administrative Review Tribunal
• $18.5 million over four years from 2023–24 (including $5.2 million in capital funding) for the Administrative Appeals Tribunal to continue to develop and expand the new case management system for use by the Administrative Review Tribunal.[44]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bills’ compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bills are compatible.[45]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights (the Human Rights Committee) has raised the following concerns with the ART Bill and the Consequential Bill 1.[46]

Litigation guardians

The Human Rights Committee has concerns regarding clause 67 of the ART Bill which provides for the appointment of litigation guardians. The Committee’s view is considered below at pages 23–24 of the Bills Digest.

Restricting disclosure of information relevant to proceedings

The Human Rights Committee notes, there are several provisions in both the ART Bill and the Consequential Bill that effectively seek to restrict the disclosure of information or evidence from the applicant and their representative and raise human rights concerns.[47] The provisions in the ART Bill that the Committee draws attention to include:

• clauses 70 and 71: The Tribunal may prohibit or restrict the publication or other disclosure of information or evidence which tends to reveal the identity or provide information concerning a party or witness. In considering whether to make such an order, the Tribunal must have regard to specified matters set out in clause 71
• clause 157: provides that if an order is being considered in relation to a proceeding in the Intelligence and Security jurisdictional area, the Tribunal must have regard to the necessity of avoiding the disclosure of national security information and, in relation to a review proceeding, give particular weight to any submission made by or on behalf of the agency head. (This is in addition to the considerations required in clauses 70 and 71)
• clause 91: the Tribunal is conferred with minimal flexibility with respect to disclosing information subject to a non-disclosure certificate issued by the Attorney-General of the Commonwealth or a state or territory
• clauses 158, 159, 161 and 162: in proceedings in the Intelligence and Security jurisdictional area, disclosure of information to the applicant and their representative may be restricted where a non-disclosure certificate applies.
• clauses 143 and 144: the Tribunal must do all things necessary to ensure that information given to the Tribunal that was used to make a security clearance decision or a security clearance suitability assessment is not disclosed to the applicant or any other person other than the Director-General of Security or their representative or specified Tribunal staff members
• clause 156: in the Intelligence and Security jurisdictional area the Tribunal also has a duty to ensure, so far as possible, that security and law enforcement information is not communicated or made available to a person if it would prejudice the security, defence or international relations of the Commonwealth or law enforcement interests
• subclause 167(5) and (8): in the Intelligence and Security jurisdictional area the Tribunal may also direct that the whole or a particular part of its findings, so far as they relate to a matter that has not been disclosed to the applicant, not be given to the applicant

The provisions in the Consequential Bill 1 of human rights concern include:

• items 160 and 161 in Schedule 2: relating to the disclosure of information with respect to decisions made under the Migration Act.

The Human Rights Committee notes that those provisions in the ART Bill and the Consequential Bill 1 that seek to restrict the disclosure of information or evidence engage and limit the right to a fair hearing. With respect to migration decisions relating to the expulsion or deportation of non‑citizens or foreign nationals who are lawfully in Australia, the Committee notes that the provisions would appear to engage and limit the prohibition against expulsion of aliens without due process. With respect to this right, the Committee states that while the due process guarantees in article 13 of the International Covenant on Civil and Political Rights may be departed from when compelling reasons of national security so require, the current measures go further and allow restrictions based on Australia’s relations with other countries or the public interest. The Committee further notes that:

[…] the UN Human Rights Committee appears to have interpreted the exception of ‘compelling reasons of national security’ to be a reasonably high threshold which States parties must meet before departing from their due process obligations. (page 37)

The Committee acknowledges that the right to a fair hearing and the prohibition against expulsion of aliens without due process may be subject to permissible limitations if they are shown to be reasonable, necessary, and proportionate. However, it is the Committee’s opinion that while the measures pursue the legitimate objectives of seeking to protect national security and the public interest:

[…] it is concerned that the proposed limitations may not be proportionate in all circumstances. The safeguards identified in the statement of compatibility do not appear to be sufficient, noting the Tribunal has minimal flexibility to disclose information subject to a non-disclosure certificate to the applicant and there appear to be less rights restrictive ways of achieving the stated objectives. Depending on the scope and nature of information withheld from the applicant and the consequent interference with their ability to effectively participate in proceedings, there appears to be a risk that the measures would not be proportionate in all circumstances and thus may impermissibly limit the right to a fair hearing and the prohibition against expulsion of aliens without due process. (pages 37–38)

The Human Rights Committee considers the proportionality of these measures may be assisted were the Bills amended to provide:

• the Tribunal with the discretion to disclose the relevant information (or a summary of it) to the extent that is necessary to ensure procedural fairness in circumstances where partial disclosure could be achieved without creating a real risk of damage to the public interest or national security, and
• a process by which a special advocate scheme[48] (that complies with human rights) or equivalent safeguard be created to allow the Tribunal to appoint someone in a particular case to represent the applicant's interests if it is determined that the relevant information cannot be disclosed to the applicant. (page 38)

Similar concerns regarding some of these provisions have also been raised by the Scrutiny of Bills Committee and other stakeholders. The Bills Digest refers to these concerns in the Key issues and provisions section below.

Termination of employment of AAT members

The Consequential Bill 1 provides that all current members of the AAT (apart from members appointed since 1 January 2023 and the President and Deputy Presidents who are judges) would need to apply for membership of the Tribunal and be appointed to the ART through a merit-based process. Those AAT members whose employment is terminated are to be financially compensated.[49]

The Human Rights Committee has concerns regarding those AAT members who would have their employment terminated and would not automatically transition to the new Tribunal. The Committee argues this appears to constitute executive interference with the independence of the judiciary which has implications for the right to a fair hearing. The Committee notes that the requirement of judicial independence demands freedom from political interference by the executive or legislature and is an absolute right that is not subject to any exception.[50] It also observes that the statement of compatibility with human rights in the Explanatory Memorandum does not address the engagement of the right to a fair hearing and so no assessment is provided as to its compatibility with this right.[51]

The Committee therefore concludes that:

[…] noting the position under international human rights law that members of the judiciary should only be dismissed on serious grounds of misconduct or incompetence, and in such cases, they should have access to judicial protection to contest their dismissal, the Committee considers there to be a risk that the measure may not be compatible with the notion of an independent tribunal. (page 42)

Key issues and provisions in the ART Bill

Other Acts that change the effect of provisions in the ART Bill

Clause 5 is central to the Bill. It provides that other Acts or instruments may modify or disapply provisions in the ART Bill. For example, the Act under which a reviewable decision is made may contain provisions that apply to review of the decision in addition to, or instead of provisions in this Bill (subclause 5(1), Note).

Some parts of the ART Bill cannot be changed by other Acts or instruments. These are:

• Part 2 (establishment of the Tribunal)
• Part 8 (members and staff of the Tribunal), or
• Part 9 (Administrative Review Council).[52]

Part 2: Establishment of the Tribunal

Clause 8 establishes the Tribunal and clause 9 sets out its objective. The objective of the Tribunal is to provide an independent mechanism of review that:

• is fair and just
• ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits
• is accessible and responsive to the diverse needs of parties to proceedings
• improves the transparency and quality of government decision making, and
• promotes public trust and confidence in the Tribunal.

The equivalent provision in the AAT Act (section 2A) is similar in intention and wording. Clause 9 of this Bill also adds the additional objectives of:

• being responsive to the diverse needs of parties to proceedings
• improving the transparency and quality of government decision making.

Part 3: Tribunal review

Part 3 of the ART Bill contains provisions dealing with the process of starting a review. Many of the provisions are broadly the same as those in the AAT Act. The Bills Digest is therefore selective and brief in the description of this Part. Further information is available in the Explanatory Memorandum.

Clause 12 sets out a core principle underpinning the ART Bill. It provides that a decision is a reviewable decision if an Act or a legislative instrument provides for an application to be made to the Tribunal for review of the decision. This means that other Acts and instruments – not this Bill – determine if a decision is reviewable.

Clauses 17-20 deal with who can apply and when to apply for review. Any person whose interests are affected by a reviewable decision has standing to apply to the Tribunal for review of that decision.[53] The time-frame for applying for review will be prescribed in Rules to be made under clause 295 and must be at least 28 days after the decision is made. However, the legislation under which a reviewable decision is made may specify a different application period.[54]The Tribunal may extend the application period if it considers that it is reasonable to do so.[55]

After an application for review is made, the Tribunal must give written notice of the application, to the decision-maker and any other person who is a party to the proceeding for review.[56]

The parties to a review are the applicant, the decision-maker, and any other person who applies to be a party and the Tribunal is satisfied that the person’s interests are affected and the Tribunal considers it appropriate.[57]

Clauses 23-28 set out the rules regarding decision-makers’ responsibilities to provide the Tribunal with a statement of reasons for the decision and copies of all other relevant documents.

Part 4: Proceedings of the Tribunal

Part 4 of the ART Bill sets out the process the Tribunal follows when an application for review is made. Many of these provisions are based on the AAT Act. This section therefore gives only a brief overview and highlights those provisions where there are more significant changes.

Applications

Clause 34 provides that an application may be made to the Tribunal in writing or in any other manner specified in the Practice Directions. The application must include the information specified in the Practice Directions made in accordance with clause 36. 

Practice Directions

Clause 36 gives the President authority to make practice directions for the Tribunal. It is the equivalent of section 18B in the AAT Act although considerably expanded. Practice directions must be in writing (subclause 36(2)) and are to be published (subclause 36(7)).

The effect of practice directions has not changed. If the Tribunal deals with a proceeding in a way that complies with the practice directions, the Tribunal is not required to take any other action in dealing with the proceeding.[58]

Constitution of the Tribunal for a proceedings

Clauses 37-48 deal with how the Tribunal is to be constituted for a proceeding. The President directs how the Tribunal is to be constituted (clause 37) and in general the Tribunal must be made up of a single member, two members or three members. Two or three members are generally only allowed in more complex matters, or where a member may have special expertise or where it is in the interests of justice (clause 39).

