Dissenting report by Senator Paul Scarr
1.1The reason for the issue of this dissenting report is strong disagreement with respect to the need to abolish the Administrative Appeals Tribunal (AAT), as opposed to implementing reforms through amending existing legislation. The basis for abolition of the AAT is strongly contested. With due respect, there are comments contained in the Majority Report which are not supported by the objective evidence.
1.2This dissenting report provides comments with respect to parliamentary process. It considers statements made in the Majority Report which are highly contested, primarily with respect to the need to abolish the AAT, as opposed to implementing reforms through amendment to existing legislation. The report considers reforms contained in the Administrative Review Tribunal Bill 2024 (ART Bill), the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2024 (Transitional Bill No. 1) and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 2 Bill 2024 (Transitional Bill No. 2) (collectively referred to as the ART bills). There are some reforms contained in the bills which are welcomed. It is hoped that these reforms enhance the vital process of merits review with respect to the thousands of decisions made by Government every day.
1.3Notwithstanding the point of contention with respect to whether there is a need to abolish the AAT, the thought and consideration which has gone into the ART bills is evident.In this regard, the Attorney-General's Department and members of the Administrative Review Expert Advisory Group should be acknowledged and thanked for their contribution. The role of the former High Court Justice, the Hon Patrick Keane AC KC in chairing the Administrative Review Expert Advisory Group is particularly acknowledged.
1.4During the public hearings, representatives of the Attorney-General's Department demonstrated a deep understanding of the ART bills. Answers to questions evidenced detailed consideration of the many issues associated with such a significant reform. It is also noted that the Attorney-General's Department responded positively to abbreviated timelines for the provision of responses to questions on notice. This is greatly appreciated.It has assisted with the preparation of this report.
1.5As has been the case with many bills coming before this committee, the management of the legislative process with respect to the ART bills through the Parliament has been far from best practice. It is important that these shortcomings are documented for the record; especially given the significance of the ART bills and the reforms which they contain (many of which are agreed with).
1.6In relation to the inquiry into the ART Bill and Transitional Bill No. 1 by the House of Representatives Standing Committee on Social Policy and Legal Affairs Committee (HoR Committee), the Majority Report states:
Unusually, this is the second parliamentary inquiry into these bills, with … both the Administrative Review Tribunal Bill 2023 (ART Bill) and Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023 (Consequential Bill No.1) referred to the House of Representatives Standing Committee on Social Policy and Legal Affairs (HoR) Committee) for inquiry in December 2023.As noted in Chapter 1, the HoR Committee recommended that both bills be passed by the House of Representatives.[1]
1.7Hence, the fact that there was a review by a House of Representatives Committee is represented as a positive from a scrutiny perspective. This would be the case if the HoR Committee process was held over an appropriate period of time to enable proper consultation. Unfortunately, this did not occur. The Majority Report fails to respond to (or even mention) the criticisms of the HoR Committee process.
1.8In this regard, the three Coalition members of the HoR Committee stated as follows:
Whilst choosing not to provide dissenting comments to the report, Coalition Members strongly believe that such a large change to Australia’s system of administrative appeals needs an inquiry where stakeholders from across the board are given ample opportunity to express their views.
Unfortunately the Albanese Government has tried to ram this Bill through Parliament with as little scrutiny as possible and has shown that its supposed commitment to transparency is not backed up by its actions.
A short committee process over the Christmas period with only one day of hearings does not allow Parliament to property scrutinise this significant change.
Coalition members are pleased that the Senate’s Legal and Constitutional Affairs Legislation Committee will examine this Bill in greater detail, with a reporting date on 24 July 2024.This is appropriate.
The Coalition will participate in the Senate’s inquiry into this significant legislation and provides its views on this Bill when the process is completed.[2]
1.9With respect to the observations made by the Coalition members of the HoR Committee, the Attorney-General referred the bills to the HoR Committee on 14 December 2023 and the Committee then adopted an inquiry process with submissions to be made by 18 January 2024.[3] Hence, stakeholders were required to make submission over the Christmas/New Year period (albeit that the Law Council of Australia was provided an extension of time to make their submission).
1.10In responding to this abbreviated time for the making of submissions and the timing over the Christmas/New Year holiday period, the Law Council of Australia stated:
On 14 December 2023, following a referral from the Commonwealth Attorney-General, the Committee commenced an inquiry into the Bills, calling for written submissions by 18 January 2024. Whilst the Law Council is pleased to have obtained an extension to 2 February 2024 to lodge its submission, it remains very concerned that the Committee’s truncated inquiry period will undermine or diminish the democratic and proper scrutiny of the Bills ...
The Law Council’s concerns are exacerbated by the sheer level of scrutiny required, given that the Bills comprise more than 550 pages, excluding more than 500 pages of explanatory materials. Additional difficulties have been caused by the inquiry occurring over the summer period, at a time when the legal profession has been, for the most part, unavailable, in addition to the holiday shutdown period for the Law Council Secretariat and each of the Law Council’s Constituent Bodies …
Like the Commonwealth, the Law Council is eager to ensure that the Bills, if enacted, are successful. As a membership-based peak organisation, the Law Council has an obligation to consult with its Constituent Bodies, Sections, and advisory committees on matters of policy. The time constraints for this inquiry have impeded the ability of the Law Council, and the bodies it relies upon for expert guidance and input, to engage at a detailed level with the legislative and explanatory materials. This is especially the case for the complex Consequential Bill, on which the Law Council has only received feedback on Schedule 2 (Home Affairs) to date …[4]
1.11This is not the first time during the term of this Labor Government that the Law Council of Australia has made submissions raising concerns with respect to the abbreviated time for the making of submissions. A similar point was recently made by the Law Council of Australia (and other stakeholders) in relation to the Migration Amendment (Removal and other Measures) Bill 2024.[5]
1.12It is difficult to square the above reality with the comments made by the Attorney-General in a recent article in the Monthly where the Attorney-General stated:
Every member of parliament, regardless of their political persuasion, has a fundamental duty to protect and, where possible, advance the rights and interests of the people we represent.That duty extends to restoring and revitalising the systems of checks and balances that once served Australians so well …[6]
1.13One of the checks and balances that has 'served Australians so well has been the operation of the committee processes in the Parliament. The committee processes engaged in scrutiny of bills provide an opportunity for committee members (and through them, the Commonwealth Parliament) to: (a) consider submissions made by key stakeholders and members of the community, including those who would be most impacted by proposed legislation; (b) explore and interrogate issues of concern; and (c) formulate and propose amendments for the consideration of the Parliament.
1.14When the committee process is working at its best, the result is improved legislation for the benefit of the Australian people—legislation which (to use the words of the Attorney-General) advances 'the rights and interest of the people'.When the process is abbreviated, the outcomes will be sub-optimal.How can it be otherwise?
1.15It is noted that the Senate requested the committee to report by 24 July 2024.However, the full time provided for the committee to conduct its deliberation has not been utilised. In fact, the time has been shortened by over two months.Longer or more frequent public hearings would have provided an opportunity to ask more questions of expert witnesses. In the time available it was impossible to interrogate all the issues in relation to such complicated, lengthy and significant legislation.
