2. Administrative Review Tribunal Bill 2023
   1. The Administrative Review Tribunal Bill 2023 (ART Bill) would establish the new Administrative Review Tribunal and re-establish the Administrative Review Council (ARC).
   2. The Committee considered whether the ART Bill achieves the Australian Government’s objectives and if the bill is likely to have any unintended consequences.
   3. There was general agreement around the need to replace the Administrative Appeals Tribunal (AAT) with the Administrative Review Tribunal (ART), and strong support for key aspects of the ART Bill, particularly those elements that support transparency of government and ART decision-making and government accountability. However, submitters raised a number of concerns and made a range of suggestions for how – in their view – the ART Bill could be further strengthened. Those concerns, and suggestions, are examined in this chapter.

Overview of the bill

2.4The ART would conduct merits review of administrative decisions, while the ARC would monitor the integrity of the administrative review system, inquiring into and reporting on systemic challenges in administrative law, and supporting education and training for Australian Government officials in relation to administrative decision-making and the administrative law system.[1]

2.5The ART would have a President, Deputy Presidents, senior members and general members, a Principal Registrar, and staff. The ART Bill sets out their appointment, functions and terms and conditions.

2.6The ART Bill includes standard provisions applying to ART processes. Other legislation (such as the Migration Act 1958) can include provisions that apply in addition to, or instead of, these standard provisions.

2.7Broadly, the process for review of a decision by the ART would include the following stages:

• a person whose interests are affected by a reviewable decision applies to the ART for review
• the applicant, the decision-maker and potentially other persons become parties to the proceeding for the review
• the President constitutes the ART for the purposes of the proceeding by deciding which member or members will exercise the ART’s powers for the proceeding
• the ART conducts the proceeding, including obtaining evidence and holding hearings, directions hearings and dispute resolution processes
• the ART makes its decision.
  8. The ART would review decisions on their merits. It may affirm, vary or set aside a decision-maker’s decision. If the ART sets aside a decision, it may make a substitute decision or remit the matter to the decision-maker to reconsider as ordered or recommended by the ART.
  9. After the ART makes its decision, there are circumstances where a party may apply to refer the matter to the guidance and appeals panel for another review. A party may appeal to the Federal Court, on a question of law, from the ART’s decision.
  10. There would be special rules when the ART examines decisions relating to intelligence and security. This occurs if the proceeding relates to an intelligence and security decision or the President otherwise directs, for example where the President is satisfied national security information would be involved.
  11. There would be requirements for decision-makers to give notice of decisions and review rights and provide statements of reasons. These apply regardless of whether an application has been made to the ART for review of the decision.
  12. The ART Bill would establish the ARC, with functions relating to the Commonwealth administrative law system. The bill sets out ARC members’ appointment, functions and terms and conditions.[2]

Objectives of the bill

2.13The ART Bill is intended to provide a comprehensive framework for the ART to improve the experience of those seeking review of government decisions and ensure that reviews are conducted effectively, efficiently and fairly. The ART would be required to pursue the objectives of providing an independent mechanism of review that:

• is fair and just
• ensures that applications for review are resolved as quickly, and with as little formality and expense, as a proper consideration of matters permits
• is accessible and responsive to the diverse needs of parties to proceedings
• improves the transparency and quality of government decision-making
• promotes public trust and confidence in the ART.[3]

Parts 1 and 2: preliminary matters and establishment of the ART

2.14Part 1 details several preliminary matters, including the short title, commencement, simplified outline, definitions used in the ART Bill, the ART’s jurisdiction, and provides that other acts or instruments may modify or disapply provisions of the bill where there is a contrary intention. Part 2 establishes the ART, its objectives and members.

2.15Law Council of Australia (LCA) suggested some minor drafting changes to Parts 1 and 2, to clarify that the purpose of the ART is to provide for merits review of administrative decisions, and suggested changes to the Explanatory Memorandum.[4]

Statutory review clause

2.16Concerns were raised that the ART Bill does not have a statutory review clause. LCAsaid this contrasts with state and territory civil and administrative tribunals, where a statutory review is required to occur either once or periodically.[5] LCA recommended the bill be amended to provide for an independent review after three to five years, and that the review should examine whether the ARC is meeting its stated objectives.[6]

2.17The Centre for Public Integrity recommended that the statutory review clause should:

• specify who is qualified to undertake the review;
• mandate the minimum issues to be considered;
• require that the review report be commenced within a specified time, and completed within a specified time; and
• require that the completed report be tabled within a specified time.[7]
  18. The Attorney-General’s Department (AGD) said the reason why there is not a statutory review clause is because the ART Bill seeks to create ‘a self-improving, self-correcting system’. AGD explained:

There are a range of mechanisms within the tribunal itself but also in the Administrative Review Council, and the various capacities in which issues can be raised up for attention, in a policy and a legal sense, are all intended to work together so that you don't have to wait three years to look at whether something is working. If there's a problem, we should be able to identify that and have an opportunity to look at ways to fix it much sooner than that.[8]

2.19AGD noted several other elements of the ART Bill that support transparency and the ART’s ability to self-correct, including:

• the new code of conduct and performance standard requirements for members and staff
• stronger reporting obligations, and obligations on members to look out for and escalate systemic issues
• the Tribunal Advisory Committee, which will provide a forum for senior ART leaders to review the operation of the ART and consider improvements
• the Guidance and Appeals Panel (GAP) to promote consistent decision-making and to respond to emerging issues.[9]
  20. AGD said:

We would really wish to avoid a situation where the view is we don't need to do anything to fix things now if there's an issue that starts to arise, because there's a statutory review three or five years down the track. We're really seeking to turbocharge that immediate review piece with the re-establishment of the ARC and other factors upfront.[10]

2.21AGD added that it would prefer to see ‘… that those conversations are happening all the time. The other problem with a statutory review mechanism is that we don't want to detract from the role and the discretion of the ARC.’[11]

Costs

2.22The Explanatory Memorandum describes the ART as a no-costs jurisdiction, where each party bears their own legal costs with some exceptions where the ART is allowed in relevant legislation[12] to order a party to pay its own costs.[13]

2.23LCA recommended the ART Bill include a costs provision that clarifies that no-costs is the default position, and then accounts for all potential exceptions to this approach. LCAsaid this would assist all users of the ART, ‘particularly applicants who are unfamiliar with its operations.’[14]

2.24AGD emphasised that the ART is ‘by default a no-costs jurisdiction, meaning each party bears their own legal costs. This represents a continuation of the status-quo for merits review and is the current default position in the AAT.’[15]

2.25Matters referred to the GAP may require applicants to bear the costs of review twice, for example where an applicant succeeds in the first instance, but the respondent department or agency applies to the President to refer a decision to the GAP. In such a situation, the applicant will have no recourse to compensate them for having invested time, effort and expense defending their application for review. LCA argued this was inconsistent with the ART’s stated objectives because:

• 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 the resources available to Commonwealth agencies—be required to bear the costs of litigation twice.[16]
  26. LCA noted there is currently no general provision in the ART Bill for the ART ‘to order costs in circumstances where a Commonwealth department or agency has departed significantly from conduct consistent with that of a model litigant.’[17] LCA recommended:

Consideration should be given to providing for 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 layer of review through the Guidance and Appeals Panel is imposed upon the applicant.[18]

2.27Similarly, the Public Interest Advocacy Centre (PIAC) recommended that the ART ‘be empowered to award costs against a government respondent where that respondent is found to have acted inappropriately in its conduct of the matter before the ART.’[19]

2.28AGD responded to these concerns:

The Government is aware that some stakeholders support introducing an ‘asymmetric costs provision’, which would allow the Tribunal to award costs against Government parties, but not against non-Government parties. The proposal was considered during the consultation process. This proposal has not been included in the ART Bill because:

• Costs are generally not consistent with the nature of merits review.
• There is a risk that it could make the review process more adversarial and could be difficult to enforce in a tribunal setting.[20]

Part 3: starting a review

2.29Part 3 outlines key concepts for review of decisions, such as the concept of a ‘reviewable decision’, and the steps involved in initiating a review of a decision in the ART.

Time limits for applications

2.30Clause 18 sets out that an application must be made to the ART to review a decision within the period prescribed by the rules, but no less than 28 days after the decision is made. The ART may extend this period where it is reasonable in the circumstances to do so.

2.31LCA ‘considers that 28 days is a suitable minimum period in which persons affected by government decisions should have to consider the decision, understand the reasons for the decision and their review rights, and decide whether or not to apply for review.’[21] However, LCA and several other stakeholders were concerned that those in immigration detention will only have seven days to apply for review, while those seeking review of a character test decision will have nine days.[22] The issue of different timeframes for migration and protection applicants is examined further in Chapter 3.