The Tribunal may be reconstituted by the President at any time before the start of a hearing (clause 43). The President may also reconstitute the Tribunal after a hearing commences in certain circumstances such as member unavailability or in the interests of speed and efficiency (clause 44). An additional reason for reconstitution of the Tribunal is where a member has a conflict of interest, or actual or apprehended bias in relation to the proceeding (clause 46). The Explanatory Memorandum notes this is a new provision which has been added:

to promote the objective of the Tribunal, including providing a method of review that is fair and just, and promoting public trust and confidence in the Tribunal. The absence of bias is a fundamental component of procedural fairness. (page 59)

Tribunal procedure

Clauses 49-58 deal with Tribunal procedures. In general terms, the principles underpinning the procedures remain the same as under the AAT Act:

• the Tribunal has discretion in how it runs a proceeding (subject to the Act and the rules) (clause 49)[59]
• the Tribunal must conduct each proceeding in a way that is accessible for the parties to the proceeding, taking into account the needs of the parties (clause 51)[60]
• The Tribunal is to act with as little formality and technicality as proper consideration of the matters before the Tribunal permits (clause 50)[61]
• the rules of evidence do not bind the Tribunal, and the Tribunal may inform itself on any matter in such manner as it considers appropriate (clause 52)[62]
• the Tribunal may determine the scope of the review (clause 53)[63]
• the Tribunal may exercise the powers of the decision-maker (clause 54)[64] and
• the Tribunal must ensure each party to a proceeding is given a reasonable opportunity to present their case[65] (subject to certain exceptions) (clause 55).

Parties and representation

Clauses 59 to 68 deal with parties and representation.

As is the case under the AAT Act, the Attorney-General may by written notice choose to become a party to a proceedings in the Tribunal and may also choose to withdraw from being a party (clause 59).[66]

Clause 60 is a new provision. It allows the decision-maker to elect to not participate in proceedings for a reviewable decision by giving a written notice (an election notice) to the Tribunal. This aims to promote efficiency and a more informal, less-adversarial Tribunal environment.[67] The right to not participate is limited to the extent that the Minister may make rules preventing a decision‑maker from issuing an election notice for specific kinds of proceedings (subclause60(2)).

A decision-maker who elects to not participate may be a non-participating party in proceedings (clause 61). A non-participating party may make submissions and may also be ordered by the Tribunal to give submissions, appear before the Tribunal or participate in the proceedings (clause 63).

The ART Bill, like the AAT Act provides that a party to a proceeding in the Tribunal may choose another person to represent them in the proceedings (subclause 66(1)).[68] A person appearing before the Tribunal may, with the permission of the Tribunal, also choose another person to represent them in the proceedings (subclause 66(2)).[69]

Clause 68 provides for the appointment of an interpreter for a party or a witness appearing before the Tribunal, either at the request of the person or on the Tribunal’s own initiative. The provision is new, clarifying what currently occurs administratively in the AAT.[70]

Litigation guardians: comment and recommendations from the Human Rights Committee

The ART Bill includes a new provision (clause 67) allowing the Tribunal to appoint a litigation guardian to represent a party to a proceeding. The Tribunal may appoint a person to be a litigation guardian for a party to a proceeding if the Tribunal considers that:

• the party does not understand the nature and possible consequences of the proceeding, or
• the party is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding, and
• the appointment is necessary, taking into account the availability and suitability of other measures that would allow the party to participate in the proceeding.

Where a litigation guardian has been appointed, the party may only participate in the proceeding through that litigation guardian (subclause 67(5)).

The litigation guardian must give effect to the party’s will and preferences, unless, to do so would pose a serious risk to the party’s personal and social well-being. If the party’s will and preferences cannot be ascertained, the guardian must act in a manner that promotes the personal and social wellbeing of the party (subclauses 67(6)-(8))

The Explanatory Memorandum, notes that this new provision ‘rectifies a current gap in the AAT Act, which does not provide for the appointment of a litigation guardian. It has been drafted with reference to the findings and recommendations of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.’[71]

The Human Rights Committee has raised concerns with clause 67. It notes that ‘by providing for the appointment of a litigation guardian for those considered to lack capacity, the measure engages the right to equal recognition before the law for people with disability and the right to equality and non-discrimination’. The Committee further notes ‘the clear position under international human rights law that substitute decision-making regimes are contrary to the right to equal recognition before the law and that states parties should move towards the abolition of such regimes and instead develop supported decision-making’.[72]

The Committee acknowledges the intended purpose of clause 67 is to enhance access to justice for people with disability and considers this to be an important objective. However, while the measure contains features of supported decision-making, the Committee argues that: 

[…] the measure ultimately remains a model of substitute decision-making as legal capacity would be denied on the basis of impaired decision-making ability; a guardian may be appointed without the party’s consent; the party would not be supported to participate in the proceeding once a litigation guardian is appointed; and the party’s will and preferences may be overridden in certain circumstances. As such, the committee considers that the measure does not appear to be compatible with the right to equal recognition before the law. As this right is considered a 'threshold right' under international human rights law, the committee notes that as the measure appears to violate this right, it is likely that it would also impermissibly limit the associated right to equality and non-discrimination. (page 25)

The Human Rights Committee considers the compatibility of this measure may be assisted were clause 67 of the Bill amended to set out a model of supported, rather than substitute, decision-making; and the recommendations of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, particularly Recommendations 6.4–6.12, implemented. (page 25)[73]

The Committee also recommends that the statement of compatibility with human rights in the Explanatory Memorandum be updated to include an assessment of the compatibility of the measure with the right to equal recognition before the law for people with disability. (page 25)

Tribunal powers

Clauses 69-90 (Division 6) of Part 4 deal with Tribunal powers. They include provisions relating to the conduct of a hearing, management of proceedings and dispute resolution processes. Amongst other things:

• hearings of a proceeding in the Tribunal must be in public subject to exceptions set out in the practice directions or where the Tribunal requires a private hearing (clause 69)[74]
• the Tribunal may restrict publication or disclosure of information tending to reveal the identity or provide information concerning a party or witness (clause 70)[75]
• the Tribunal may summon a person to appear before a proceeding to give evidence or produce a document (clause 74).[76]

The Tribunal may also:

• give directions regarding the procedure to be followed for a proceeding (clause 79)[77]
• hold directions hearings (clause 80)[78]
• remit the decision to the decision-maker for reconsideration at any time during the proceedings (clause 85)[79]
• direct that the proceedings or matter arising out of the proceedings be referred to a dispute resolution process (clause 87).[80]

These are not new Tribunal powers as the AAT Act currently includes broadly equivalent provisions.

Public interest certificates and interventions

Clauses 91-94 establish a public interest certificate regime to prevent the disclosure or publication of certain information in circumstances where the Attorney-General of the Commonwealth or state or territory certifies that it would be contrary to the public interest for that information to be disclosed – for example, if the information could prejudice the security, defence or international relations of Australia or would disclose the deliberations of Cabinet (subclauses 91(1) and (2)). 

Where a public interest certificate is given, a person is not excused from giving or disclosing the document or information to the Tribunal for the purpose of the proceeding (subclause 91(3)), but the Tribunal must ensure that the document or information is not disclosed or given to any person other than a member, the Principal Registrar or staff member in the course of their duties. Documents must be returned as soon as possible after the Tribunal has finished with them (subclause 91(4)). In certain limited circumstances the Tribunal may decide to make the document or information available to parties in the proceedings (subclause 91(6)).

Clause 92 empowers the Attorney-General to prevent a person from answering a question for public interest reasons.

There are equivalent provisions in the AAT Act.[81]

Comment: Scrutiny of Bills Committee report

The Scrutiny of Bills Committee raises a number of concerns with these provisions and argues that the Explanatory Memorandum does not provide ‘sufficient justification for the scope of their operation given the significant impact they may have on an individual’s procedural fairness right to have access to all information relevant to the proceedings’.[82]

The Committee requests that the Attorney-General ‘provide a comprehensive justification for the rigid approach adopted for public interest certificates’, including amongst other things:

• a consideration of whether fairness could appropriately be promoted by an approach which includes granting the Tribunal a more general discretion to consider the cogency of any public interest immunity claims
• whether the Bill could be amended to require the Minister to balance the extent of prejudice to the public interest with the unfairness to the individual prior to issuing a certificate under clause 91 or 92
• whether the Bill can be amended to include additional mechanisms to provide for procedural fairness or, at a minimum, ameliorate the denial of procedural fairness
• whether a more detailed explanation can be provided as to what other mechanisms have been considered to address the denial of procedural fairness and, if they are considered not appropriate to include in the Bill, why this is the case; and
• a consideration of the appropriateness of a special advocate scheme in this context. (page 6)

Tribunal decisions

In relation to a reviewable decision, clause 105 provides the Tribunal must make a decision:

• affirming
• varying, or
• setting aside the decision. When setting aside the decision the Tribunal must either:
  • make a substitute decision, or
  • remit the matter to the decision-maker for reconsideration in accordance with any orders or recommendations of the Tribunal.

The Tribunal may make a decision without a hearing in certain circumstances, including where all the parties consent and where it appears that the issues can be determined without the presence of the parties (clause 106).

Reasons for decision

Clauses111 and 112 set out the requirements for the Tribunal to provide reasons for affirming, varying or setting aside a reviewable decision under clause 105. Under subclause 111(2) the Tribunal must give to each party to a proceeding the following information in writing:

• the Tribunal’s decision,
• a statement of reasons for the decision,
• notice of any right to appeal the decision to the Tribunal’s guidance and appeals panel and
• notice of the parties’ appeal rights to the FCA.

The Tribunal is not required to provide this information if it is adopting a decision made by agreement of the parties (subclause 111(1)).

