- Introduction
- On 16 December 2022, the Government announced it would abolish the Administrative Appeals Tribunal (AAT) and replace it with an administrative review body that better serves the interests of the Australian community.
- Public consultation on the design of the new Administrative Review Tribunal (ART) was conducted in April and May 2023. Guidance was sought from the Administrative Review Expert Advisory Group, chaired by former High Court Justice, theHonPatrick Keane AC KC and there was engagement across government and with the AAT. Targeted consultation on draft legislation was conducted in September and October 2023.
- On 7 December 2023, the Government introduced two bills to Parliament:
- the Administrative Review Tribunal Bill 2023 (ART Bill), which would establish the ART and re-establish the Administrative Review Council (ARC)
- the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023 (Consequential Bill), which would abolish the AAT, make amendments to a range of Commonwealth acts and enable the transition of AAT staff, operations and matters to the ART.
Scope and conduct of inquiry
1.4On 14 December 2023, the Committee adopted an inquiry into the ART Bill and theConsequential Bill, following a referral from the Attorney General, theHonMarkDreyfus KC MP.
1.5The Committee called for submissions to assist in its scrutiny of the bills to ensure they achieve the Government’s policy objectives and do not have unintended consequences.
1.6The Committee received 31 submissions, which are listed at Appendix A.
1.7The Committee held a public hearing with representatives of the Attorney-General’s Department (AGD), Department of Home Affairs and Department of Social Services. Further information about the public hearing is at Appendix B.
Developments since the bills were introduced
1.8On 7 February 2024:
- The Attorney General introduced the Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Bill 2024.
- The Senate Standing Committee for the Scrutiny of Bills tabled a report commenting on the ART Bill and Consequential Bill. That committee focused on the use of public interest certificates, intelligence and security-related decisions, the circumstances in which a person can apply for legal or financial assistance, and procedural fairness for migration and protection applicants.
- The Parliamentary Joint Committee on Human Rights tabled its latest report, which also comments on the ART Bill and Consequential Bill. That committee focused on the provision of litigation guardians and the rights of people with disability, restrictions on the disclosure of relevant information, and the termination of employment of AAT members.
- On 8 February 2024 the Senate referred the ART Bill and both Consequential Bills to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 24 July 2024.
Background
1.10Administrative review is a mechanism that allows the subjects of adverse administrative decisions to have those decisions reviewed by an independent arbiter. Decisions that permit administrative review include decisions by government ministers, government departments and government agencies who are, in the context of administrative review, referred to as ‘original decision-makers.’
1.11Administrative review involves a fresh consideration of a decision made by an original decision maker using the material available to the original decision-maker and any new information that has come to light since the original decision was made. An administrative review makes findings of fact to reach a ‘correct or preferable decision.’ Decisions resulting from administrative review are referred to as decisions ‘on the merits.’
1.12Administrative review is distinct from judicial review in that an administrative review can remake a decision while a judicial review cannot. Judicial review can only consider the legality and procedural fairness of a decision and can either uphold the decision or set it aside and order the original decision maker to undertake a new administrative decision process. An administrative review on the merits has a broader range of options available when making a correct or preferable decision. The review can:
- affirm the original decision
- vary the original decision
- set aside the original decision and replace it with a new decision made by the reviewing body
- return the decision to the original decision maker to make a new decision (often accompanied by directions or recommendations).
The Administrative Appeals Tribunal
1.13The AAT was established on 1 July 1976 following reviews of administrative decision making by the Commonwealth Administrative Review Committee in 1971 and the Committee on Administrative Discretions in 1973. These reviews found that Australia needed a mechanism for the external review of government decisions that was accessible, informal and relatively affordable.
1.14In 2015, the administrative appeals process at the Commonwealth level was restructured by merging the Social Security Appeals Tribunal and the Migration Review Tribunal and Refugee Review Tribunal with the AAT.
1.15The AAT’s powers and procedures are set out in the Administrative Appeals Tribunal Act 1975 and Administrative Appeals Tribunal Regulation 2015. The AAT’s powers and procedures can be varied by other laws which allow the AAT to review certain types of decisions using different processes and procedures.