1.16In preparing this dissenting report, it is noted that the time between circulation of a draft of the Majority Report and the date for providing comments has been one clear business day.In making this observation, it is noted that a majority of the committee are members of the Government and matters of timing may be the subject of input and guidance from the executive branch.
1.17As has been indicated in the Majority Report, a number of key amendments were made to the ART bills in the House of Representatives.In this regard, it is concerning that the Majority Report states:
While this Chapter refers to key amendments passed by the House of Representatives on 21 March 2024, its content primarily reflects the focus of the committee's inquiry, which was the provisions of the bills as originally referred to the committee.[7]
1.18With all due respect, the focus of the committee's deliberations should be upon the ART bills as amended in the House of Representatives, not upon the ART bills as unamended.Otherwise, the Senate does not have the benefit of a report which considers the ART bills as it will be debated in the Senate.Having made that point, it is acknowledged (as was stated in the Majority Report), that the amendments made in the House of Representatives did address a number of concerns raised through the committee process. This is welcome.
1.19Unfortunately, there were many issues raised during this committee process which have not been substantially considered in the Majority Report.The Majority Report meaningfully engaged with the following issues: (a) the ART appointment process; (b) two-tier review of social security and family assistance; and (c) review process for migration and visa protection processes.[8]These are important issues and warranted the attention given to them in the Majority Report. However, there were many other issues raised by stakeholders which were not considered in detail in the Majority Report. These include the following:
recommendations made by the Law Council of Australia (and supported in some cases by other stakeholders who made submissions) with respect to a range of matters, including: (a) possible exceptions to a default 'no costs' provision; (b) the treatment of 'without prejudice' privilege; (c) the power to remove a person’s representative; (d) the holding of public or private hearings; and (e) reference of the provisions of Part 6 of the ART Bill to the Independent National Security Legislation Monitor;
the application of the Loss of Office Determination 2018 to full-time AAT members who are not reappointed to the ART (a detailed submission in this regard was received from Mr Tony Vernier of Counsel who is acting on behalf of a number of AAT members); and
potential constitutional issues arising from the appointment of a Federal Court Justice as the President of the ART.
1.20All of these issues are worthy of detailed scrutiny. A more complete report would have dealt with these issues raised by stakeholders (including subject matter experts) who made submissions to this inquiry.Many of the issues were the subject of questions on notice put to the Attorney-General's Department.These issues are considered in this dissenting report and recommendations made where considered appropriate.
1.21The rationale for the abolition of the AAT is set out in paragraphs 2.2 to 2.8 of the Majority Report. In outlining the committee view, the Majority Report states:
There was strong support, expressed through both the House of Representatives inquiry, and in this inquiry, for the abolition of the Administrative Appeals Tribunal.The regime had lost the confidence of all stakeholders and the merits review system was badly in need of a complete overhaul.[9]
1.22This reflects the statement made by the Attorney-General in his second reading speech:
…the AAT no longer enjoys the trust and confidence of the Australian community it serves and is not fit for purpose.[10]
1.23These are strong statements—absolutist in tone and quite pejorative in nature.Does the objective evidence support the assertion that: 'the regime had lost the confidence of all stakeholders'? Certainly, the annual report of the AAT indicates otherwise, at least with respect to the views of those who use the AAT and their representatives, perhaps the most important stakeholders of all.
1.24In the annual report for the year ending 30 June 2023, the overall result for user experience with the AAT was a rating of 72 per cent, exceeding the performance target by 2 per cent.The views of representatives was a satisfaction rate of 76 per cent.The views of users was a satisfaction rate of 69 per cent.[11]
1.25With respect to 'fairness'; namely: 'the courtesy and respect shown by members and registrars, the opportunity given to parties to present their case and overall perceptions of the fairness of the review and independence of the AAT', the satisfaction rating of users was 77 per cent and of representatives was 82 per cent.[12]
1.26The above was based on the survey results received from 1 941 parties and 395 legal and other representatives.[13] It is noted that the performance rating of the legal and other representatives is higher than that of other users. Legal and other representatives would have the benefit of more frequent interaction with various members of the AAT and a degree of professional experience to inform their view.
1.27It is impossible to reconcile the above objective evidence with the assertion made in the Majority Report that the: 'regime had lost the confidence of all stakeholders'.If that was the case, why are the satisfaction ratings so high; especially during the last reporting period where there was frequent rhetoric from the Attorney-General and others with respect to the AAT? The objective evidence does not support the assertion made in the Majority Report, nor does it support the statements made by the Attorney-General.
1.28Another important benchmark is the percentage of appeals against AAT and IAA decisions which are allowed by the courts. The AAT describes the importance of this benchmark in the following terms:
This measure is an indicator of the extent to which the AAT and IAA are providing mechanisms of review that are fair and just, and that promote public trust and confidence in decision making.[14]
1.29Against a target of less than 5 per cent, the result for 2022–23 was 2.1 per cent.This compared with a result in 2021–22 of 1.9 per cent. Again, this is evidence which objectively measures the quality of decision making at the AAT. Once again, it does not support the assertions made by the Labor Government.
1.30It is noted that none of the evidence of performance against key performance indicators provided in the annual reports of the AAT is referred to in the Majority Report. This is a serious omission. It evidences a lack of balance in the analysis undertaken in the Majority Report. One can only reasonably assume that it is not referred to because it does not support the argument for the abolition of the AAT.
1.31It is also noted that the Law Council of Australia made it clear in the evidence provided to the inquiry that there was a strong case for reform of the AAT/merits review process; however, the Law Council of Australia never took a position as to whether this required the abolition of the AAT. The following statement from the senior policy manager of the Law Council of Australia evidences the point:
We never took a position as to whether the AAT should be replaced or not, but we certainly respect the government's decision to replace it.[15]
1.32This statement was made at the public hearing held barely over one week ago which again evidences the abbreviated nature of the reporting process.
1.33The statement made by the Law Council of Australia evidencing that they did not take a position with respect to whether the AAT should be replaced or not should be considered together with the observations of Assistant Professor Narelle Bedford who stated:
At the outset, I question whether the AAT needs to be abolished and re-established, as the proposed changes could be implemented by amending the AAT legislation. Notwithstanding these concerns, I will address the specific matters in the Bill to create the ART.[16]
1.34Mr G.A.K. Connolly of counsel also made a submission which is relevant in this regard. Mr Connolly is a senior member of the AAT serving part-time.Mr Connolly served as a Counsel Assisting the 2018–2019 Review of the Commonwealth's Administrative Appeals Tribunal by the Hon IDF Callinan AC QC. In his view:
Since the AAT commenced almost 50 years ago, a now large body of law and practice has built up around the AAT.It would be a grave mistake to recklessly undo all that has been achieved, especially given the flaws identified in the current ART Bill.A mistake of hasty change would undo what amalgamation sought to achieve in the AAT's now many jurisdictions, whose principal laws are already needlessly Byzantine in their complexity for the lay citizen.The AAT has been the one ready means for holding the executive government to account and the new ART structure seems likely to introduce rigidities without reforms.It may be that simply amending the current AAT Act is a more prudent means of achieving whatever changes may be desired to improve Australia’s system of merits review of executive decisions.[17]
1.35It is noted that the Attorney-General has raised the issue of complaints being made against AAT members. In answer to a question on notice asked on 9November 2022, the Attorney-General made the following comment:
Seventeen current members of the tribunal have faced bullying, discrimination or harassment complaints since 1 July 2016, and one of those members has had at least five such complaints made against them.That is completely unacceptable and is yet another problem our government will have to address.[18]
1.36This was an issue that was canvassed during questioning at the public hearing on 26 April 2024.It is noted that there is no material discussion of the matter in the Majority Report.