The Explanatory Memorandum, states this is a substantive change from the AAT Act, which allowed for written reasons to be provided on request in some circumstances. It argues the change is a response to stakeholder feedback about the need for parties to have time to carefully consider the reasons for decision in deciding whether or not to appeal. Written reasons will also assist parties to fully understand the decision, including to ensure that it is implemented consistently with the Tribunal’s intentions. (pages 101–102)

For most other Tribunal decisions, the Tribunal may choose to give reasons, either orally or in writing, but is only required to provide reasons where a party requests it (clause 112).

Clause 113 provides for the publication of Tribunal decisions. It stipulates that the Tribunal may publish its decisions and that certain decisions must be published. The following decisions and reasons for decision must be published:

• decisions made by the guidance and appeals panel
• decisions involving a significant conclusion of law, and
• decisions that have significant implications for Commonwealth policy or administration.

The Explanatory Memorandum notes that there is no equivalent provision in the AAT Act stating the publication requirement in clause 113:

… has been added to promote the Tribunal’s objective in clause 9 of improving the transparency and quality of government decision‑making. The language of the provision reflects Recommendation 20.4 of the Robodebt Royal Commission Report that the new federal administrative review tribunal should publish decisions which involve significant conclusions of law. (page 103)

Part 5: Guidance and appeals panel

Part 5 of the ART Bill would establish a guidance and appeals panel within the Tribunal. The panel would be able to review some decisions made by the decision-maker and re-review some decisions made by the Tribunal. The Panel is a new feature of the ART Bill with no equivalent body in the AAT.

The Explanatory Memorandum states that the guidance and appeals panel would provide a mechanism for escalating significant issues and addressing material errors in Tribunal decisions. It argues that this would:

promote consistent Tribunal decision‑making and rapid responses to emerging issues. Although the panel may only make a small proportion of the Tribunal’s decisions, the normative effect of its decisions on Tribunal members, internal reviewers and administrators would enhance decision‑making across the system. (page 6)

Clause 123 provides that a party to a Tribunal decision would be able to apply to the President to refer the decision to the guidance and appeals panel if the party considers that the Tribunal decision raises a significant issue in administrative decision‑making or could contain a material error.  

Exceptions in subclauses 123(4), (5) and (6) provide that an application to refer a decision to the guidance and appeals panel cannot be made in relation to:

• a decision of the guidance and appeals panel
• a decision made by a member who is a Judge (or multiple members, at least one of whom is a Judge)[83]
• a decision made by agreement between the parties, or
• any other decision prescribed by the rules or other legislation as ineligible for consideration by the guidance and appeals panel.[84]

If a person applies to refer a Tribunal decision to the guidance and appeals panel the President may refer the decision to the panel or refuse the application (clause 128). The President may refer the Tribunal decision to the guidance and appeals panel if satisfied that:

• the decision raises an issue of significance to administrative decision‑making; or
• the decision may contain an error of fact or law materially affecting the Tribunal decision.

In using this discretion to refer or not refer the Tribunal decision, the President must have regard to:

•  the circumstances of the parties to the proceeding; and
•  any other matters that the President considers relevant.

The Explanatory Memorandum argues that this discretion is important to ensure the threshold for referral is high. It states:

Issues that do not materially affect the Tribunal’s substantive decision, such as administrative decisions of the Tribunal, are more appropriately dealt with through judicial review as they would raise issues concerning the appropriate exercise or improper exercise of power. It also avoids resources being expended unnecessarily if, for example, the Tribunal has made a minor factual error that does not affect the substance of the decision. This promotes an efficient use of resources and is consistent with other tribunals, such as various state and territory civil and administrative tribunals, which provide a similar internal mechanism of review for errors of fact or law. (page 112)

Under clause 122 the President would also be able to refer a matter to the guidance and appeals panel on their own motion before the Tribunal makes a decision, if they consider that:

• the matter raises an issue of significance to administrative decision‑making, and
• it is appropriate in the interest of justice that the Tribunal be constituted by the panel for the proceeding.

Tribunal members would generally be required to treat these decisions as guidance decisions (clause 109). Clause 110 requires that, in a proceeding, members of the Tribunal have regard to guidance decisions that the Tribunal considers raise facts or issues similar to those raised by the proceeding.

The ART Bill would require that matters heard by the guidance and appeals panel are constituted by appropriately senior members.

For a matter of systemic significance, the Tribunal would have to be constituted by two or three members, including either the President or a Deputy President (clauses 40 and 41).

In matters regarding a possible error of law, the panel could be constituted by 1, 2 or 3 members, none of whom can have sat on the previous proceedings when making the original decision. In addition, the panel must have at least one member who is more senior that the most senior member making the original decision (clause 42).

In guidance and appeals panel matters, the decision‑maker must always participate in the proceedings (subclause 61(1)), the rationale being that it is important that decision-makers are represented in such proceedings to ensure they have the opportunity to make submissions and assist the Tribunal to reach its decision.[85]

Comment on Part 5

Mary Crock, Professor of Public Law, University of Sydney commends the proposed guidance and appeals panel provisions in the ART Bill describing them as ‘a definite gain’. In her submission to the House of Representative Committee inquiry Professor Crock states:

The benefit of the new guidance panel system is that it will address a problem that has plagued the AAT. Where different members come to different views on aspects of the law, there is no ability in the President to force members to follow a particular line. This means that the only recourse is to seek judicial review in individual cases which is neither fair nor efficient. ART members (but not judicial members) would be bound by decisions made by the Guidance panel, a measure that should foster greater consistency across the new tribunal. (page 3)

The guidance and appeals panel provisions do not apply in relation to review of intelligence and security decisions and only apply in limited circumstances in migration and refugee matters. Further discussion of these exclusions is provided below.

Part 6: Review of intelligence and security decisions

Part 6 sets out special procedures and processes that apply when the Tribunal’s powers in relation to a proceeding are exercised in relation to reviews of intelligence and security decisions. The provisions in Part 6 will replace equivalent provisions in the AAT Act. In addition, it will consolidate the way in which review of intelligence and security decisions are handled that are currently dealt with separately in the Australian Crime Commission Act 2002 (ACC Act), Archives Act 1983, Foreign Acquisitions and Takeovers Act 1975 (FATA), and Freedom of Information Act 1982 (FOI Act).[86]

Proceedings to be exercised in the Intelligence and Security Jurisdictional Area

Subclause 134(1) provides that the Tribunal’s powers in relation to a proceeding that relates to an intelligence and security decision[87] are to be exercised in the Intelligence and Security Jurisdictional Area. The Explanatory Memorandum explains that this subclause is equivalent to:

• paragraph 17B(2)(a) of the AAT Act in relation to security assessments, security clearance decisions or security clearance suitability assessments
• paragraph 17B(2)(b) of the AAT Act in relation to exempt security records
• subsection 105.51(6) of the Criminal Code Act 1995 (Criminal Code) in relation to preventative detention orders
• section 36J of the ACC Act in relation to adverse criminal intelligence assessments, and
• section 130E of the FATA in relation to decisions made under section 79A of that Act.[88]

In proceedings for review of a security and intelligence decision the decisions maker is not the original decision maker, but rather the head of the agency, or in the case of a foreign acquisitions and takeovers decision, the Treasurer (subclause 135(2)).

However, in the case of an exempt security record decision, and in relation to the following provisions, the ‘decision‑maker’ is the original repository of the power, rather than the agency head:

• clause 54—Tribunal can exercise powers of decision-maker
• clause 85—Tribunal may remit decision to decision-maker for reconsideration
• clause 105—Tribunal decision on review of reviewable decision
• clause 108—effect of Tribunal decision to vary or substitute a reviewable decision
• clause 163—security clearance decisions (subclause 135(3)).

As set out in the Explanatory Memorandum, exempt security record decisions are:

• decisions under the FOI Act that may be appealed to the Tribunal regarding access to documents which have been claimed to be exempt from disclosure on the basis that their release could cause damage to national security, defence or international relations (exemption under section 33 of the FOI Act)
• a decision of the National Archives of Australia regarding access to an exempt record under the Archives Act 1983 as prescribed in paragraph 33(1)(a) (disclosure could cause damage to national security, defence or international relations) or paragraph 33(1)(b) (information that was communicated by a foreign government), or a record of ASIO (p. 24).

Limits on seeking reasons for decisions from the decision-maker

Clause 136 specifies that the standard provisions in the ART Bill providing that applicants may seek reasons for decision from the decision maker do not apply in relation to an intelligence and security decision. The effect is that the applicant cannot seek a statement of reasons for the decision from the decision‑maker under the ART Bill.

This is equivalent to paragraph 28(1AAA)(a) of the AAT Act and ‘reflects the need to protect the sensitive nature of information that may form the basis of such decisions’.[89]  

Comment

The Scrutiny of Bills Committee notes that the default position with clause 136 is that no reasons for a decision are provided in relation to an intelligence and security decision. The Committee considers that procedural fairness would be better served if the provision was redrafted so that the default position required reasons for a decision to be provided. The Committee notes that:

 […]it is possible for Acts conferring jurisdiction on the Tribunal to modify this rule in relation to the review of particular decisions within the intelligence and security division and that public interest certificates may also be used to ensure sensitive information is withheld. This would be a preferable arrangement, from a scrutiny perspective, as it would place the onus on the Attorney-General to justify why an applicant’s right to hear the case against them should be limited. In this regard the committee also notes that the explanatory memorandum does not explain why this blanket approach is necessary beyond citing the ‘sensitive nature of information that may form the basis of such decisions’ (italics added in Scrutiny Digest).[90]

Limits on who can apply for certain reviews

Clause 138 states that the general provision in relation to who can apply to the Tribunal for review of a reviewable decision (clause 17) does not apply in most intelligence and security decisions.[91] The note to clause 138 explains that the persons who may apply for the review of these decisions are specified in the Acts under which the decisions are made.