2.32Women’s Legal Services Australia (WLSA) argued that the time limit for applications to the ART should be ‘at least 60 days to allow time for applicants to seek help, information and legal advice or representation, and there should be additional flexibility where there is compassionate and compelling circumstances, including domestic and family violence.’[23]

2.33In response to these concerns, AGD noted that the ART has broad discretion to grant extensions of time where an application is made outside of the required time limits. AGD said the ART ‘may consider circumstances including domestic and family violence in determining whether an extension is warranted.’[24]

Access to key documents and reasons for decisions

2.34Subdivision B provides that the decision-maker must provide all documents relevant to the decision under review to the ART and to the other parties to the proceeding within 28 days and a statement of reasons for the decision. There are exceptions for migration and protection applicants, who are required to request the Department of Home Affairs provide such documents.[25]

2.35National Legal Aid (NLA) recommended the ART Bill explicitly require decision-makers to provide access to any decision-making tools that were used to make the original decision, including the Typical Support Package task cards that are used by the National Disability Insurance Agency (NDIA) to make decisions. NLAsaid ‘these tools can be crucial documents, but government agencies often refuse to provide them …’[26]

2.36AGD clarified that the requirement for decision makers to provide information or documents to the ART ‘would include any materials used by the NDIA when making a decision, including information and material that was used to develop a participant’s individualised plan.’[27]

Requiring adequate reasons for decisions to be provided

2.37PIAC were concerned clause 23 does not ensure sufficiently detailed reasons are made available for decisions. PIAC said:

Adequate statements of reasons for decisions are crucial, as they allow those affected to decide whether to seek review by the ART, assist the ART in conducting its review, and serve the public good by exposing government decision-making practices to public scrutiny and accountability.[28]

2.38PIAC recommended that, should the ART find ‘the decision-maker has not provided sufficient reasons, the legislation should require the ART to order the production of a further, adequate statement of reasons.’[29]

2.39AGD said the ART Bill strengthens requirements for statements of reasons because decision-makers must ‘explain’ rather than only ‘give’ reasons for decisions, as was the case in the Administrative Appeals Tribunal Act 1975 (AAT Act). Where a decision-maker does not provide a statement, or if it does not adequately set out the finding on material questions of fact, refer to the material (including evidence) on which those findings are based, and explain the reasons for the decision, then the person can apply to the ART. If the ART considers that no statement has been provided, or that the statement is inadequate, the decision-maker must provide an additional statement within 28 days. The ART may also require further information to be provided from the decision-maker to ensure all parties can better understand the basis for the reviewable decision.[30]

Privilege and public interest

2.40Clause 30 provides that documents required to be given by the decision-maker must be given, regardless of legal professional privilege, without prejudice privilege, or public interest immunity in relation to the production of documents. LCA noted that while this clause reflects current settings in the AAT Act, as drafted it ‘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.’[31] LCA recommended the Committee consider whether the policy rationale for including the ‘without prejudice’ privilege in clause 30 is consistent with the objects of the ART Bill.[32]

2.41AGD said that the purpose of the clause is to allow the ART to step into the shoes of the original decision-maker:

… it is really imperative that the tribunal has access to all of the documents that were in front of the original decision-maker. In terms of protections, parties can still … make claims of privilege or request non-disclosure orders for particular information that they do not wish to be disclosed other than to the tribunal. But the starting point and the default is that the tribunal must have access to all of the information that was before the original decision-maker.[33]

Part 4: proceedings

2.42Part 4 sets out the process the ART would follow when an application 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.

2.43LCA recommended clarifying amendments to clauses 39(3), 53 and 71(2)(d)(ii).[34]

Practice directions

2.44Clause 36 would allow the President to make practice directions about the accessibility of the ART and its responsiveness to the diverse needs of parties to the proceedings. The purpose of this is to ensure that the ART allows parties to fully participate in and understand proceedings.[35]

2.45There was support for the ART Bill to include a requirement that practice directions be developed in consultation with users and their representatives.[36] Professor Kylie Burns, Professor Susan Harris Rimmer and Dr Eloise Hummell recommended specific practice directions be developed for the National Disability Insurance Scheme (NDIS) jurisdiction.[37]

2.46AGD responded to these concerns stating that the ART Bill, unlike the AAT Act, ‘explicitly provides for civil society and user consultation to occur, and requires annual reporting on these consultations.’[38] AGD noted that the President may make practice directions about the accessibility and responsiveness of the ART to the diverse needs of parties. In making a practice direction, the President must consult with the Tribunal Advisory Committee, which, in turn, is required to have regard to the views of stakeholders. The President must also engage and consult with civil society about the performance of their functions, including practice directions and must report on this annually. AGDadded:

Each of these provisions relating to engagement with civil society is a new measure within the ART Bill, with no equivalent provision in the AAT Act, and enshrines the importance of the Tribunal working closely with the communities it serves.[39]

2.47Mr Mark Carey argued for clarification that practice directions can be made to accelerate review in particular cases, for example where an injured employee is in urgent need of surgical or other medical treatment.[40]

Ensuring ART is fully accessible for people with disability

2.48Stakeholders argued the ART Bill could be strengthened to ensure the ART will be fully accessible for people with disability.[41] For example, Disability Advocacy Network Australia (DANA) and others asserted that before making practice directions, the ART must consult with people with disability to determine how to ensure the ART is accessible for them.[42]

2.49JFA Purple Orange argued that the ART Bill should be amended to:

• provide the President with a co-design function to ensure accessibility
• to require that members and staff are trained in effective decision-making concerning people with disability, cross-cultural communication, working with interpreters and trauma-informed practice
• to require that educational and training materials are co-designed with the relevant lived experience community.[43]
  50. Professor Burns et al said there should be a broad, overriding statutory object of the ART that indicates it is intended to give effect, in conjunction with other laws, to Australia’s obligations under the United Nations Convention on the Rights of Persons with Disabilities.[44]
  51. AGD emphasised that the ART Bill contains several new measures to ensure it meets its objective to be accessible and responsive to the diverse needs of parties:
• ‘Accessible’ is defined in clause 9 as enabling ‘persons to apply to the Tribunal and to participate effectively in proceedings in the Tribunal’ and several examples are provided.
• Clause 51 requires the ART to conduct proceedings that are accessible for the parties and there are flexible powers to ensure accessibility for people with disability, such as the appointment of an interpreter, and options for appearing before the ART virtually.
• All senior leaders of the ART will be individually and jointly responsible for pursuing the ART’s objective to be accessible, and the President will need to report on this annually.
• The President is explicitly empowered to make practice directions in relation to accessibility.[45]

Decision makers may elect not to participate

2.52Clause 60 allows decision-makers to elect to not participate in some kinds of proceedings. AGD said this provides flexibility to resolve applications as quickly and with as little formality and expense as the proper consideration of the application requires.[46]

2.53PIAC was concerned that, where a review proceeding occurs in the absence of a respondent the ART Bill does not clearly define the nature of the review. For example, PIAC said ‘it does not establish whether such proceedings are inquisitorial or adversarial in nature; or outline the content of procedural fairness obligations that may be owed to the absent respondent.’[47] PIAC recommended the bill be amended to:

• include an explicit statement that when the decision-maker is a nonparticipating party or is removed from the proceeding for any reason:

• the ART is not required to afford the decision-maker procedural fairness; and
• the ART may inform itself on any matter in such manner as it considers appropriate.[48]
  54. PIAC noted that, in the absence of the respondent, the presiding ART member(s) may conduct an inquisitorial review. PIAC said these types of review ‘… must be done carefully to avoid unfairness to the applicant or the perception of bias by the presiding member’.[49] PIAC recommended Members receive training to conduct inquisitorial proceedings where a respondent elects not to participate.[50]
  55. AGD observed that the term ‘inquisitorial’ was loaded and said the ART would be able to provide a more personal model of review where the decision-maker works ‘…with the participants to really understand the issues, work out if there is missing information and test whether they've understood the issues correctly.’[51] AGD reported that ‘…overall, people find that a very accessible model and that, in general, there's a preference in many cases to expand the availability of that model.’[52] AGD noted that reviews involving both parties would be necessary in some circumstances, particularly GAP proceedings.[53]
  56. Professor Matthew Groves asserted that decision-makers should be required to provide reasons for not participating.[54]
  57. Mr Jonathan Ta and Ms Josie Mortimer said there was a need for consistency in practice of government agencies appearing as respondents. While there are benefits in respondents appearing during hearings, such as to clarify policy or explain complex statutory frameworks, and to promote prompt responses and accountability, there are also several negatives. These downsides include applicants being intimidated or retraumatised by the appearance of respondents, and increased adversarialism. Mr Ta and Ms Mortimer called for the development of guidelines for respondents, which could be included in regulation, and tribunal-specific model litigant obligations.[55]
  58. AGD said that, in most cases, it would be self-evident why a decision-maker may seek not to participate but said there were a number of backstops:

If there were some behaviour by an agency where they started, for example, opting out of matters where there was a clear need for them to be there, there are robust powers for the tribunal to order them back in. So there is no capacity to step out of a matter that you should be in, in terms of an agency perspective. It's seeking a smooth and rapid way to get to the right handling for most matters, while making sure that agencies and the tribunal both have the capacity to identify those matters where a full everyone-in-the-room complex-submissions model is the right model.[56]