1.37Given the serious nature of the issue, it is important that evidence received in relation to this issue be incorporated into the report of this committee so that the Senate is provided with the most up to date information.
1.38At the public hearing held on 26 April 2024, the Chair asked questions of Mr Hawkins, the Registrar of the AAT, in relation to complaints made against AAT members:
CHAIR: I just have a couple of questions for you. I have asked the AAT questions of this nature in estimates as well. I've put some questions to the CPSU about staff morale and also just issues around bullying and harassment complaints. I asked you a question on notice about this previously and we were able to establish through the answer that 19 members, including senior members, have had more than one bullying, harassment or discrimination complaint made about them since 1 July 2016 and that one member, a senior member or deputy president, had had more than five bullying, harassment or discrimination complaints made about them since 1 July 2016. The answer to that question on notice steps through all of the different levels, and there is a lot of data involved in it. Since that answer to that question on notice and the more public discussion about the culture of the AAT, what have you been doing to support staff wellbeing and to ensure that they are consulted on the changes that are being proposed by the government?
Mr Hawkins: First of all, I could update you on the status of complaints at the tribunal. There have been 36 complaints against 24 members about bullying, harassment and discrimination since 1 July to 9 February 2024. Of those, there are only two that remain open. All others have been resolved. Twenty-one were resolved by informal resolution, five were resolved by mediation or conciliation and five were resolved by formal investigation. All were unsubstantiated and two were discontinued. Since I've been registrar and certainly since your questions at my first estimates appearance, I have spent quite a bit of time developing new complaint processes for staff and members—
CHAIR: Great.
Mr Hawkins:…so that complaints are properly investigated. I think the fact that we have only that one or two remaining open is a testament to that process…[19]
1.39Following the above exchange, I put further questions on notice to the Registrar of the AAT, Mr Hawkins. The purpose of those questions was to ensure that the Senate has the benefit of an accurate record of the current status with respect to complaints made against AAT members.
1.40In his answers, Mr Hawkins advised as follows:
For the last 2 years (19 April 2022 to 15 September 2023), there have been twelve complaints made with 10 resolved through 'informal resolution', one resolved through 'mediation', and one complaint subject to formal investigation and found to be 'unsubstantiated'; [20]
For the period 1 July 2016 to 26 April 2024, there were 36 complaints made by staff or members about AAT members relating to bullying, harassment and discrimination and of these complaints: 22 were resolved informally, 5 were mediated or conciliated, 5 were investigated formally with none being substantiated, 2 were discontinued and 1 was open; [21]
In relation to the five complaints which were subject to formal investigation, there were two investigations, and both were conducted by a legally qualified investigator (one investigation dealt with four complaints).As detailed above, none of the five complaints the subject of formal investigation by a legally qualified investigator was substantiated.[22]
1.41Hence, as of 6 May 2024 (the date of receipt of the answers to questions on notice from the AAT), from the perspective of the Registrar, there was one outstanding complaint of bullying, harassment and/or discrimination made against a member of the AAT.[23] Accordingly, the AAT's processes have been effective in resolving complaints against members of the AAT.
1.42Based on the above, the case for the abolition of the AAT has not been made out.There are ways in which the administrative review process can be enhanced for the benefit of users. Some of the reform measures contained in the Bills deserve support.The submissions to the committee reflect this.Further, amendments have been made to the ART bills which positively respond to the concerns of stakeholders. However, the evidence does not support the assertion that the AAT has lost 'the confidence of all stakeholders'.
1.43Over the last few years, the AAT has been the subject of speculation as to its future and has been the subject of intense criticism from members of the Labor Government. In this context, the performance of the AAT has been very credible when assessed against key performance indicators.
1.44The committee has heard evidence during the course of the hearing regarding the toll which this process (and the associated speculation and disruption) has taken on members and staff. In providing evidence to the committee on 26April 2024, Registrar Hawkins made the following comments:
In terms of what we've been doing for staff, I can say that, during this period of uncertainty since the Attorney announced the abolition of the tribunal and the commencement of a new tribunal, the president and I have visited all registries on at least two occasions.
We tell staff—and we mean it—that their wellbeing is our highest priority. Certainly, uncertainty can be stressful; we recognise that.
My own observation is that members and staff are probably anxious and excited in equal measure about the opportunities. I think if we were able to put a little bit more certainty around the new tribunal—for example, as to when it might commence—that might assist us with managing the stress of our members and staff …
Nobody respects the parliamentary process more than I do, and I think some of the amendments that we've seen the government bring in are evidence of that parliamentary process at work. My only request, I guess, of this committee and of the parliament itself, is that, if you are minded to bring in the new tribunal, you bring it in as quickly as possible …[24]
1.45These are salutary comments which put in context the impact of major restructures such as proposed in the ART Bills. The process leading up to a restructure is destabilising and stressful.The basis for the abolition of the AAT and its replacement by the ART—the cause of so much destabilisation and stress—has not been made out.
Recommendation 1
1.46The case for abolition of the Administrative Appeals Tribunal and its replacement with the Administrative Review Tribunal has not been made out.Reforms to the merits review process should be made through amendments to existing legislation rather than through abolition of the Administrative Appeals Tribunal.
1.47It is noted that this matter has not been substantially considered in the Majority Report.
1.48The Law Council of Australia and other stakeholders made strong submissions that there should be more flexibility with respect to the awarding of costs by the ART.
1.49The Law Council of Australia recommended that:
The ART Bill should include an express costs provision which clarifies the standard no costs approach undertaken, and then accounts for all potential circumstances, including any deviations from the standard approach.
Consideration should be given to providing an enhanced ability for the Tribunal to award an applicant costs at its discretion, both at first instance and before any guidance and appeal panel, having regard to listed factors. These could be directed towards exceptional circumstances, such as achieving a salutary effect on Government decision-making or recompensing an applicant where an additional lawyer of review through the Guidance and Appeals Tribunal is imposed upon the applicant.[25]
1.50An example of where the ART might award costs against the Government party would be where the party has 'departed significantly from its model litigant obligations'.[26] Further, the Law Council of Australia noted that similar provisions had been adopted in a number of state jurisdictions.[27] In considering further, it is noted that the relevant Queensland legislation has provisions which would enable the award of costs in a merits review case.[28]
1.51Another reason supporting the giving of discretion to the ART to award costs is the establishment of the Guidance and Appeals Panel. In this regard, the Law Council of Australia made the following point:
Where an applicant applies to the President, pursuant to clause 123, to refer a decision of the Tribunal to the (guidance and appeals panel), that applicant has a choice as to whether to initiate such process, and is likely to be cognisant that the Tribunal operates on a no-costs basis by default.