1.16The AAT is the Commonwealth’s largest tribunal, both in terms of membership and scope. Currently, the AAT’s jurisdiction covers government decisions in the following fields:
- child support
- Commonwealth workers’ compensation
- family assistance, paid parental leave, social security and student assistance
- migration and refugee visas and visa-related decisions
- taxation
- veterans' entitlements.
- Australian citizenship
- bankruptcy
- civil aviation
- corporations and financial services regulation
- customs
- Freedom of Information (FOI)
- the National Disability Insurance Scheme (NDIS)
- passports
- security assessments by the Australian Security Intelligence Organisation.
Caseload
1.17Table 1.1 details the AAT caseload for the 2022-23 financial year. There was a total of 41,037 lodgements, with the migrant and refugee, social services and child support, and NDIS divisions supporting the highest caseloads.
Table 1.1AAT caseload, 2022-23
| | | | |
FOI | 143 | 75 | 165 | 36% |
General | 3,937 | 4,333 | 2,587 | 29% |
Migrant and refugee | 19,050 | 20,640 | 54,575 | 30% |
NDIS | 4,271 | 5,604 | 2,846 | 77% |
Security | 2 | 7 | 31 | 29% |
Small business taxation | 417 | 193 | 688 | 29% |
Social services and child support | 12,260 | 11,162 | 3,460 | 24% |
Taxation and commercial | 791 | 496 | 1,607 | 35% |
Veteran’s appeals | 166 | 179 | 172 | 31% |
| | | | |
Source: AAT, AAT Caseload Report for the period 1 July 2022 to 30 June 2023 (extract), www.aat.gov.au/AAT/media/AAT/Files/Statistics/AAT-Whole-of-Tribunal-Statistics-2022-23.pdf, viewed 1 February 2024.
AAT Structure
1.18The AAT consists of the President, who must be a judge of the Federal Court of Australia, a Registrar, who is responsible for the administration of the AAT, and members who may be appointed as deputy presidents, senior members or members.
1.19The table below details the membership structure and number of members by role in the 2022-23 financial year.
Table 1.2Role and number of members of the AAT, 2022-23
| |
Deputy President | 24 |
Senior Member (level1) | 35 |
Senior Member (level 2) | 34 |
Member (level1) | 35 |
Member (level 2) | 141 |
Senior Member (level 3) | 7 |
Total | 276 |
Source: AGD, Administrative Reform Issues Paper, April 2023, page 34.
Administrative Review Council
1.20The AAT Act also permits the establishment of an ARC. The ARC was intended as an organisation that could review the Commonwealth administrative law system, monitor developments in administrative law, inquire into the adequacy of procedures used by decision-makers and tribunals such as the AAT, and recommend improvements to the Minister.
1.21Between 1976 and 2015, the ARC produced 10 practice guides and 50 reports on topics including preparing statements of reasons; standards of conduct for AAT members; automated assistance in administrative decision making; administrative accountability; and information-gathering powers of government agencies.
1.22In 2015, the ARC was defunded and discontinued, although it continues to exist under the AAT Act.
Previous reviews of the AAT
1.23Several recent reviews and inquiries have called for significant reforms to the AAT.
Callinan review of the AAT
1.24The Hon Ian Callinan AC QC completed a statutory review of the AAT, which was tabled in July 2019. The review found the AAT was not always meeting community expectations, and workloads and backlogs were preventing the timely and final resolution of matters.
1.25The review recommended a range of measures including more appointments to deal with the backlog of cases in the migration and refugee division, and changes to staff structures and how cases are managed. The review also called for more transparency around the selection of members to the AAT and recommended that members should have legal qualifications.
Senate inquiry into the performance and integrity of the administrative review system
1.26The Senate Legal and Constitutional Affairs Committee reported on its inquiry into the performance and integrity of the administrative review system in March 2022. That committee recommended the AAT be abolished and that a new federal administrative review body be established with a transparent, merit-based selection process for members and the re-establishment of the Administrative Review Council. The bills give effect to these recommendations.
Rapid Review into the Exploitation of Australia's Visa System
1.27The report of the Rapid Review into the Exploitation of Australia's Visa System (Nixon Review) was provided to the Australian Government on 31 March 2023. The Nixon review found that visa processing and review timeframes for onshore protection visa applications are too high and this is ‘motivating bad actors to take advantage by lodging increasing numbers of non-genuine applications for protection.’
