Chapter 1Introduction
1.1On 8 February 2024, the Senate referred the provisions of the Administrative Review Tribunal Bill 2023 (ART Bill), the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023 (Consequential Bill No. 1) and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Bill 2024 (Consequential Bill No. 2)—collectively referred to as 'the bills'—for inquiry and report by 24 July 2024.
1.2The ART Bill would establish a new federal administrative review body, to be known as the Administrative Review Tribunal (ART). Consequential Bill 1 would repeal the Administrative Appeals Tribunal Act 1975 (AAT Act) to abolish the Administrative Appeals Tribunal (AAT). Consequential amendments would be made by Consequential Bill No. 1 and Consequential Bill No. 2.
1.3On 21 March 2024, the bills passed the House of Representatives with amendments. Key amendments to the bills included:
strengthening the requirements for merit based appointment processes;
requiring a statutory review of the operation of the bills;
renaming litigation guardians as litigation supporters;
ensuring parties to an ART review can access adequate statements of reasons for a decision;
providing a pathway for parties to reviews of social services decisions to seek second review of ART decisions; and
making changes to the Migration Act 1958 (Migration Act) to ensure clear and unambiguous drafting, improve operation of certain provisions, and ensure consistency across matters in the Migration Act—including clarifying that, where requested by an applicant, the Department of Home Affairs must provide access to documents it provides to the ART for the purposes of a review.
1.4While discussion in this report refers to a number of these amendments, its content primarily reflects the focus of the committee's inquiry, which was the provisions of the bills as originally referred to the Senate Legal and Constitutional Affairs Legislation Committee (committee).
Structure of this report
1.5The report comprises two chapters. Chapter 1 provides background information and outlines key elements of the bills as referred to the committee. Chapter 2 examines the key issues raised by submitters and sets out the committee view and recommendation.
Context of the bills
1.6This section provides a brief outline of the AAT and the legislative framework under which it operates, as well as recent consequential reviews and reports into its performance, funding, and operation.
The AAT
1.7The AAT is a vital arm of Australia's administrative law system and plays a crucial role in providing merits review of Commonwealth government and agency decisions. It was established by the AAT Act and commenced operations on 1 July 1976. The AAT provides a direct pathway for individuals and organisations to have administrative decisions of government independently reviewed and can undertake reviews of decisions made pursuant to more than 400 Commonwealth Acts and legislative instruments which confer jurisdiction on the AAT.
1.8The AAT consists of the President, who must be a judge of the Federal Court of Australia (FCA), a Registrar, who is responsible for the administration of the AAT, and members who may be appointed as deputy presidents, senior members or general members. At present, AAT members are selected by the Attorney-General based on the recommendations of the AAT President, which are then signed off by the Governor-General. The Attorney-General can also nominate candidates outside this process, without publishing reasons.
1.9The AAT is currently organised into nine divisions, including the Migration & Refugee Division—which includes the Immigration Assessment Authority (IAA). Each division applies different caseload management strategies to monitor the allocation of resources, the constitution of cases, and performance. In 2015, the Migration Review Tribunal, Refugee Review Tribunal and the Social Security Appeals Tribunal were merged and incorporated into the AAT.
1.10Currently, there is a right of appeal to the General Division of the AAT for a second review (two-tier review) to parties who are dissatisfied with a first level review decision at the Social Services and Child Support Division.
Reform of the AAT
1.11Since its establishment, the operation and functioning of the AAT has been the subject of several reviews and inquiry reports. These reviews and reports have called for significant reforms to the AAT, including measures to deal with resourcing and caseloads and the adoption of a more transparent and merit‑based appointments process for AAT members.
1.12In March 2022, the Senate Legal and Constitutional Affairs References Committee (References Committee) reported on the performance and integrity of the administrative review system. The final report recommended the abolition of the AAT and the establishment of a new federal administrative review body, the establishment of a transparent merit-based selection process for members of the AAT, and the re-establishment of the Administrative Review Council (ARC).
1.13On 16 December 2022, the Attorney-General announced that the Australian Government (government) would abolish the AAT and replace it with a 'new administrative review body that is user-focused, efficient, accessible, independent and fair'.