The Explanatory Memorandum justifies this limitation stating the general provision is not applicable in most intelligence and security decisions ‘because of the nature of the decision and the information involved in proceedings. It is not appropriate, or necessary, for ‘any persons whose interests are affected by the decision’ to be able to apply for review of the decision’. (page 120)

This clause replaces subsections 27AA(1) and (4) of the AAT Act and replicates the effect of section 36F of the ACC Act and subsection 130A(2) of the FATA.

Additional persons to be notified of applications for review

Clause 139 deals with notification requirements when an application is made to the Tribunal for review of an intelligence and security decision. The Tribunal must give the relevant agency head written notice of the application who must then give notice to the ‘relevant body’.[92] These requirements are in addition to the notice requirements for parties and potential parties as set out in clause 21.

Rereview

Clause 140 provides for a second review of the Tribunal’s decision in relation intelligence and security decisions (other than an exempt security record decision)[93] where further evidence of material significance has become available, which was not available at the time of the initial review.

Clause 140 is broadly equivalent to subsections 27AA (2), (3), (5) and (6) of the AAT Act, subsections 36F(3), (4) and (5) of the ACC Act and subsections 130A(3) and (4) of the FATA.[94]

Re‑review on the basis of fresh evidence will not be extended to decisions where it does not currently apply—exempt security record decisions or preventative detention decisions.[95]

Constitution of Tribunal

The general rule regarding constitution of the Tribunal (clause 39) does not apply in relation to a proceeding for review of a decision in the Intelligence and Security jurisdictional area.[96] Rather subclause 145(2) stipulates that for the purposes of a proceeding for review of an intelligence and security decision, the Tribunal must be constituted by:

• the President or
• a Deputy President, or
• three members, at least one of whom is the President or a Deputy President.

The Explanatory Memorandum notes that this approach differs to the current arrangements in the Security Division and ‘provides greater flexibility to the Tribunal to manage its resources depending on the nature and complexity of the matter before it, while still ensuring a presidential member hears and presides over intelligence and security decisions’.[97]

Subclauses 145(4) and (5) place restrictions on former heads of national intelligence community agencies and on Treasurers, and Ministers formerly responsible for an NIC agency from being members of the Tribunal in proceedings in certain cases where there may be conflict of interest.

These restrictions are in addition to the general duty in clause 218 for members to disclose real or possible conflicts of interests.[98]

Parties to proceedings

The parties to proceedings for the review of intelligence and security decisions are the applicant and the head of the relevant agency involved in the decision (clause 147).[99] This clause is broadly equivalent to subsections 39A(2) and 39BA(2) of the AATAct and subsection 36K(2) of the ACCAct.

Tribunal proceedings to be held in private

The general rule that Tribunal proceedings should be held in public (clause 69) does not apply in relation to a proceeding that relates to an intelligence and security decision. Instead, clause 148 provides that such proceedings must be held in private. In addition, the Tribunal has a discretion to give directions as to who may be present at a hearing.[100] Clause 148 is not new and is equivalent to subsections 39A(5) and 39BA(7) of the AAT Act, subsection 36K(5) of the ACC Act and subsection 130G(5) of the FATA.

Clause 149 sets out the persons entitled to be present at hearings in relation to proceedings for review of intelligence and security decisions subject to any security certificate issued in accordance with clause 158.[101] The applicant and applicant’s representative are entitled to be present when the Tribunal hears submissions made, or evidence adduced by the agency head or a relevant body.

The agency head, their representative and the relevant body(s) are entitled to be present when the applicant, or their representative, are making submissions or adducing evidence.

Dispute resolution processes not available

Clause154 provides that dispute resolution processes (Subdivision C, Division 6 of new Part 4) are not available in relation to proceedings that relate to an intelligence and security decision, other than an exempt security record decision.

Guidance and appeal panel not available: comment

Clause 155 provides that Part 5 of the ART Bill (guidance and appeals panel) does not apply in relation to an intelligence and security decision. The Explanatory Memorandum justifies this new limitation arguing that proceedings in the Intelligence and Security jurisdictional area are already akin to guidance and appeals panel review. It states:

All proceedings for review of decisions in the Intelligence and Security jurisdictional area are constituted by (at least) a Deputy President – this is equivalent to the constitution requirement for an ‘issue of significance’ under clauses 40 and 41. Given the seniority of the constitution for the original matter in the Intelligence and Security jurisdictional area, constitution under clause 42 (material error) would be extremely limited.

Decisions of the Tribunal in these proceedings are highly unlikely to bear upon broader decision‑making of the Tribunal, given the unique and sensitive nature of the information involved. Decisions in proceedings for review of intelligence and security decisions may be considered and applied by members in subsequent proceedings in the Intelligence and Security jurisdictional area as a matter of course. (pages 129–130)

Professor Mary Crock submits these arguments are not convincing and says that for decisions involving security issues where initial ART review is available, the same potential exists for a defective review decision as in any other subject area of decision-making. She argues:

If appropriate protections can be put in place for the initial review, I cannot see why the same could not be done for a review by the guidance and appeals panel. My concern with this blanket carve-out or exclusion of the Guidance and Appeals panel is it could be possible to cynically label a decision as ‘intelligence and security’ to render it less susceptible to review without good reason. At the very least the President should be given discretion in these cases as is the situation with migration applicants. (page 3)

Duty of Tribunal in relation to security and law enforcement information

Clause 156 imposes a duty on the Tribunal, in relation to a proceeding in the Intelligence and Security jurisdictional area, to ensure, so far as possible, that information is not communicated or made available to a person if that communication or disclosure would prejudice:

• the security, defence or international relations of the Commonwealth, or
• law enforcement interests.

This clause replicates the duty imposed on the AAT in various proceedings currently dealt with in the Security Division—subsection 39B(11) of the AAT Act, section 36L(12) of the ACC Act and subsection 130H(10) of the FATA.

Subclauses 157(1) and (2) set out the matters the Tribunal must have regard to in considering whether to make an order under clause 70 restricting publication or other disclosure of information, in relation to a proceeding in the Intelligence and Security jurisdictional area. In addition to consideration of the principles listed in clause 71 the Tribunal must:

• always have regard to the need to avoid the disclosure of national security information, and
• if the proceedings is for the review of an intelligence and security decision—give particular weight to any submissions from the agency head.

Clause 158 provides that where a responsible Minister issues a security certificate regarding the disclosure of evidence or the making of submissions, when relevant evidence is adduced or the submission is made: the applicant must not be present; and the applicant’s representative must not be present without the Minister’s consent. It is an offence for the applicant’s representative to disclose the evidence/information.

Clause 159 provides that where a sensitive information certificate is issued by the Director-General of Security, the information must not be disclosed to the applicant or any person (other than certain listed persons).

Clause 161 provides that the responsible Minister may, in certain circumstances, issue public interest certificates. These apply to proceedings for review of an intelligence and security decision. This clause is equivalent to section 39B of the AAT Act, section 36L of the ACC Act and section 130H of the FATA.[102]

Comment

The Law Council in its submission to the House of Representatives Committee inquiry raised questions regarding clauses 158 and 159 and the potential for procedural unfairness. Comparing clause 159 with an equivalent provision in the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act) the Law Council notes:

Unlike the NSI Act, which establishes a weighted balancing exercise, taking into account countervailing interests in disclosure, clause 159 of the ART Bill and existing section 46(2) of the AAT Act operate as ‘blanket proscriptions’ in respect of certified information (as do certain other provisions in the ART Bill).

[…]

The Law Council suggests that further consideration be given to enabling a court to mitigate procedural unfairness occasioned by provisions such as clauses 158 and 159 of the ART Bill by disclosing some or all of the material subject to a non-disclosure certificate after balancing the countervailing interests in disclosure. (pp 31–32)

The Scrutiny of Bills Committee also has concerns with these provisions, similar to its concerns regarding the public interest certificate regime in clauses 91-94 (described above at page 26 of the Bills Digest). The Committee also queries why:

[…] the sensitive information certificate regime set out in clause 159 and the public interest certificate regime for the intelligence and security division set out in clause 161 are necessary in light of clauses 91 to 94. These clauses empower the Attorney-General to withhold information from parties to proceedings on the basis of public interest certificates. As outlined above […] these certificates are granted to prevent the disclosure of information or documents for the same public interest reasons prescribed in subclauses 159(2) and 161(2). It is therefore unclear why the regime in clauses 91 to 94 could not be applied to the security and intelligence division, and there appears to be no consideration of this issue in the explanatory memorandum.[103]

Decisions on review: additional limits

In relation to a reviewable decision, clause 105 (discussed above) provides the Tribunal must make a decision, affirming, varying or setting aside the decision. When setting aside the decision the Tribunal must either make a new decision or remit the matter to the decision-maker for reconsideration.[104] This standard provision would apply in relation to intelligence and security decisions made in the Intelligence and Security jurisdiction, with the exception of security clearance decisions and preventative detention decisions (clauses 163 and 164).[105]

Subclause 163(2) provides that the only powers available to the Tribunal in relation to a security clearance decision are to affirm the decision or set aside the decision and remit the matter back to ASIO for reconsideration, in accordance with any orders or recommendations from the Tribunal. The power to make a new decision is not available. This clause is equivalent to subsection 43(1AA) of the AAT Act.

Making and communicating decisions

Clauses 165-169 deal with the making and recording of findings and communication of these decisions made by the Tribunal in the Intelligence and Security jurisdictional area. These provisions apply instead of clause 111, the standard provision regarding giving notice of decision and statement of reasons (paragraph 165((b)). They do not apply in relation to exempt security record decisions or preventative detention decisions (paragraph 165((a)).[106]

Subclause 166(1) provides that the Tribunal must make and record its findings in relation to the reviewable decision, which may state the opinion of the Tribunal as to the correctness of, or justification for, any opinion, advice or information contained in the decision.

Clause 167 sets out the procedure by which the Tribunal must communicate its decision and findings. It largely replicates existing procedural requirements set out in the AATAct, ACCAct and FATA.[107]

The Tribunal is required to give written notice of its decision, and copies of its findings, to the applicant, the agency head and the responsible Minister. The agency head is obliged to provide the notice and findings to each relevant body.

