Foreword

Foreword

The House of Representatives Standing Committee on Social Policy and Legal Affairs conducted an inquiry into the Administrative Review Tribunal Bill 2023 (ART Bill) and the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023 (Consequential Bill), at the request of the Attorney-General. The Committee scrutinised the bills to ensure they achieve the Government’s policy objectives and do not have unintended consequences.

The ART Bill would establish the Administrative Review Tribunal (ART) and re-establish the Administrative Review Council (ARC). The Consequential Bill repeals the Administrative Appeals Tribunal Act 1975, makes consequential amendments to several Commonwealth acts and provides for the transition of the Administrative Appeals Tribunal’s (AAT) operations, caseload and staff to the ART. The bills are intended to, among other things:

  • provide for a mechanism of review that is fair and just; timely, informal and inexpensive; accessible and responsive; improve the transparency and quality of government decision-making and improve public trust and confidence in the tribunal
  • re-establish the ARC
  • retain the jurisdiction of the AAT and make essential modifications to the operation of the merits review framework
  • promote consistency and simplicity by repealing special arrangements that overlap duplicate or unnecessarily displace core provisions of the ART Bill.

The bills would implement all three recommendations of the Senate Legal and Constitutional Affairs Committee’s inquiry into the performance and integrity of Australia’s administrative review system, four recommendations of the Royal Commission into the Robodebt Scheme and two recommendations of the Rapid Review into the Exploitation of Australia's Visa System.

It is clear the AAT has lost the confidence of the Australian public and there is broad support for establishing the new administrative review regime with the bills’ stated objectives. The proposed reforms create a new tribunal that would be a self-correcting system with several backstops to ensure that government and ART decisions are made correctly and transparently, that defective decision-making by government can be held to account and that systemic issues will be escalated and responded to effectively. These features include the ARC, which will be independent from government and will monitor and support the integrity of the administrative review system. The new tribunal advisory committee and the Guidance and Appeals Panel will review the operation of the ART, respond to emerging issues and help ensure correct and consistent decisions are made. The new code of conduct and performance standard requirements, stronger reporting obligations and a requirement for professional development for members and staff further support the bills’ objectives.

Some concerns were raised there will no longer be an automatic second-tier review for social security and family assistance matters, as the AAT currently provides. The Committee is satisfied that the best elements of first and second tier review have been incorporated into the design of the ART and that systemic issues will be escalated. The new model of review will be accessible to allow people to resolve their matters as quickly as possible without unnecessary formality. The GAP will then provide a critical safeguard to deal with material errors of law and fact. That said, the Committee encourages the Government to continue to engage with stakeholders and work through their concerns in relation to the proposed changes to the existing two-tier merits review structure for social security and family assistance decisions.

Several submitters suggested the ART Bill should require the use of a selection panel in the appointments process for ART members. While this is not strictly necessary, because the Government has indicated that such matters can and will be provided for by legally-binding regulations, the Committee encourages the Government to give further consideration to adopting that suggestion.

The provision of legal aid, particularly to vulnerable applicants, will be important to the ART’s success in meeting its policy objectives. The Committee is aware that the legal services that assist applicants to the AAT may have limited capacity to support any further demand generated by the transition from the AAT to the ART. The Committee strongly supports the Government acting on the findings of the upcoming review of the National Legal Assistance Partnership.

While noting the proposed new administrative arrangements for migration and protection matters do not go as far as many would like, the Committee is of the view that the Consequential Bill meets the intended policy objectives of streamlining the administrative appeals process, while maintaining the current principles of administrative review. Together with other measures announced by the Government, the arrangements in the bills will help address the crippling delays in the Migration and Refugee Division of the AAT. Those delays are motivating bad actors to take advantage by lodging increasing numbers of non-genuine applications for protection and this comes at a cost to people in genuine need of protection and to the broader Australian community.

The Committee recommends that both bills pass the House and 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, which has until 24July2024 to report.

The Committee is grateful to all those who contributed their time and expertise to this inquiry by preparing quality submissions during December 2023 and January 2024.

Ms Susan Templeman MP

Chair

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