1.14The Attorney-General's Department subsequently conducted consultation on the design of the new ART in April and May 2023, and sought advice from the Administrative Review Expert Advisory Group, chaired by former High Court Justice, the Hon Patrick Keane AC KC. Following further consultation with relevant stakeholders, the government introduced the first two bills on 7December 2023, with the third bill introduced on 7 February 2024.
1.15According to the government, the bills would give effect to:
all the recommendations of the References Committee's report;
four recommendations of the Royal Commission into the Robodebt Scheme; and
the government's response to two recommendations of the Rapid Review into the Exploitation of Australia's Visa System.
1.16On 14 December 2023, the House of Representatives Standing Committee on Social Policy and Legal Affairs (HoR Committee) was referred an inquiry into the ART Bill and Consequential Bill 1. The HoR Committee recommended that both bills be passed by the House of Representatives without amendment.
Overview of the bills
1.17This section includes a brief overview of the key provisions of the ART Bill and the more substantive amendments that would be made by Consequential Bill 1 and Consequential Bill 2. This overview reflects the provisions of the bills as referred to the committee for inquiry in February 2024.
Key provisions of the ART Bill
1.18The ART Bill, as referred to the committee, contains 11 parts. It would establish the ART, including the new body's membership, structure, review procedures and other matters. It would also re-establish the ARC.
1.19Part 1 details several preliminary matters, including the short title, commencement, simplified outline, definitions used in the ART Bill, and the ART's jurisdiction. It also provides that other Acts or instruments may modify or disapply provisions of the bill where there is a contrary intention.
Establishment of the ART
1.20Part 2 would establish the ART and set out its objective. According to the Explanatory Memorandum (EM), the ART's objective would be to provide an independent mechanism of review that:
is fair and just;
ensures that applications to the ART are resolved as quickly, and with as little formality and expense, as a proper consideration of matters before the ART 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 ART.
Starting a review
1.21Part 3 outlines key concepts and processes for administrative review by the new ART. The ART Bill provides that a decision is a 'reviewable decision' if an Act or legislative instrument provides for an application to be made to the ART for review of the decision. According to the EM, this means that other Acts and legislative instruments—not this bill—determine the ART's jurisdiction.
Proceedings
1.22Part 4 sets out the process the ART would follow when an application for review is made. This includes how to apply to the ART, the ability of the President to make practice directions, provisions about constituting the ART for a proceeding, general procedural matters, the powers of the ART, the role of public interest certificates and interventions in the ART, details about ART decisions, what happens after a proceeding ends, and offences related to proceedings.
Guidance and Appeals Panel
1.23Part 5 would establish a Guidance and Appeals Panel (GAP) within the ART and provide for its operation and the referral of matters. The GAP would provide a mechanism for escalating significant issues and addressing material errors in ART decisions. According to the EM, this would promote consistent decision-making by the ART and rapid responses to emerging issues.
Intelligence and security proceedings
1.24Part 6 sets out the special rules and procedures that would apply for intelligence and security jurisdictional decisions in the ART. The ART Bill would provide that the ART's powers around proceedings that relate to an intelligence and security decision are to be exercised in the Intelligence and Security Jurisdictional Area.
Appeals and references of questions of law to the FCA
1.25Part 7 would provide for appeals on questions of law and referrals of questions of law to be made to the FCA. The ART Bill would enable a party to a proceeding to appeal to the FCA, on a question of law, from the decision of the ART in the proceeding.
Membership and staffing
1.26Part 8 sets out the structure, membership and staffing of the ART, membership and staff functions, and appointment and termination processes. A key feature of the ART Bill is the introduction of a more transparent and merit-based process for the appointment of ART members. Aside from the appointment of Judicial Deputy Presidents, all member positions would be publicly advertised and subject to a competitive application process.
1.27The ART Bill would also introduce more stringent qualification requirements for members, including that the President must be a judge of the FCA, and Judicial Deputy Presidents must be a judge of the FCA or the Federal Circuit and Family Court of Australia. The ART Bill would also introduce minimum requirements for Non-Judicial Deputy Presidents and senior and general members.