The Tribunal has a directions power in relation to the disclosure of its findings. Where the whole or a particular part of the Tribunal’s findings relate to a matter that has not already been disclosed to the applicant, the Tribunal may order that these findings are not to be provided to the applicant, or the relevant body.

Clause 169 permits an applicant to publish the Tribunal’s decision and finding subject to any order of the Tribunal.

Comment on Part 6: Law Council

The Law Council, while acknowledging that the provisions in Part 6 are largely in line with existing approaches under the AAT Act and other legislation, suggests that it would be beneficial for the Independent National Security Legislation Monitor (INSLM) to review whether Part 6 of the Bill and related provisions are likely to operate fairly and appropriately in practice.[108] The Law Council further points out that in this context:

[…] certain provisions outlined in Part 6 of the ART Bill limit the applicant’s access to information including reasons for adverse decisions, their rights to be present when certain evidence is adduced or submissions made, and impose offences on the applicant’s representative in certain circumstances. (page 33)

The Law Council understands that this review would need to occur after the passage of the Bill.

The Law Council also recommends that this review should be complemented by the development of principles or guidance for relevant Commonwealth agencies regarding how broader administrative review objectives may best be achieved in the national security context. (page 34)

Part 8 Members and staff of the Tribunal

Introduction

Part 8 sets out new and radically different procedures for appointing members to the Tribunal and is arguably the area of most significant reform in the Bill. As Professor Crock noted in her submission to the House of Representative Committee inquiry ‘the most likely marker of success in the new tribunal will be the quality of the individuals appointed to adjudicate actual cases’.[109]

The Law Council strongly supports Part 8, arguing that it clearly sets out the structure, membership levels and staffing of the Tribunal, the functions of those membership levels and staff, and the appointment and termination processes. The Law Council also supports the emphasis on a merit based and transparent appointment process, which it argues is critical to promote public confidence in the Tribunal and to ensure its longevity.[110]

Tribunal structure and functions

As noted above, clause 10 provides that the Tribunal comprises:

• the President
• Deputy Presidents
• senior members
• general members.

A Judge who is to be appointed as a member must be appointed as the President or as a Judicial Deputy President.

Clauses 193-195 set out the functions of the members of the Tribunal.

The functions of the President include:

• participating as a member of the Tribunal by hearing matters, particularly of a complex, significant or sensitive nature.
• managing the business of the Tribunal and the performance and conduct of members
• ensuring that the Tribunal continually pursues its objective
• providing intellectual leadership to the Tribunal
• performing the duties of a jurisdictional leader if required.[111]

The Tribunal would be made up of eight jurisdictional areas: General, Intelligence and Security, Migration, National Disability Insurance Scheme, Protection, Social Security, Taxation and Business, and Veterans’ and Workers’ Compensation.[112] These Jurisdictional areas would replace the current Divisions listed in section 17A of the AAT Act.

Jurisdictional areas would be led by the President or by a Non‑Judicial Deputy President appointed on a salaried basis (subclause 197(1)). The President would be able to establish lists as subareas within jurisdictional areas (subclause 196(2)). This would be done in consultation with the Tribunal Advisory Committee.[113]

The Minister would assign the President and Non‑Judicial Deputy Presidents as jurisdictional area leaders in consultation with the President (subclause 197(1)). A Deputy President could be assigned to more than one jurisdictional area depending on workloads.

Jurisdictional area leaders’ functions would include:

• providing intellectual leadership
• identifying and managing trends and systemic issues in the caseload of the jurisdictional area
• managing the performance, conduct and professional development of members assigned to that jurisdictional area
• assisting the President to ensure that the Tribunal operates efficiently and effectively and continually pursues its objective across all jurisdictional areas. (subclause 197(5)).

Senior members would determine more complex matters (subclause 195(1)) and be assigned by the President to lead lists, established within jurisdictional areas (subclause 198(1)).

General members would participate as a member of the Tribunal and perform functions under this Bill and other Acts as required (subclause 195(2)).

The President would assign members to jurisdictional areas (clause 199). Before assigning a member, the President must be satisfied that the member has the appropriate skills, qualifications and experience. Under the equivalent provision in the AAT Act (section 17C) it is the Minister in consultation with the President who has responsibility for assigning members to particular Divisions.

Comment

Involving the President rather than the Minister is intended to allow more flexible deployment across the Tribunal’s jurisdictions.[114] The Law Council agrees stating there is no proper justification for giving the Minister a role in determining assignment of members. The Council’s submission on the Issues Paper argues that the ‘existing procedure is cumbersome, slows down the assignment process and unnecessarily limits the powers of the President who is uniquely placed to understand the strengths, expertise and capabilities of the various members in order assign practice areas’. (page 10)

Performance standard and code of conduct

Clauses 200 to 204 deal with performance standards and a code of conduct for non-judicial members. These are new features of the Tribunal. Specifically:

• Under clause 200 the President may give written directions to a member in the performance of their functions which the member must comply with.
• Clause 201 provides that the President must determine a code of conduct for members. A serious breach of the code of conduct is a ground of termination under clause 221.
• Clause 202 provides that the President must in writing determine a performance standard for members. A serious breach of the performance standard is a ground of termination under clause 221. The Explanatory Memorandum provides examples of what the performance standard could cover (page 166).
• Clause 203 sets out the powers of the President to investigate and take appropriate action in relation to the conduct of members.

Appointment of members of the Tribunal

Clauses 205-213 deal with the statutory appointment of members to the Tribunal. Members can be appointed to the role of President, Judicial Deputy President, non‑Judicial Deputy President, senior member, or general member. Among other things, the provisions set out:

• the process of appointment
• the qualifications for appointment
• the period of appointment
• the basis of appointment (for example salaried or sessional)
• the process of reappointment.

The appointment process is set out in clauses 205-208. All member appointments must be made by the Governor‑General on recommendation of the Minister. The Minister must be satisfied of certain elements, and must also take certain actions, before making a recommendation to the Governor‑General. These elements and actions differ slightly between the member levels, and these differences are summarised in the Table on pages 171–172 in the Explanatory Memorandum. These are new features which did not apply to the AAT.

For candidates for all roles except Judicial Deputy Presidents, the Minister must be satisfied that the candidate was assessed as suitable through a process that was merit‑based, publicly advertised, and complied with any requirements in the regulations (including requirements in relation to assessment panels). Clause 209 provides that the Minister may establish assessment panels. The regulations may make provision for and in relation to such panels.

A ‘merit based appointment’ is defined in clause 4. It must include:

•  an assessment of the comparative suitability of the candidates for the duties of the office, using a competitive selection process
• an assessment 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
• an assessment that takes into account the need for a diversity of skills, expertise, lived experience and knowledge within the Tribunal.

For non-judicial roles, before the Minister makes a recommendation to the Governor‑General of a member’s appointment they must also seek and take into account the advice of the President on:

• whether the appointment would meet the operational needs of the Tribunal
• the financial capacity of the Tribunal for the appointment
• the effect of the appointment on the relative numbers of the various levels of members (subclauses 207(2) and 208(2)).

Comment regarding appointment panels

In relation to clause 209 the Law Council questions why the Explanatory Memorandum does not provide a reason for the ART Bill stopping short of requiring the Minister to establish an assessment panel for the purpose of merit-based assessment of candidates. The Law Council is concerned that subclause 209(1), as currently drafted, will allow the Minister to bypass the assessment panel process, particularly in circumstances where the candidate may not have the requisite skills and experience.[115] The Law Council states:

It is essential for the Tribunal’s success that all appointments to the Tribunal are—and are perceived to be—merit-based.

[…]

In the absence of a compelling rationale from the AGD for the current form of clause 209(1), the Law Council suggests that clause be redrafted as follows: The Minister must establish one or more panels (assessment panels) of persons to assess a candidate or candidates for appointment as a member. (page 43)

The Centre for Public Integrity expresses a similar view stating ‘the Bill in its current form will not protect against precisely the kind of behaviour that led to its predecessor’s abolition’.[116]

The Centre for Public Integrity recommends that the Bill should mandate the use of ‘appropriately‑constituted assessment panels in the appointments process’. It also recommends that appointments should be genuinely independent of the executive, by requiring that the Minister only appoint candidates assessed as suitable by the assessment panel. If this is unable to be achieved, then the Minister should be required to table a statement of reasons in any case where an appointment is made contrary to panel advice. (page 7)

During the House of Representatives Committee inquiry hearings, Ms Sara Samios from the Attorney-General’s Department, explained the rationale for the approach adopted in the ART Bill stating:

Under the bill, the minister may only recommend a person for appointment to the Governor-General if they've been assessed as suitable through a process that is merit based. The definition of 'merit based' contains several elements, including that it is publicly advertised and that it includes a competitive selection process. There is also another element associated with consideration of the diversity.

There is a mechanism to provide additional detail in the regulations as to the operation and composition of assessment panels among other things. The government's intention is to, in regulation, make an instrument consistent broadly with what's in the current guidelines for appointment, which contain the requirement to publicly advertise and the requirement for panels' consistent approaches to selection criteria. Those would of course not be discretionary and they would be instruments capable of scrutiny by the parliament. (page 6)

Ms Samios acknowledged the views of some submitters to the inquiry about the need for the ART Bill to mandate the use of selection panels and indicated the Department was still looking at this option. However, Ms Samios also explained that part of the key reason for choosing the regulation model is that the recruitment processes are very large complex processes:

Across all of it we are talking about over a thousand applications for position numbers in the multiple hundreds. There are a lot of different things going on to make that actually work, so we are taking a bit of time to make sure that those things are prescribed in a form that make a lot of sense and that are workable and practical, because if you end up with an unworkable regulation with the scale of the exercise, you end up unable to deliver on the issue. (page 6)

Qualifications of members

Candidates must hold certain qualifications to be appointed as a member of the Tribunal. These requirements replace the qualifications set out in section 7 of the AAT Act. In particular:

• The President
  • must be a Judge of the FCA
• a Judicial Deputy President
  • must be a Judge of the FCA or the FCFCOA (Division 1)
• a Non‑Judicial Deputy President must be:
  • enrolled as a lawyer for at least 10 years, and either:
    • is a former Judge, or
    • have substantial expertise in one or more areas relevant to the jurisdiction of the Tribunal
• a Senior Member
  • must be enrolled as a lawyer for at least seven years, or
  • have at least seven years specialised training or experience in a subject matter relevant to the jurisdiction of the Tribunal.
• a General Member
  • must be enrolled as a lawyer for at least five years, or
  • have at least five years specialised training or experience in a subject matter relevant to the jurisdiction of the Tribunal.