By contrast, there are likely to circumstances where an applicant succeeds at first instance, but the respondent agency applies to the President under clause 123 to refer a decision to the guidance and appeals tribunal. Should that referral proceed, the applicant will be required to invest time, effort and expense in defending their application for review, with no recourse to costs to compensate the applicant for having done so.This is not consistent with the Tribunal’s stated objectives—as provided in clause 9 of the ART Bill—in that:
it makes the Tribunal less accessible and responsive to the needs of applicants by, potentially, making the defence of some decisions uneconomical;
it does not improve the transparency and quality of government decision making, in that it may potentially discourage persons adversely affected by a decision from using the Tribunal as a forum for review; and
it is not fair and just that an ultimately successful applicant, who may be of modest means – particularly when compared with resources available to Commonwealth agencies – be required to bear the costs of litigation twice.[29]
1.52In response to the arguments made by the Law Council of Australia and other stakeholders, the Attorney General's Department responded as follows during questioning in relation to the issue at the public hearing held on 15 March 2024:
Senator SCARR:
We touched upon costs in the dimension of the guidance and appeals panel. A number of the stakeholders, including the Law Council of Australia, had put forward the proposition that it would assist in the objectives of the bill if, in particular circumstances, the tribunal had the power to award costs particularly against Commonwealth respondents where there has been serious wrongdoing or delinquency in decision-making or some sort of egregious misconduct, however that's defined.
I think the justification of that's been provided on two bases. Firstly, that it would send a salutary message to relevant Commonwealth agencies. It might only be exercised on a rare basis, it would still be quite powerful. Secondly, there is a reasonable case that in certain circumstances, where applicants have been put through the cost and time et cetera of having to navigate through the merits review process, if it is as a direct result of egregious misconduct on the behalf of a federal government entity or department, that there should be compensation for that. How do you respond to those submissions?
Ms Virtue:
The issue of costs is one that we also considered as a possible consequence. The tribunal is, as has been acknowledged, broadly a cost-free forum. There are some small exceptions to that. Where costs can be issued, they're generally in matters that are quite contested. There is no real existing power to order costs as a punitive function for behaviour of respondents, so we would have to build that from scratch. Our concern with adding a dimension around costs against respondents is that it would increase the formality of proceedings. If that were introduced as a consideration it could potentially make matters more adversarial. Also, where would you set the benchmarks and the frameworks for what type of behaviour would be subject to costs? It would potentially add a complexity to proceedings that wouldn't necessarily be proportionate to the gain…
So I think there are a range of other tools that are either provided in the bill or can be explored through implementation that would potentially better address the concern without adding the sort of complexities I've described. In particular, we're very mindful that the tribunal is not a court and costs are a court-like power. We have been conscious in the bill to keep the tribunal a tribunal and not make it more court-like and adversarial…
In relation to this issue of costs—if you move away from costs acting as a punitive measure and really be compensatory—whilst I deeply respect, and agree with, your observations around it being a tribunal and, typically, being a no-cost jurisdiction, the reality seems to be that in certain situations an applicant will be faced with a respondent who has lawyered up with barristers, potentially, counsel, lawyers et cetera. And as a matter of fairness, you are dealing with applicants who do not have anywhere near the same resources. There's an asymmetry in terms of the resources available to the applicant as opposed to the respondent, being a Commonwealth department. Can you see how that, in a tribunal context, can lead to a weighing of the scales against applicants? Notwithstanding that it's a tribunal, it still has a material impact on peoples' lives.
Yes, I definitely note the concern and perhaps I would add that, in the issues paper and our public consultation, we discussed whether there should be a leave requirement to appear with representation before the tribunal. That exists in some of the state civil and administrative tribunals. I think including in our discussions with those tribunals, it's an issue that everyone struggles with.
Where do you strike the balance between access to legal representation for parties and then, potentially, having to deal with an playing field that's not level where one party is represented and the other is not? We ultimately took the view in the bill—which was informed by the submissions we received on that issue—that a leave requirement would be too limiting for applicants who really need that representation and that we should rather provide the tribunal with particular, very clear powers to manage their own procedure to address the conduct of representatives if they're not complying with directions. I also failed to mention in my earlier answer that the tribunal now also has a clear power to remove a representative in certain circumstances. I think it is a big concern and a significant issue across the board. We've attempted to address it in various ways within the bill …[30]
1.53The Public Interest Advocacy Centre made a strong submission that the ART Bill should provide the power for the Tribunal to award costs.In its submission to this inquiry, the Public Interest advocacy Centre directly responded to a number of the arguments raised by the Attorney-General’s Department and advised (given the strength of the rebuttal, the points are repeated in this report):
First, AGD stated, 'costs are generally not consistent with the nature of merits review'. We respectfully disagree with this statement.Whilst some forms of merit review do not involve adverse costs orders, others do.Some merits review matters before the current AAT may result in adverse costs orders in matters they hear, including merits review cases.We see no inconsistency, in form or in practice, between merits review proceedings and the potential for costs to be ordered in exceptional cases.
Second, AGD stated, 'there is a risk that [the power of the ART to award costs] could make the review process more adversarial …'. We disagree that this would result from a costs power that would apply only in rare cases such as where the respondent has behaved inappropriately.If anything, we consider it should result in less adversarial ART proceedings as the risk of adverse costs consequences should discourage respondents from unnecessarily combative conduct.This has been PIAC's experience acting in the NSW Civil and Administrative Tribunal, where relevant costs provisions exist.
Third, AGD stated that adverse costs orders '…could be difficult to enforce in a tribunal setting.Leaving aside the question of whether appropriate enforcement mechanisms could be developed, the question of enforcement powers would only arise in circumstances where the ART ordered a government respondent to pay costs, and the respondent refused to comply with that order unless forced.This would be an extraordinary position for a government agency to take, and arguably inconsistent with its model litigant obligations …[31]
1.54Whilst noting the Attorney-General's Department has considered the matter in such depth, there remains strong arguments in favour of providing the ART with the discretion to award costs. This is particularly so given the significant difference in resources between applicants and the respondents and the obligation upon respondents to comply with the model litigant rules. Further, if costs can be awarded in state-based merits review tribunals in certain circumstances, why shouldn't the same principle apply at a Commonwealth Government level? The added complication of an applicant's matter being referred to the Guidance and Appeals Panel upon the application of the respondent is a further matter which needs to be considered. An applicant should not have to bear the cost of their matter providing guidance which will be of benefit to the larger community. There is substantial merit in the arguments put forward by the Law Council of Australia and the recommendation should be adopted.
Recommendation 2
1.55As is the case in various state-based merits review tribunals, the ART bills should provide discretion for the Administrative Review Tribunal to award costs to the applicant in exceptional circumstances.