Re-establishment of the ARC
1.28Part 9 re-establishes the ARC, which was previously defunded and discontinued. The ARC's functions would include monitoring the integrity of the Commonwealth administrative review system, inquiring into, and reporting on systemic challenges in administrative law, and supporting education and training for Commonwealth officials in relation to administrative decision making and the administrative law system.
1.29The ARC would comprise the President, the Commonwealth Ombudsman, and the Australian Information Commissioner. The ART Bill prescribes that appointed members would be required to have extensive knowledge of, or experience in, administrative law or public administration.
Notice and information about administrative decisions
1.30Part 10 provides that decision-makers must take reasonable steps to give notice of reviewable decisions to anyone whose interests are affected. This requirement would also apply to some decisions that are related to reviewable decisions. Notices must include notice of any review rights and decision makers must have regard to matters prescribed by the rules.
1.31A person whose interests are affected by a reviewable decision may request the decision maker to give a statement of reasons for the decision. The ART Bill provides that a public interest certificate may be issued in relation to a statement of reasons, where disclosure of specified information would be contrary to the public interest.
Miscellaneous
1.32Part 11 deals with several miscellaneous matters including provisions for granting legal and financial assistance and charging application fees. Theproposed amendment would enable the Attorney-General to grant legal or financial assistance to applicants to the ART if the Attorney-General considers that refusing the assistance application would cause the person hardship, and that providing assistance is reasonable.
1.33The ART Bill would also allow the Minister to make rules about a range of matters, including the cost of application fees.
Consequential Bill No. 1
1.34Consequential Bill No. 1, as referred to the committee, contains 17 schedules and would repeal the AAT Act and provide for the transition of the AAT's operations, caseload, and staff to the proposed new ART. It would also make amendments to 138 Acts consequential on the establishment of the new ART.
1.35Under the proposed changes, the IAA would be abolished and provisions relating to reviews of migration and refugee decisions would be standardised. This would provide 'a broader suite of tools for the efficient and effective resolution of these matters'. At the same time, the ART Bill would preserve special features that are fundamental to the operation of ART review for migration and refugee matters.
Consequential Bill No. 2
1.36Consequential Bill No. 2 has 16 schedules and would make amendments to 110 Acts to update certain references that would interact with the ART Bill, as well as remove the administrative review pathway for preventative detention order decisions and extend external merits review to decisions to refuse to provide a person with a notice as evidence of their Australian citizenship.
Financial implications
1.37The bills as referred to the committee would have the following financial impact:
$21.8 million over two years from 2023–24 to support the interim financial sustainability of the AAT and ensure a smooth transition to the ART;
$30.1 million over five years from 2022–23 to the AAT for development of a new case management system for use by the ART; and
$5.3 million over four years from 2023–24 (and $1.8 million per year ongoing) to support the ARC to monitor and enquire into the Commonwealth administrative review system.
1.38The resourcing impacts of the amendments to the bills (relating to arrangements for second review of social security, child support and family assistance decisions) are being considered in the 2024–25 Budget context.
Consideration by other parliamentary committees
1.39When examining a bill, the committee considers any relevant comments published by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) and the Parliamentary Joint Committee on Human Rights (PJCHR).
1.40The Scrutiny Committee reported on the ART Bill and Consequential Bill 1 in Scrutiny Digest 2 of 2024, and on Consequential Bill 2 in Scrutiny Digest 3 of 2024. Ministerial responses were sought and were published alongside Scrutiny Digest5 of 2024, which also provided commentary on the responses.
1.41The PJCHR reported on the ART Bill and Consequential Bill 1 in its Human Rights Scrutiny Report1of 2024 but did not require a response.
Conduct of the committee's inquiry
1.42The committee advertised the inquiry on its website and invited submissions by 7 March 2024. As part of the inquiry, the committee also considered the comments and recommendations of the HOR Committee's report.
1.43The committee received 26 submissions, which are listed at Appendix1. Thepublic submissions are available on the committee's website, along with additional information and answers received to questions on notice.
1.44The committee held three public hearings in Canberra on 15 March 2024, 26April 2024, and 3 May 2024. A list of the witnesses who appeared at the hearings is at Appendix2.
Acknowledgements
1.45The committee thanks those individuals and organisations who contributed to the inquiry by preparing written submissions and giving evidence at the public hearings.