Members appointed to the Tribunal must be appointed for five years, unless a shorter term is justified in the instrument of appointment. (This replaces the current appointment period under the AAT Act of up to seven years.)

The President must be appointed on a salaried basis. Judicial Deputy Presidents must be appointed on a sessional basis, and Non-Judicial Deputy Presidents, senior members and general members may be appointed on a sessional or salaried basis.

A Judicial Deputy President appointment differs slightly to other levels. It is not merit based and is not advertised. Before the Minister makes a recommendation of appointment to the Governor‑General, the Minister must consult the Chief Justice of the court of which the person is a Judge (clause 206). The Minister must also seek and take into account the advice of the President on:

• whether the appointment would meet the operational needs of the Tribunal, and
• the effect of the appointment on the ratios across the member levels.

The provisions also cover reappointment. In the case of Non-Judicial Deputy Presidents, senior members and general members reappointments may be made by written instrument made within 6 months before the end of the person’s instrument of appointment and advice of the President must be sought regarding the person’s performance. A full merit-based assessment and advertisement of the position would be required for every second reappointment (subclauses 207(9) and 208(10)).

Clause 218 requires members to disclose any actual or potential conflicts of interest to the President and clause 219 requires the President to keep a register of disclosures made. These provisions are a new feature of the Tribunal.

Process of terminating a member’s appointment

Under the AAT Act, termination of a member’s appointment was difficult. Section 13 provides the Governor‑General may remove a member who is not a judge, for proved misbehaviour or physical or mental incapacity, if both houses of the Parliament call for the removal.

Clause 221 sets out the new process for terminating a member’s appointment. There are mandatory and discretionary grounds for termination.

Subclause 221(1) provides that the Governor-General may on the recommendation of the Minister terminate a non-judicial member if:

• the member is convicted of an indictable offence
• the member is unable to perform the duties of the member’s office because of physical or mental incapacity
• the member’s conduct or behaviour amounts to serious misconduct[117]
• the member is absent, without leave, for certain prescribed periods of time
• the member engages in conduct that constitutes a serious breach of the code of conduct or performance standard (such as repeated breaches, breaches that negatively affect public trust and confidence in the Tribunal or by failing to comply with a direction from the President in relation to the breach)
• the member is a salaried member and engages in paid work outside their duties without the President’s approval
• the member is a sessional member and engages in paid work that conflicts or could conflict with the proper performance of the member’s duties, or
• the member fails, without reasonable excuse, to comply with the new disclosure of interests obligations set out in clause 218.

Termination is mandatory in the case of bankruptcy (subclause 221(3)).

Clause 222 requires the President to notify the Minister as soon as possible if the President reasonably believes that a ground for terminating a member’s appointment exists.

The grounds for termination have been expanded quite significantly. A table at page 186 of the Explanatory Memorandum provides a comparison of the termination procedures under the AATAct and the ART Bill.

Management of the Tribunal

Clauses 224-240 deal with the management of the Tribunal.

Principal Registrar

A combined position of Chief Executive Officer and Principal Registrar (Principal Registrar) would be responsible for assisting the President to manage the administrative affairs of the Tribunal and providing corporate and registry services (clauses 225-226). The Principal Registrar would be the Accountable Authority for the purposes of Commonwealth finance law.[118]

The appointment process for the position of Principal Registrar would be similar to the process for the President and members. It would be made by the Governor-General on recommendation of the Minister who must:

• be satisfied the person has appropriate qualifications, knowledge or experience
• be satisfied the appointment was made after a merit‑based, publicly advertised assessment process which complies with any requirements in the regulations
• obtain the agreement of the President for the appointment (clause 227).

Tribunal Advisory Committee

Clause 236 establishes a Tribunal Advisory Committee consisting of the President (who is to be chair), the Principal Registrar, the jurisdictional area leaders and any other members nominated by the President.

This is a new feature of the Tribunal, established to ‘promote collaboration between the decision‑making and administrative arms of the Tribunal, and provide a forum for strategic discussion about the Tribunal’s operations’.[119] The Tribal Advisory Committee functions are set out in subclause 236(4).

Other staff

Clause 237 allows the Principal Registrar to appoint registrars who must be suitably qualified or experienced staff. This is a new feature. The Explanatory Memorandum notes that with appropriate delegations or authorisations in place, registrars will be able to perform a range of functions or exercise powers in relation to giving notice to parties, granting extensions of time, holding directions hearings, appointing registrars or referring matters to dispute resolution processes.[120]

Staff of the Tribunal must be persons engaged under the Public Service Act 1999. For the purposes of the Public Service Act, the Principal Registrar and the APS employees assisting the Principal Registrar together constitute the Statutory Agency with the Principal Registrar being the head of that agency (clause 238).

Annual report

Clause 242 requires the President to produce an annual report, and sets out what must be included in the report. It differs from the equivalent provision in the AAT Act (section 24R) in providing more specific details of what is to be included in the report.

Part 9: Administrative Review Council

As noted above, the Council’s effective abolition by the Abbott Government in 2014 was achieved through cessation of funding and by not re-appointing Members. The provisions in the AAT Act dealing with the Council (Part V) were not formally repealed.

Part 9 of the ART Bill re-establishes the Council. Many of the provisions in Part 9 to do with functions, membership, meetings and remuneration are substantially the same as those in the AATAct.

Membership of the Council continues to consist of:

• the President of the Tribunal
• the Commonwealth Ombudsman
• the Australian Information Commissioner, and
• not fewer than three or more than 10 other appointed members.

However, the President of the Australian Human Rights Commission and the President of the Australian Law Reform Commission will no longer be members.[121]

The maximum period of appointment has been increased from 3 years to 5 years, and reappointment is available.[122]

Subclause 249(1) sets out the functions of the Council which include:

• to monitor the integrity and operation of the Commonwealth administrative law system
• to inquire into the adequacy of procedures used in relation to the making of administrative decisions and the exercise of administrative discretions, and consult and advise in relation to those procedures
• to inquire into systemic issues related to the making of administrative decisions and the exercise of administrative discretions
• to inquire into the availability, accessibility and effectiveness of review of administrative decisions and administrative discretions
• to develop and publish guidance in relation to the making of administrative decisions and the exercise of administrative discretions
• to support education and training for officials of Commonwealth entities in relation to administrative law.

Subclause 249(2) stipulates that the Council may inquire into and prepare a report and make recommendations to the Minister on a matter relating to any of the Council’s functions. The Council is able to do so on its own initiative or at the request of the Minister. This represents a substantive change to the equivalent sections in the AAT Act which did not expressly enable it to conduct inquiries of its own motion and placed obligations on the Council to inquire and report on matters at the direction of the Minister. Professor Matthew Groves states that this change is extremely welcome and the Explanatory Memorandum notes it ‘more accurately reflects that the Council, as an independent body, is not subject to ministerial direction’.[123]

The Explanatory Memorandum notes that the Council’s functions respond to recommendations of the Robodebt Royal Commission Report which called for the re-instatement of the previous Council with a similar role and functions as those established under the AAT Act.[124]

As noted above, the Callinan review, the Senate Committee report and many members of the legal profession also strongly support the re-establishment of the Council.

Eligibility for appointment as a Council member is set out in clause 254. Similar to existing section 50 of the AAT Act a person must:

• have an extensive knowledge of administrative law or public administration
• have extensive experience providing legal services related to administrative law
• have direct experience, and knowledge, of the needs of people, or groups of people, significantly affected by government decisions, or
• be an official of a Commonwealth entity who:
  • is an Agency Head or SES employee (or equivalent).

There are also additional requirements that are not in the AAT Act. The Minister, when recommending an appointment to the Governor‑General, is take into account the need for a diversity of skills, expertise, experience and knowledge within the Council, and ensure that:

• there are at least two appointed members who were not officials of a Commonwealth entity immediately before their appointment, and
• there is at least one appointed non‑government member who has direct experience, and direct knowledge, of the needs of people, or groups of people, significantly affected by government decisions.[125]

Clause 261 sets out the process for terminating a Council member’s appointment. There are mandatory and discretionary grounds for termination. The grounds for termination have been expanded quite significantly[126] and are very similar to those for Tribunal members described above. The Governor-General may on the recommendation of the Minister terminate an appointed member of the Council if the appointed member:

• is unable to perform the duties of office because of physical or mental incapacity
• is absent without leave from 3 consecutive meetings of the Council
• is convicted of an indictable offence
• has engaged in serious misconduct
• fails, without reasonable excuse, to comply with the new disclosure of interests obligations set out in clause 259.

The mandatory grounds for termination include where a Council member becomes bankrupt.

Part 10: Administrative decision-making practice

Part 10 of the ART Bill sets out provisions dealing with administrative decision‑making practice. The provisions are broadly equivalent to sections 27A, 27B and 28 in the AAT Act with minor updates. Further detail is available in the Explanatory Memorandum at pages 220–227.

Generally, a decision‑maker is required to take reasonable steps to give a person affected by a decision, notice of the decision and any right to have that decision appealed (either in the Tribunal or some other way, such as internally (clause 266)). There are exceptions to this, including where another Act or instrument requires notice to be given of review rights (subclause 266(6)).