1.56It is noted that this issue has not been dealt with in any detail in the Majority Report.
1.57Clause 30 of the ART Bill provides that the documents required to be given by the decision maker must be given regardless of legal professional privilege, without prejudice privilege or public. The Law Council of Australia observes that the clauses: 'appears to reflect the current settings in the AAT Act, although it is differently worded'.[32]
1.58In commenting the inclusion of documents which are subject to 'without prejudice' privilege, the Law Council of Australia states:
… the Law Council of Australia is concerned that clause 30, as drafted, may have the unintended consequence of limiting the capacity and/or willingness of parties to engage in frank discussions, and, in turn, could minimise the potential for early and cost-efficient resolution of disputes.
Noting that the Explanatory Memorandum does not elaborate on the reason that this inclusion is needed, the Law Council recommends that the Committee seek clarification from the AGD regarding the policy rationale for including the 'without prejudice' privilege in clause 30, and consider whether that rationale is consistent with the objects of the Bill.If it is not consistent, the 'without prejudice' privilege should be removed from clause 30. [33]
1.59In responding to the concerns raised by the Law Council of Australia—in clarifying the reasons for the inclusion of 'without prejudice' communications, the Attorney-General's Department responded as follows:
The Tribunal's objective (set out in clause 9) is to provide a mechanism of review that (amongst other things) is fair and just, improves the transparency and quality of government decision-making and promotes public trust and confidence in the Tribunal. Clause 30 supports these elements of the objective by ensuring the Tribunal has access to the same materials that the original decision-maker and freshly consider all of the relevant facts, law and policy aspects of the original decision. It also improves the transparency of government decision making by supporting full disclosure of materials, which in turn promotes public trust in both the Tribunal and the decision-making (and review process).[34]
1.60With respect to the concern of the Law Council of Australia that including without prejudice material may act as a disincentive for parties to seek to settle matters, the Attorney-General's Department responded as follows:
Clause 30 does not prevent or disincentivise, parties from negotiating settlements after an application has been made to the Tribunal. Clause 30 only applies to the initial production of documents to the Tribunal … Clause 30 does not apply to documents obtained by the decision-maker after the review has commenced.[35]
1.61The Attorney-General's Department also refers to the power of the decision-maker to seek non-disclosure of publication orders under clause 70.[36]
1.62With all due respect, the response from the Attorney-General's Department does not deal with the other dimension of the issue; namely, parties being unwilling to engage in without prejudice discussions at the initial decision-making stage because documents will be produced for the purposes of merits review by the ART, subject to any non-disclosure order being made.
1.63It is an issue which is worthy of exploring further. This would require greater evidence with respect to what is happening in practice, including any observations that could be made with respect to decision making by the AAT.
Recommendation 3
1.64Consideration be given to removing 'without prejudice' privilege from clause30 because the obligation to produce documents subject to such privilege may act as a deterrent to the resolution of matters through without prejudice negotiations.
1.65This is a matter which has not been dealt with in detail in the Majority Report.However, it is significant.An applicant being denied their representative of choice could have a material impact on their case.
1.66It is noted that the Law Council of Australia raised concerns with respect to the power of the Tribunal to remove a person's representative in certain circumstances, including where there is a conflict of interest or 'the representative is not acting in the best interests of the person'.Given the significance of such a step, the Law Council of Australia submitted that:
Clause 66(3) should provide greater specificity as to how the Tribunal is required to undertake such a process (including, for example, providing the representative with adverse information and an opportunity to respond, prior to a Tribunal decision to remove them).[37]
1.67In response to a question on notice requesting the Attorney-General's Department to respond to the issue, the following response was provided by the Department:
Recognising the significance of this power, the ART Bill contains a number of safeguards—augmented by existing obligations in relation to procedural fairness—which will govern the exercise of the power.
The Tribunal is under a general duty to provide for procedural fairness to all parties, whether they are represented or not. This sits alongside the specific duties imposed on the Tribunal, which reflect particular elements of procedural fairness, including the fair hearing principle reflected in clause 55 of the ART Bill. The Tribunal is required to exercise procedural fairness when exercising powers under subclause 66(3) (which could include providing the representative with adverse information and an opportunity to respond). More specific guidance for Tribunal members could be provided for in the Tribunal’s Practice Directions (made under clause 36).[38]
1.68Given time limitations, it has not been possible to obtain a view from the Law Council of Australia with respect to the Attorney-General's Department response. However, it is noted that it is equivocal with respect to whether the representative would be provided with adverse information or an opportunity to respond. This was the key concern raised by the Law Council of Australia.To some extent, the equivocal nature of the response of the Attorney-General's Department underlines the point made by the Law Council of Australia. To deprive an applicant of their representative is a major event. Clause 66(3) should provide for procedural fairness, including the right of a representative to receive adverse information and to have an opportunity to respond.
Recommendation 4
1.69Clause 66(3) be amended to provide for procedural fairness, including a right for a representative to be provided with adverse information and to respond prior to the Administrative Review Tribunal making an order to remove them.
1.70This is a matter which has not been dealt with in the Majority Report.
1.71The Law Council of Australia raised the issue with respect to the power of the ART to hold a hearing in private, or for the non-publication or non-disclosure of certain information. In this regard, as paragraph 568 of the Explanatory Memorandum states (in relation to subclause 71(2)(d)(ii)):
Subclause (2) requires the Tribunal to balance the principles of open justice and procedural fairness with the circumstances of the parties or any person connected to the proceeding, the harm that could result to a person if an order is not made, the need to keep information confidential and any other relevant considerations.
1.72Whilst agreeing in-principle, the Law Council of Australia commented as follows:
However, the concept of harm remains somewhat open-ended: for instance, it is uncertain whether it includes harm to an entitlement or right, mental harm, or some other form of 'harm'.[39]
1.73The Law Council of Australia suggests that clause 71(2)(d)(ii) be redrafted to specify the kinds of harm to be considered so that it is clear and easier to understand for applicants to the ART.
1.74In response to a question on notice, the Attorney-General's Department responded to the concern of the Law Council of Australia as follows:
As set out in paragraph 568 of the revised explanatory memorandum to the ART Bill, this clause requires the Tribunal to balance the principles of open justice and procedural fairness with the circumstances of the person in each case.Depending on the individual's circumstances, harm could take many forms and it is ultimately for the Tribunal to exercise their discretion to address the unique circumstances of each individual.
The Parliament cannot envisage or predict all types of that may result to a person in unforeseeable circumstances.There is a risk of limiting the Tribunal’s ability to consider types of harm that were not envisaged when legislation was developed.[40]
1.75This is a matter which requires balancing of competing factors: the principle of open justice, on the one hand, and procedural fairness to individuals who may suffer harm as a result of inappropriate disclosures. Whilst the Attorney‑General's Department is correct that there is a risk in limiting the scope of 'harm' through inappropriately narrow definitions in the ART Bill, there is the competing argument (perhaps a corollary of the first) that there is also a risk of individual ART members agreeing to non-publication or non-disclosure not anticipated by the legislature.This could be addressed by providing further guidance in the ART Bill as recommended by the Law Council of Australia.