1.28In 2021–22, the median time it took for the AAT to finalise the review of a protection visa decision was over two years and two months. This means that many migrants and refugees remain on bridging visas for several years until their review is finalised, which leaves them vulnerable to labour market exploitation. The Nixon Review reported that temporary migrant workers in Australia are at the greatest risk of exploitation.
1.29The Nixon Review noted that, currently, the AAT undertakes a full merits review for most visa streams. This includes tourists holidaying in Australia, or students studying a course in Australia. The Nixon Review recommended that merits review for visit/tourism and study streams should be conducted ‘on the papers’ without a hearing, and within a set period of time. New information should only be considered in exceptional circumstances. The Nixon Review also recommended that improved efficiency be a key focus in the establishment of the new federal administrative review body. The bills respond to these recommendations.
Royal Commission into the Robodebt Scheme
1.30The report of the Royal Commission into the Robodebt Scheme was tabled on 7July2023. The Robodebt Scheme was designed to recover supposed overpayments from social security recipients and relied heavily on a process known as ‘income averaging’ to assess income and entitlement to benefit. The Robodebt Scheme produced inaccurate results and did not comply with the income calculation provisions of the Social Security Act 1991.
1.31Social Security recipients who had a debt raised against them by the Robodebt Scheme could seek review from the AAT. Several decisions were made by AAT members that set aside debts raised by the Robodebt Scheme because income averaging alone could not provide evidence of actual income, overpayment or debt. However, these decisions were not published. The Royal Commission found that the Australian Government largely ignored the AAT’s decisions, although it did take whatever steps were directed by the AAT to rectify the individual cases.
1.32The Royal Commission made several recommendations that relate to the establishment of a new administrative review body:
- the publication of first instance social security decisions that involve significant conclusions of law or have implications for social security policy
- the re-instatement of the ARC
- amendments to the Ombudsman Act 1976 to ensure the Ombudsman has the powers to refer and recommend referral to the new administrative review body.
- The bills respond to these recommendations.
Policy objectives of bills
1.34In his second reading speech, the Attorney-General, the Hon Mark Dreyfus KC MP, said ‘unfortunately, the AAT no longer enjoys the trust and confidence of the Australian community it serves, and is not fit-for-purpose’, and noted that a merit-based selection process for AAT members has been lacking.[37] He identified several other problems with the AAT:
Government inherited an AAT that is not on a sustainable financial footing, that is beset by delays and a large and growing backlog of applications, and an AAT that is operating multiple and ageing electronic case management systems—a legacy of the poorly executed amalgamation of multiple tribunals into the AAT in 2015.
The government also inherited an AAT that is no longer taken seriously—or, at least, seriously enough—by government departments and agencies. As the robodebt royal commission highlighted, the AAT made hundreds of decisions that the approach to calculating and raising debts under the scheme was unlawful—but those decisions, and their obvious implications, were ignored and ultimately buried.[38]
1.35The Attorney-General described the overall objectives of the bills:
These bills would abolish the Administrative Appeals Tribunal and replace it with a new and much improved Administrative Review Tribunal. In doing so, these bills represent the most important reform of the federal system of administrative review for decades. Effective administrative review is critical to Australia's system of government. A strong, user-focused administrative review body provides an avenue for community members to seek independent review of government decisions that have major and sometimes life-altering impacts on their lives. This function is critical to protecting the rights and interests of individuals and organisations, including the most vulnerable members of our community. And critically, high-quality review of government decision-making can—and, if this bill is enacted, will—encourage better quality decision-making across government.
1.36AGD advised that ‘subject to the passage of the legislation, the department is working towards the new tribunal commencing operations this year.’
Structure of report
1.37The following chapters examine whether the ART Bill and Consequential Bill meet the Government’s objectives and considers if there are likely to be any unintended consequences if the bills pass in their current form.
1.38Specific issues raised during the inquiry relating to the ART Bill are examined in Chapter 2.
1.39Specific issues raised by stakeholders relating to the Consequential Bill are examined in Chapter 3.