Clause 267 provides that in giving notice of a decision, the decision‑makers must have regard to matters prescribed by the rules. This applies for all decisions, regardless of whether they are required to give notice through clause 266 of this Bill or through requirements set out in other Acts and instruments. The Explanatory Memorandum states that this is a substantial departure from existing section 27B of the AAT Act and is intended:

to encourage the widespread adoption of best practices in administrative decision‑making, improving the quality and consistency of such notices across the Commonwealth.[127]

A person whose interests are affected by a reviewable decision may request the decision‑maker to give a statement of reasons for the decision (clause 268). Applications can be made to the Tribunal if a statement of reasons is not given or is inadequate (clauses 270 and 271).

Part 11: Miscellaneous matters

Part 11 deals with a range of matters and includes provisions relating to confidentiality, delegations and authorisations, and the power to make rules and regulations.

Delegation and authorisations

Clauses 278, 279 and 280 provide for the delegation of powers of the Minister, the President and the Principal Registrar:

• the Minister may delegate functions and powers to the Secretary of the Department or the President (note that under the AAT Act the Minister may only delegate to the President)[128]
• the President may delegate functions and powers to a member, the Principal Registrar, a registrar or a staff member (in contrast, under the AAT Act the President may only delegate to a member)[129]
• the Principal Registrar may delegate functions and powers to a registrar or a staff member.

The provisions also list the powers and functions that may not be delegated.

Clauses 281-287 (Division 4) allow members, registrars and other staff to be authorised to perform certain functions and exercise powers of the Tribunal. These authorisations differ from delegation in that they relate to powers and functions of the Tribunal rather than a person. Delegations relate to powers and functions of a person.[130]

Clauses 284 and 285 include tables detailing the specific functions and powers that members and registrars may be authorised to perform and exercise.

The Explanatory Memorandum argues these authorisation provisions present a significant improvement to the authorisation arrangements in the AAT Act:

First, it centrally locates all authorisation provisions in one Division of the Bill.

Second, it broadens the range of powers and functions that can be exercised and performed by staff appointed as registrars. This is intended to increase flexibility and efficiency within the Tribunal by allowing a broader range of people with appropriate qualifications and experience to exercise and perform some of the Tribunal’s powers. The Bill will enable members to focus on conducting hearings, making decisions and undertaking other tasks that require more complex analysis or a significant exercise of discretion. Giving the President the power to authorise registrars to undertake a wider range of tasks, including exercising additional case management and procedural powers, contributes to the Tribunal’s efficiency. (pages 235–236)

Legal or financial assistance and its disapplication  

Clause 294 of the ART Bill provides that certain people can apply for legal or financial assistance in relation to Tribunal proceedings, which may be granted if the Attorney-General considers that refusing the assistance application would cause the person hardship, and that providing assistance is reasonable in all the circumstances. This provision is equivalent to section 69 of the AAT Act.

Comment

The Law Council supports clause 294 but notes with concern that the Consequential Bill 1 provides that clause 294 does not apply for some matters, including for:

• social security and child support matters, unless the application is in relation to a matter that is before the guidance and appeals panel for review, and
• reviewable migration decisions and reviewable protection decisions.[131]

In the absence of a rationale for the disapplication of clause 294 in the above matters, the Law Council recommends that clause 294 apply to all matters to ensure that the Tribunal is accessible and can ensure an applicant’s right to representation, especially for vulnerable applicants in social security and migration matters. (page 50)

The Scrutiny of Bills Committee is also concerned about the disapplication of clause 294 arguing that it may limit the ability of a person adversely affected by a decision to have a fair hearing. This it argues is particularly likely ‘in the case of individuals seeking a migration or protection decision, who may have limited or no English-speaking ability’. ^[132]

The Scrutiny of Bills Committee argues that the Explanatory Memorandum’s statement that this clause follows existing arrangements in the MRD of the AAT, is not in itself sufficient justification for a provision that will affect a person’s right to a fair hearing. The Committee therefore requests the Attorney-General’s advice as to why it is considered necessary and appropriate to restrict a person’s right to apply for legal or financial assistance in relation to the review of a migration or protection decision. (page 16)

During the House of Representatives Committee inquiry hearings, Ms Sara Samios from the Attorney-General’s Department, explained the rationale for the approach adopted in the ART Bill stating:

The concept of legal and financial assistance, in this context, I think, is confusing because it's not legal assistance in the way that most people think about it. This is a small, discretionary program managed by the Attorney-General's Department, through which the Attorney-General can give discretionary amounts of money. Generally the AAT, currently—and we'd expect in the future—is limited to small disbursement amounts. It's not the kind of legal assistance function that I think you would have in mind. It's just a really limited little program that is not legal assistance in the way that most people have in mind. Both the migration and the social security cohort are already existing priorities in legal assistance, so they generally have mechanisms for access to legal assistance—subject to merit and means, of course—through the National Legal Assistance Partnership and that larger program. (page 14)

Key issues and provisions: the Consequential Bill 1

The Consequential Bill 1 includes amendments to legislation in key portfolios, such as the Home Affairs, Social Services, Treasury, Veterans’ Affairs, and the National Intelligence Community.

Many of these amendments are minor, consisting of updating cross references to other legislation and changing terminology to reflect the repeal of the AAT Act and its replacement by the ART Bill.

Other amendments provide for transitional arrangements enabling the transfer of the existing caseload to the ART and the transfer of staff from the AAT to the ART.

The more significant and complex amendments update portfolio legislation that has established a framework of administrative review with special arrangements and modifications regarding review of decisions. These special arrangements exist in a number of areas including migration, social security and veterans affairs and vary markedly across different portfolios. The Consequential Bill 1 makes amendments to take account of the ART Bill and the new set of standards and powers which the Tribunal can use to resolve matters. The Bills Digest deals only with Schedule 2, which contains amendments to the Migration Act relating to the review process for migration and protection visa applicants. The Explanatory Memorandum contains a detailed explanation of other legislation.

Administrative review of migration decisions and protection visa decisions

The MRD within the AAT operates differently to other Divisions. Central to administrative review by the MRD is section 24Z of the AAT Act. It provides that Part IV of the AAT Act, which sets out the rights, powers and procedures which apply to the Tribunal’s review of decisions, does not apply to the MRD.[133] Instead, the jurisdiction, powers and procedures of the AAT to review migration or protection visa decisions, also known as the codes of procedure, are set out in the Migration Act 1958 and the Migration Regulations 1994 and dispersed across three separate Parts of the Act. Specifically:

• Part 5 of the Migration Act applies to the review of a range of migration-related decisions, including most decisions relating to the refusal or cancellation of visas, in the MRD.
• Part 7 of the Migration Act applies to the review of a certain decisions about the refusal or cancellation of protection visas, in the MRD.
• Part 7AA of the Migration Act establishes the Immigration Assessment Authority (IAA), which conducts a ‘fast track’ or more limited merits review of certain refugee status determination decisions. IAA review has been described as being more like an internal review than an administrative appeal. The presumptive starting point is that the review must be carried out without accepting or requesting new information, and without interviewing the applicant.

Key amendments

Abolition of the Immigration Assessment Authority 

Item 228 of Schedule 2 to the Consequential Bill 1 repeals Part 7AA of the Migration Act and so abolishes the IAA. The effect being that those matters that are or would have been eligible to be referred to the IAA will instead be reviewed as a reviewable protection decision by the Tribunal under Part V of the Migration Act.

Comment

The proposed repeal of Part 7AA is welcomed amongst the legal profession. The Law Council strongly endorses the abolition of the IAA, noting that it has made consistent calls to abolish the IAA ‘given the flaws in its legal framework and its inherent unfairness to applicants, which denies procedural fairness and natural justice’.[134]

The Office of the United Nations High Commissioner for Refugees (UNHCR) in its submission to the House of Representatives Committee inquiry warmly welcomes the proposed abolition of Part 7AA but also urges the Government to address the situation of those with resolved cases who may require re-adjudication or access to alternative solutions. (page 2)

Consolidation of Parts 5 and 7 of the Migration Act

Item 228 repeals Part 7 of the Migration Act dealing with protection visa applications. In its place Schedule 2 standardises and harmonises the review process for migration and protection visa applicants into an amended Part 5. This will reduce the differences in provisions applicable to reviewable migration and protection decisions.

Interaction with the standard ART review procedures

As noted above, existing Part IV of the AAT Act dealing with procedures and powers of the AAT is excluded from operation under the MRD and replaced with more restrictive codes of procedure that apply in migration and protection matters. A number of reports have argued that these codes of procedure are a major cause of the problems in the MRD. The AAT in its submission to the Senate Committee inquiry pointed out that members were limited in how they could conduct review ‘due to some of the codified procedural requirements set out in the Migration Act’ (p. 18).

The Consequential Bill 1 does not include an equivalent blanket exclusion and many of the standard procedures and powers of the Tribunal as set out in the ART Bill will apply. However, the Consequential Bill 1 does exclude parts of the ART framework and retains some of the more restrictive practices that currently apply. This approach is confirmed in proposed subsection 336P(1) of the Migration Act,[135] which provides that the ART Act applies in relation to a review by the ART of reviewable migration decisions and reviewable protection decisions unless expressly excluded in the Migration Act. Where provisions of the ART Bill do apply, they apply subject to section 357A of the Migration Act.[136]

The following section provides selective examples of how the new framework would work.

Excluded sections of the ART Bill

Proposed subsection 336P(2)[137] lists provisions of the ART Bill which are not to apply to Tribunal reviews of migration and protection decisions. These include:

• paragraphs 21(2)(b)-(c) of the ART Bill: dealing with initial notification requirements
• clauses 23 to 25 of the ART Bill: rules for decision-makers to provide the Tribunal with documents and statements
• clause 27 of the ART Bill: general rule for decision‑maker to give copies of reasons and documents to other parties
• clause 32 of the ART Bill: reviewable decision continues to operate unless Tribunal orders otherwise
• clause 85 of the ART Bill: Tribunal may remit decision to decision-maker for reconsideration
• clause 107 of the ART Bill: when Tribunal’s decision on review comes into operation
• clause 294 of the ART Bill: the provision of legal or financial assistance.