Recommendation 5
1.76That clause 71(2)(d)(ii) should be redrafted to specify the type of harm to a person that is relevant to the Administrative Review Tribunal's consideration of whether to hold a hearing in private, or for the non-publication or non-disclosure of certain information.
1.77Part 6 of the ART Bill addresses proceedings in the Intelligence and Security jurisdictional area. The Law Council of Australia made substantial submissions in this regard. As detailed by the Law Council of Australia, there are substantial departures from the usual procedure of the ART in relation to intelligence and security decisions.[41] A particular issue is the impact on procedural fairness of a party and their representative not having access to evidence or reasons for decisions due to security issues.
1.78The Law Council of Australia made the following comments:
In the context of the current ART Bill, while acknowledging that its provisions are largely in line with existing approaches under the AAT Act and other legislation, the Law Council suggests that it would be beneficial for the current (fifth) [Independent National Security Legislation Monitor (INSLM)] to review whether Part 6 of the Bill and related provisions concerning the approach adopted in the Tribunal to matters of intelligence and security are likely to operate fairly and appropriately in practice. In this context, the Law Council underlines that 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 ...
The Law Council further underlines that several decisions which will arise before the Tribunal’s Intelligence and Security jurisdiction area for review will have particularly serious consequences for the individual—such as preventative detention decisions and security assessments—and warrant careful scrutiny in this regard.
Given this, the Law Council recommends that Part 6 and related provisions, should be referred to the current INSLM for a dedicated review, to ensure that an appropriate balance is struck between national security, fairness and transparency objectives. It understands that this review would need to occur after passage of this Bill. [42]
1.79Issues in relation to Part 6 of the ART Bill were also raised by the Australian Bar Association (ABA).In their submission, the ABA states:
No doubt there is a balance to be drawn between the interests of national security and the interests of the individual. But legislatures in comparable jurisdictions, grappling with similar problems, have developed novel procedures to better protect the fairness of the procedure…Those procedures include the use of special advocates (independent security-cleared counsel who have access to the sensitive information and make independent submissions on it) and providing, as far as is possible, the 'gist' of the material in a way that does not disclose its more sensitive substance …[43]
1.80The ABA then recommends that consideration be given to the adoption of procedures which may alleviate the procedural unfairness, including at the stage of review of ART decisions within the ART or by the Federal Court.[44]
1.81In response to the recommendation made by the Law Council of Australia that Part 6 be referred to the INSLM, the Attorney General's Department in response to a question on notice stated:
Whether to refer particular matters to the INSLM is a matter for the Government …
The functions of the Administrative Review Council include monitoring the integrity of the Commonwealth administrative review system, and inquiring into and reporting on systemic challenges in administrative law … It is anticipated that in undertaking such reviews, from time to time and as required, the Council could monitor and inquire into the processes outlined in Part 6 of the ART Bill, and related matters, as a component of Australia’s federal administrative review system.[45]
1.82This is a significant issue. It does involve a balancing of the national security concerns and the interests of the individual. Whilst noting the Attorney‑General's Department reference to the powers of the Administrative Review Council, given the nature of the issue, the matter should be referred to the INSLM by the Labor Government.As noted by the Law Council of Australia, this does not prevent the ART Bill from being passed. It is noted that the second limb of the Law Council of Australia's recommendation is that the review to be conducted by the INSLM 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.
Recommendation 6
1.83Part 6 of the ART Bill and related provisions should be referred by the Government to the INSLM for review, to ensure that an appropriate balance is struck between national security, fairness and transparency objectives.
1.84Mr G.A.F. Connolly of counsel raised serious concerns in relation to the constitutionality of the proposed ART.His submission states:
With this in mind, it is important to note, again, that this Tribunal operates as an executive body under Chapter II of the Constitution – and is not a Court which operates under Chapter III of the Constitution…There was an ongoing problem with the AAT that carries over to the new ART, which is that the President of these Chapter II bodies must be a Chapter III judge: see AAT Act s.7(1) and the new ART Bill s.205(3)….The constitutional problems raised by a requirement that a tribunal president be a serving judge should be plainly obvious …[46]
1.85Mr Connolly then provides a number of examples which, in his view, demonstrate a conflict between Chapter II and Chapter III of the Constitution with respect to the duties of the President of the ART. [47]
1.86Mr Connolly then concludes:
The President of the AAT/ART holds the most critical office in Australia's system of federal executive tribunals.The President should, perhaps, be a retired judge or even an eminent former member of the tribunal, of which there have been many—or perhaps someone whose eminence was earned in another field. However, the constitutional incongruity of having Chapter III judges preside over a critical Chapter II tribunal should be ended, for the good of both the executive government and the courts.Australia’s written and entrenched federal constitution has, for 123 years, separated the executive branch from the judicial branch of the national government which the Constitution establishes. We should, in reforming old or introducing new tribunals, respect the crucial constitutional demarcation between the executive officers of Chapter II and Chapter III.[48]
1.87In response to a question on notice from Senator Shoebridge on the question of the constitutional validity of appointing a Chapter III judge to the position of President of the ART, the Attorney-General's Department advised:
Throughout the course of policy development and drafting, the Department obtained extensive legal advice on a range of matters within the Bills, including the functions of the President, in the context that the President would also be a Federal Court Judge.
Subclause 205(3) of the ART Bill provides that a person appointed to the position of President must be a Judge of the Federal Court of Australia.This provision is equivalent to existing section 7 of the AAT Act.The Explanatory Memorandum notes at paragraph 1319 that a judicial President reinforces the independence of the Tribunal from government in that it entrenches its impartiality, notwithstanding its existence within the executive branch.
In addition to obtaining relevant legal advice, the department consulted extensively with the Expert Advisory Group, chaired by the Hon. Patrick Keane AC KC and including eminent constitutional law experts, throughout development and drafting of the Bill, and consulted numerous experts during the public consultation process.No concerns were raised with the department in relation to the constitutional validity of the Bill.[49]
1.88In all the circumstances, it is not practical to provide a firm view with respect to the issue.Mr Connolly raises material issues which warrant closer examination.The Attorney-General's Department are firmly of the view that if there were a constitutional issue, then it would have been identified during its legislative processes; especially considering the eminence of the Expert Advisory Group. Further, the Attorney-General's Department argues that there is merit in having a Chapter III judge as a President because it reinforces the independence of the AAT. In all the circumstances, no recommendation is made with respect to this issue.
1.89The process whereby current members of the AAT may seek appointment to the ART requires some consideration.
1.90This issue must be considered through the prism of the Attorney-General's comments with respect to the rationale for abolition of the AAT. In a media statement announcing the abolition of the AAT, the Attorney-General stated:
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.[50]
1.91The particularity with respect to which the cohort is identified—as many as 85—raises the question as to whether members of that cohort will be fairly treated through the application process whereby they seek appointment to the ART.Given the predisposition of the Attorney-General as evidenced by his remarks, the importance of the independence of the appointment process is elevated.
1.92Through the course of the inquiry, significant additional information was obtained with respect to the current appointment process.This includes the following:
the form of workload report and reference prepared by the AAT for consideration as part of the application process;
the form of referee report, including the relevant election criteria; namely: (a) ability to conduct hearings and other tribunal proceedings; (b) decision making and reasoning; (c) writing and communication skills; (d) independence, integrity and collegiality; (e) productivity, diligence and resilience; (f) an understanding of, and a commitment to, safe and respectful workplaces; and
the composition of selection panels.
1.93All members of the AAT who seek reappointment to the ART should have their applications considered on the merits in accordance with relevant selection criteria.The process should be fair and transparent.The material provided to the committee during the course of this inquiry is relevant and appears to be fit for purpose. Further, there are eminent members of the selection panels of considerable standing, including eminent retired judges. Their recommendations should be considered in good faith.If the ART Bills are passed, the treatment of the existing members of the AAT who apply to serve on the ART will be an important first test of the integrity of the new system.
1.94The issue of termination payments to members of the AAT who are not reappointed to the ART was not substantially considered in the Majority Report, although there is a minor reference to submissions that were made on the subject.[51]
1.95A submission was received from Mr Tony Vernier of counsel was made on behalf of eight full time members of the AAT. The fundamental issue is the compensation to be paid to full time AAT members who are not appointed to the ART. The Remuneration Tribunal has issued a determination for compensation for loss of office for holders of certain public offices. It provides for compensation of between four months to 12 months depending upon the remaining period of appointment. If the period of appointment has three or more years to run, the compensation is 12 months. This is the maximum. If the period of appointment is 12 months or less, then the compensation payable is four months' salary. The compensation is scaled proportionately between those two points (the compensation payable is calculated on the basis of one-third of one month of reference salary for each month of service remaining in the term of the office holder's appointment).
1.96Under Part 7 of Schedule 16 of the Transitional Bill No. 1, the maximum amount of compensation that may be paid for loss of office to a full time AAT member who is not appointed to the ART is four months compensation, eight months less that the determination by the Remuneration Tribunal.
1.97The explanatory memorandum states:
This arrangement ensures that the compensation payments are fair and reasonable but not excessive.It is in substitution of any compensation that would otherwise be payable to the person as a result of them losing their office as an AAT member.Subitem 32(3) makes it clear that no other compensation is payable by the Commonwealth in relation to the person’s appointment as a member of the AAT.To avoid doubt, subitem 32(4)(a) clarifies that the Remuneration Tribunal (Compensation for Loss of Office for Holders of Certain Public Offices) Determination 2018 does not apply in relation to the person’s appointment …[52]
1.98In commenting on this explanation in the Explanatory Memorandum, Mr Vernier asks a number of questions:
(a)If the arrangement of a maximum of four months' salary as compensation for loss of office is fair and reasonable, is the Federal Government suggesting that the Loss of Office Determination 2018 is not fair and reasonable?
(b)Why then is the Loss of Office Determination 2018 still in full force and effect for other holders of Public Offices?
(c)What will be the situation of office holders in other Tribunals to which the Loss of Office Determination 2018 applies should they lose their office?[53]
1.99These are good questions. The Loss of Office Determination 2018 was determined by the independent Remuneration Tribunal. The three experts comprising the Remuneration Tribunal is each an expert in matters relating to commerce, law, and governance. They are entirely independent of Government.Why shouldn't their determination be viewed as 'fair and reasonable'?If it is not 'fair and reasonable' in this case, why would it be 'fair and reasonable' in other cases? Further, what benchmarking has the Labor Government performed to determine what is 'fair and reasonable'? No answers have been provided to these questions.
1.100In response to a question on notice with respect to whether there is any precedent of the Loss of Office Determination 2018 not being followed, the Attorney-General's Department advised:
The department is not aware of any similar case where a Commonwealth entity with a very substantial number of statutory office holders has been abolished and replaced, with office holders able to be appointed to the new entity if found suitable through a merit-based assessment process.There are no applicable situations with which to make a direct comparison.[54]
1.101With respect to the Attorney-General's Department, they did not specifically address the question asked. The question was not to seek any points of distinction between this case and a prior case, but rather to ascertain if there was any precedent where the Loss of Office Determination 2018 was not followed.If the Attorney-General's Department did not know the answer to the question, then they could have advised to that effect.
1.102Mr Vernier's submission also refers to:
the impact with respect to superannuation benefits, particularly the impact on AAT members under the defined benefits scheme if they are not able to complete their full term;
concerns raised by the Parliamentary Joint Committee on Human Rights; and
the reference to additional compensation being payable in the event that the operation of the relevant provisions would constitute an acquisition of property from a person on other than just terms in breach of paragraph 51(xxxi) of the Constitution.
1.103In relation to the constitutional issue, in response to a question on notice as to whether the Attorney-General's Department received advice from the Solicitor‑General with respect to the constitutional issues, the Attorney‑General's Department provided a non-responsive answer; namely:
Throughout the course of policy development and drafting, the department obtained extensive legal advice on a range of matters within the Bill.[55]
1.104As is the case with respect to the application process for current members of the AAT to apply to become members of the ART, this issue must also be considered through the prism of the Attorney-General's comments with respect to the rationale for abolition of the AAT. As discussed earlier in this dissenting report, in a media statement announcing the abolition of the AAT, the Attorney-General stated:
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.[56]
1.105Hence, the Attorney-General has made comments attacking a particular cohort of appointees to the AAT. The fact that the Attorney-General nominated a specific number of appointees indicates a degree of precision with respect to definition of the particular cohort which underlines the seriousness of the statement.
1.106In relation to this issue, Assistant Professor Narelle Bedford referred to the broader policy issues at stake:
I note that there is an existing determination of the Remuneration Tribunal which applies to all statutory office holders … For the integrity and independence of all statutory office holders, not just tribunal members, this determination must be adhered to. Any purported attempt to reduce the payment period must be resisted for the sake of the stability of the entire system of statutory office holders.There has been media speculation that the period of payment for non-reappointed AAT members may be reduced to 4 months. This is bad public policy.[57]
1.107The purpose of having an independent tribunal such as the Remuneration Tribunal to make determinations with respect to remuneration for office holders is to take the politics out of the issue. The purpose is to avoid Parliamentarians having to make decisions as to what is fair and reasonable remuneration for public office holders. Better that the determination be left to experts who are entirely independent from Parliament.
1.108In the current case, where pejorative remarks have been made by the Attorney-General against a cohort of office holders (with the number defined by precision) it is even more important the determination by the independent authority should stand. It is an unseemly, unworthy, and unnecessary departure from best practice which does not reflect well on the transition process. As Assistant Professor Narelle Bedford said: 'This is bad public policy'.[58]
Recommendation 7
1.109As a matter of good public policy, any compensation for loss of office should be calculated in accordance with the determination of the independent Remuneration Tribunal. That principle should apply with respect to all offices, including any compensation for loss of office which is required to be paid under the ART Bills.