Comment

The UNHCR submission argues against disapplying provisions in the ART Bill to reviewable migration and protection decisions pointing particularly to clauses 27 and 294. UNHCR is of the view that disapplying clause 27 will result in arrangements that are ‘considerably inferior to those provided to other applicants before the Tribunal and despite the need for efficiencies, UNHCR considers that maintaining the same standards of procedural fairness is appropriate’. (page 3)

As noted above, the Law Council and the Scrutiny of Bills Committee have also expressed concern regarding the disapplication of clause 294, the Law Council arguing that ‘enabling a person to apply for legal or financial assistance, should apply to all matters’.[138]

Retention of the exhaustive statement of the natural justice hearing rule

The Migration Act contains an exhaustive statement of the natural justice hearing rule (the exhaustive statement).[139] This statement is the basis for the conduct of proceedings in review of migration and protection proceedings.

The Consequential Bill 1 provides that the exhaustive statement will continue to operate although in a significantly amended form. It will be contained in new Division 4 of Part 5 of the Migration Act. Some parts of the statement are to be repealed and in their place, the standard provisions in the ART Bill will apply. For example, the current prohibition on legal representation, section 366A in the Migration Act is to be repealed (item 168) and instead, representation will be allowed according to the standard rules in clause 66 of the ART Bill.

Proposed subsection357A(2A) of the Migration Act (item 151) clarifies that, if there is any inconsistency between the exhaustive statement in new Division 4 and any of the following provisions in the ART Bill, Division 4 prevails to the extent of the inconsistency:

• clause 49, which provides the Tribunal has discretion as to how it conducts proceedings
• clause 50, which provides the Tribunal must conduct proceedings with as little formality and technicality as a proper consideration of the matters before it permits
• clause 53, which provides the Tribunal may determine the scope of the review, and
• clause 55, which requires the Tribunal to ensure that each party is given reasonable opportunity to present their case.

Private hearings to be held for protection proceedings

Under proposed section 367B of the Migration Act (item 170), hearings for review of protection decisions must be held in private. In contrast, hearings for review of migration decisions will generally be in public in accordance with clause 69 of the ART Bill. This reflects current arrangements in section 429 of the Migration Act, which will be repealed by item 228 of Schedule 2 to the Consequential Bill 1. The rationale for private hearings in protection hearings being the need to protect the safety and interests of applicants who have experienced or are at risk of trauma or abuse.

Exclusion of migration and protection decisions from review by the guidance and appeals panel

As noted above, Part 5 of the ART Bill would establish a new guidance and appeals panel within the Tribunal. The panel would be able to review some decisions made by the decision-maker and re‑review some decisions made by the Tribunal.

Under proposed section 500AA of the Migration Act (item 284, Schedule 2) applicants who have had a Tribunal decision made for a migration or protection decision may not make an application for a further Tribunal review in the guidance and appeals panel. 

However, the President of the Tribunal retains the ability to refer matters to the guidance and appeals panel, if satisfied that the application raises an issue of significance to administrative decision‑making and if it is appropriate in the interests of justice.[140]

This restriction on appeal to the guidance and appeals panel is justified on the grounds of supporting ‘the efficient and timely resolution of matters, to preserve the finality of Tribunal decisions (ensuring clear visa status for applicants), and to prevent applications being made to the guidance and appeals panel to prolong an applicant’s stay in Australia’.[141]

Professor Mary Crock submits that while it is disappointing that migration applicants are not given a right to seek the constitution of a guidance panel, she notes that the President has discretion to convene such a panel in appropriate instances.[142]

Notification framework

Separate rules for the giving and receiving of documents are to be retained. These are set out in new Division 7 of Part 5 of the Migration Act (item 189 of Schedule 2) and displace the equivalent provisions in the ART Bill.

The provisions in Division 7 stipulate the modes of providing documents – including by hand to a person, to a person at the last residential or business address, by post and electronic means - and when those documents are taken to have been received. When the notification is taken to be received is non-rebuttable. The Explanatory Memorandum explains that these requirements ‘may apply to a range of notifications required or permitted under the Migration Act or ART Bill, for example, providing adverse information to an applicant, notifying them of a hearing, or informing them of a Tribunal direction’ (p. 10). It argues these separate procedures enable the Tribunal to continue the review on the basis that all documents, provided in accordance with Division 7, have been received by the applicant, supporting an efficient review’ (p. 10).

Retention of time limits

Schedule 2 retains a separate code relating to time limits on applying for review of migration and protection visa decisions.

Proposed section 347 (item 136) provides that application to the ART for review of a migration decision or a protection decision must include: any prescribed information, any prescribed documents and must be accompanied by the prescribed fee.

Proposed subsections 347(3) set out standardised timeframes for applications:

• for those in immigration detention: seven days after notification
• otherwise: 28 days after notification.

These time limits override the general rule in clause 18 of the ART Bill which requires a minimum time frame of 28 days (proposed subsection 347(4)).

In addition, the Tribunal is prevented from extending these time limits (proposed subsection 347(5)).[143]

Comment on Schedule 2

The Law Council, the UNHCR and Professor Crock raise a number of similar concerns regarding Schedule 2.

The Law Council welcomes those provisions in the Consequential Bill that repeal Part 7 of the Migration Act, and aim to provide a single, more harmonised process for the review of migration and protection visa decisions in Part 5 of the Migration Act.[144]

However, it argues that the Consequential Bill 1 also represents a missed opportunity, in that it includes ‘certain provisions which disapply, or apply instead of / in addition to provisions of the ART Bill’. These include: ‘the codification of the natural justice hearing rule, the scope of which would be adjusted but nevertheless retained for particular aspects of migration and protection visa review, as well as certain procedural provisions’. The Law Council’s submission continues:

The Law Council retains its general concern that the Tribunal may continue to operate in a more inefficient and less fair manner as a result. In this context, the Law Council is conscious that the AAT has itself indicated that a codified natural justice hearing rule for migration and refugee matters, compared to the common law approach, has substantial resource implications for its members and staff, including training and a vast additional manual.

Whilst acknowledging that such provisions are ostensibly directed toward workability, certainty and finality, the Law Council considers that the justification for retaining a codified natural justice hearing rule in key areas is insufficient, and that it can be overly complex for the end user of the Tribunal to understand. That is, it is unclear why the Commonwealth would wish to deviate from the common law on natural justice. (page 54)

The Law Council therefore recommends that:

The Department of Home Affairs must provide a stronger justification for the proposed retention in Schedule 2 of a codified natural justice procedure in the Migration Act, with specific regard to the ART Bill’s reform objectives of fairness, efficiency and accessibility. In the absence of stronger justification, migration decisions should be subject to the ordinary rules of natural justice. (page 55)

The UNHCR in its submission to the House of Representatives Committee inquiry states:

Retaining varying lodgement timeframes, inflexible timeframes for decision-making, and the absence of any discretion to extend timeframes, even in the most exceptional circumstances, can have dire consequences for those we serve, especially if deprived of their liberty and at risk of removal. UNHCR considers that creating equivalent procedural fairness for all applicants before the Tribunal is critical to achieving the overall objective of the reform. We emphasize that it is possible to create an efficient system while maintaining procedural fairness, therefore, UNHCR strongly recommends the adoption of reasonable and fair timeframes that can be extended, as necessary, consistent with other jurisdictions of the Tribunal’s operation. (page 2)

[…]

In summary, while UNHCR commends the government’s concerted efforts to reform the federal system of administrative review to strengthen decision-making and welcomes the introduction of this legislation and the abolition of the fast track review process, UNHCR has significant concerns with respect to a bifurcated system whereby applicants seeking review of migration and protection decisions are afforded diminished procedural standards. (page 4)

Professor Mary Crock argues that the separate code for migration and protection review, especially provisions preventing the Tribunal from extending time limits in migration cases, is a major shortcoming for three reasons. She states:

First, the inflexibility of time limits undermines the ability of the tribunal to deliver effective and efficient justice for applicants. If the tribunal is denied jurisdiction to hear a case, applicants must either apply for judicial review in the Federal Court or they must seek an exercise of the Minister’s ‘non-reviewable, non-compellable’ discretion (see s 351 of the Migration Act). With the backlog in judicial review applications and the overwhelming number of ministerial appeals, it is difficult to see the wisdom in this constraint on the new ART.

Second, where it is separate (or bespoke) for migration applicants, the code is always more punitive and restrictive than the general ART provisions. It is very disappointing that migrants should continue to be treated as persons with inferior procedural entitlements. Specifically, at a time when almost one in two Australians were either born overseas or have an overseas born parent, we should stop seeing migrants as less worthy of procedural entitlements just because they are non-citizens. This is most especially the case where applications can involve matters of life and death – or profound disruption to human rights, including the right to live with a partner and immediate family.

The third reason why the maintenance of a separate code for migration cases is disappointing is that it suggests an unwillingness to bring immigration fully back into the mainstream of administrative review. A great many changes to the Migration Act have been made over time to counter-act particular judicial rulings in a process I describe as ‘tit-for-tat’ law making. The result is the legislative equivalent of the House that Jack Built: the Migration Act is a veritable nightmare at the heart of a system that the Minister for Home Affairs rightly describes as ‘broken’. While the Migration Act retains a bespoke procedural code for merits review the capacity for tit-for-tat law making will continue. It would be much more difficult to get amendments to the ART Act where one affected Minister or Department dislikes a particular ruling. Incidentally, my personal view is that a single process residing in the ART Act would actually take the political heat out of migration appeals because they would be part of a universal system. In other words, a unified code could deliver a win-win for migrants and government.[145]