Senator Paul Scarr
Deputy Chair
Footnotes
[1]Refer to paragraph 2.1 of the Majority Report.
[2]House of Representatives Standing Committee on Social Policy and Legal Affairs, Inquiry into the Administrative Review Tribunal Bill 2023, Final Report, February 2024, p. 73.
[3]House of Representatives Standing Committee on Social Policy and Legal Affairs, Inquiry into the Administrative Review Tribunal Bill 2023.
[4]Law Council of Australia, Submission 28 to the House of Representatives Standing Committee of Social Policy and Legal Affairs Inquiry into the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023, pp. 11–12.
[5]Legal and Constitutional Affairs Legislation Committee, Senate inquiry, Migration Amendment (Removal and Other Measures) Bill 2024, May 2024 www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/MigrationAmendment24/Report.
[6]Mark Dreyfus, 'After Robodebt: Restoring Trust in Government, Integrity, and the Law' (February 2024) The Monthly, www.themonthly.com.au/issue/2024/february/mark-dreyfus/after-robodebt-restoring-trust-government-integrity-and#mtr.
[7]See paragraph 1.4 of the Majority Report.
[8]See paragraph 2.25 of the Majority Report.
[9]See paragraphs 2.2 to 2.8 of the Majority Report.
[10]The Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 7 December 2023, p. 9198.
[11]Administrative Appeals Tribunal, Annual Report 2022–23, 25 September 2023, p.25.
[12]Administrative Appeals Tribunal, Annual Report 2022–23, 25 September 2023, p. 24.
[13]Administrative Appeals Tribunal, Annual Report 2022–23, 25 September 2023, p. 24.
[14]Administrative Appeals Tribunal, Annual Report 2022–23, 25 September 2023, p. 25.
[15]Ms Leonie Campbell, General Manager, Policy, Law Council of Australia, Proof Committee Hansard, 3 May 2024, p. 2.
[16]Assistant Professor Narelle Bedford, Submission 13, p. 3.
[17]Mr G.A.K. Connolly of Counsel, Submission 16, pp. 10–11.
[18]House of Representatives, Questions without notice, The Hon Mark Dreyfus KC, Hansard Transcript, 8 November 2022.
[19]Proof CommitteeHansard, 26 April 2024, p. 25.
[20]Administrative Appeals Tribunal, Answers to spoken questions on notice, 26 April 2024 (received 6 May 2024), Questions 1–4 from Senator Scarr.
[21]Administrative Appeals Tribunal, Answers to spoken questions on notice, 26 April 2024 (received 6 May 2024), Questions 1–4 from Senator Scarr.
[22]Administrative Appeals Tribunal, Answers to spoken questions on notice, 26 April 2024 (received 6 May 2024), Questions 1–4 from Senator Scarr.
[23]Administrative Appeals Tribunal, Answers to spoken questions on notice, 26 April 2024 (received 6 May 2024), Questions 1–4 from Senator Scarr.
[24]ProofCommittee Hansard, 26 April 2024, p. 25.
[25]Law Council of Australia, Submission 28 to the House of Representatives Standing Committee of Social Policy and Legal Affairs Inquiry into the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023, p. 19.
[26]Law Council of Australia, Submission 28 to the House of Representatives Standing Committee of Social Policy and Legal Affairs Inquiry into the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023, p. 18.
[27]Refer to footnote 11 on page 18 of LCA submission which refers to South Australian Civil and Administrative Tribunal Act 2013 (SA) s 57 and the Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 109.
[28]Refer to Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102.
[29]Law Council of Australia, Submission 28 to the House of Representatives Standing Committee of Social Policy and Legal Affairs Inquiry into the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023, pp. 17—18.
[30]Proof Committee Hansard, 15 March 2024, pp. 34–35.
[31]Public Interest Advocacy Centre, Submission 10, p. 2.
[32]Law Council of Australia, Submission 28 to the House of Representatives Standing Committee of Social Policy and Legal Affairs Inquiry into the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023, p. 20.
[33]Law Council of Australia, Submission 28 to the House of Representatives Standing Committee of Social Policy and Legal Affairs Inquiry into the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023, pp. 20–21.
[34]Attorney-General's Department, Answers to questions on notice from Senator Scarr, 26 April 2024 (received 7 May 2024), pp. 4–5.
[35]Attorney-General's Department, Answers to questions on notice from Senator Scarr, 26 April 2024 (received 7 May 2024), p. 5.
[36]Attorney-General's Department, Answers to questions on notice from Senator Scarr, 26 April 2024 (received 7 May 2024), p. 5.
[37]Law Council of Australia, Submission 28 to the House of Representatives Standing Committee of Social Policy and Legal Affairs Inquiry into the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023, pp. 22–23.
[38]Attorney-General's Department, Answers to questions on notice from Senator Scarr, 26 April 2024 (received 7 May 2024).
[39]Law Council of Australia, Submission 28 to the House of Representatives Standing Committee of Social Policy and Legal Affairs Inquiry into the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023, p. 24.
[40]Attorney-General's Department, Answers to questions on notice from Senator Scarr, 26 April 2024 (received 7 May 2024).
[41]Law Council of Australia, Submission 28 to the House of Representatives Standing Committee of Social Policy and Legal Affairs Inquiry into the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023, pp. 29–30.
[42]Law Council of Australia, Submission 28 to the House of Representatives Standing Committee of Social Policy and Legal Affairs Inquiry into the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023, pp. 33.
[43]Australian Bar Association, Submission 25, p. 7.
[44]Australia Bar Association, Submission 25, p. 7.
[45]Attorney-General's Department, Answers to questions on notice from Senator Scarr, 26 April 2024 (received 7 May 2024) p. 6.
[46]Mr G.A.F.Connolly, Submission 16, p. 6.
[47]Mr G.A.F.Connolly, Submission 16, pp. 6–7.
[48]Mr G.A.F.Connolly, Submission 16, pp. 6–7.
[49]Attorney-General's Department, Answers to spoken questions on notice, 26 April 2024 (received 7 May 2024).
[50]The Hon Mark Dreyfus MP KC, Media Release, 'Albanese government to abolish Administrative Review Tribunal', Media release, 16 December 2022.
[51]Refer to paragraph 2.41 of the Majority Report and footnote 57 referred to therein.
[52]Revised Explanatory Memorandum for the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2024, para. 1580, p. 235.
[53]Mr Tony Vernier (on behalf of eight AAT Members), Submission 23, p. 4.
[54]Attorney-General's Department, Answers to questions on notice from Senator Scarr, 26 April 2024 (received 7 May 2024) p. 3.
[55]Attorney-General's Department, Answers to questions on notice from Senator Scarr, 26 April 2024 (received 7 May 2024).
[56]The Hon Mark Dreyfus MP KC, Media Release, 'Albanese government to abolish Administrative Review Tribunal', Media release, 16 December 2022.
[57]Assistant Professor Narelle Bedford, Submission 18, pp. 6–7.
[58]Assistant Professor Narelle Bedford, Submission 18, p. 7.
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