2.59AGD indicated that rules would be developed to assist agencies in engaging with the ART. AGD also said that there are broad, principles-based model litigant obligations on government departments and agencies that apply in tribunal settings and did not see a need for any ART-specific model litigant obligations.[57]

Legal representation and interpreters

2.60Clause 66 provides that applicants may choose another person to represent them at the ART. This includes parties in migration and protection matters.[58] LCA said this represents an improvement on current arrangements in the AAT, where applicants may have representation at a hearing, but not for entire proceedings.[59]

2.61Clause 67 provides for the ART to appoint a person to be a litigation guardian for applicants in certain circumstances to help applicants participate in proceedings, for example where a person does not understand the nature and possible consequences of the proceeding.

2.62Clause 68 provides for the ART to appoint interpreters both at the request of the applicant, and on its own initiative where the ART considers a person appearing at a case event requires assistance with communication and understanding evidence and submissions.

A representative can be removed in some circumstances

2.63Clause 66 provides that the ART may remove a person’s representative if there is a conflict of interest, if the representative is not acting in the applicant’s best interests, is a safety or privacy risk, or is impeding the ART. LCA recommends:

• Clause 66(3) should be amended to provide for procedural fairness prior to a decision by the Tribunal to remove a person’s representative.
• As an alternative to clause 66(3), the Tribunal should be empowered to refer a legal representative to the body responsible for the regulation of legal practitioners in the relevant State or Territory.
• The President should provide appropriate guidance to Tribunal members to ensure that they are aware of legal practitioners’ professional ethical obligations, particularly for members without legal qualifications.[60]
  64. In response to these concerns, AGD noted that the ART will have a general duty to provide procedural fairness to all parties, whether they are represented or not, under common law. The ART Bill would impose specific duties on the ART, including the fair hearing rule in clause 55. AGD said the AAT currently has an implied ability to remove representatives where they are not assisting the AAT, whereas the ART Bill makes this power explicit and ensures that it can only be used in limited circumstances.[61]
  65. AGD said the ART may consider reporting a breach to the relevant professional association or standards body but noted the need for the ART to be able to ‘determine its processes and policies for referring representatives to relevant entities.’[62]

Litigation guardians

2.66JFA Purple Orange recommended that the term ‘litigation supporters’ would be a better term because the word ‘guardian’ implied substituted decision-making. JFAPurple Orange also recommended changes to clause 67 to incorporate supported decision-making principles in accordance with national and international best practice.[63]

2.67AGD said that it expects the use of the litigation guardian provision would be rare and explained:

The need was certainly identified by the AAT. The circumstance has arisen where a case is indefinitely stayed because a person can't participate in the litigation, and that's something that obviously irks the tribunal, as it should. But, in our consultations, there were also quite a number of stakeholders—members and staff were very concerned about this issue.[64]

2.68AGD noted that the term ‘guardian’ was ‘very loaded’ and that a range of alternative terms were considered. However, the decision was made that it was better to adopt the term ‘guardian’, which was well understood ‘even if it wasn’t 100 per cent on point.’[65]

Support for legal aid will be essential

2.69More broadly, the Committee heard that access to legal advice and representation will be essential to ensuring the success of the full suite of measures proposed by the ART Bill in terms of improving administrative review. Several stakeholders indicated that resourcing for legal support and advocacy should be increased, particularly for vulnerable applicants.[66] For example:

• DANA stated that the measures in the bill that aim to improve access to justice will be of limited practical value without substantial efforts to support people with disability to contest decisions. This requires greater investment in Legal Aid and advocacy services to support people to engage with ART processes and address power imbalances between applicants and government agencies. DANA recommended:

• ensuring appropriate funding for Legal Aid in each jurisdiction and expanding the NDIS Appeals Advocacy program to ensure that people with disability have equitable access to support; and
• introducing additional lump-sum payments to Legal Aid and advocacy bodies when large increases in the number of applications to the ART occur.[67]

• PIAC emphasised that legal support is vital to many applicants in administrative review proceedings and can enable tribunals to conduct reviews in a just, fair and efficient manner. PIAC recommended that the ART Bill provide for sustained and substantially increased funding for legal and advocacy services to assist applicants based on a legislated formula, which reflects the demand for such assistance.[68]
  70. LCA welcomed the inclusion of the clauses providing for litigation guardians and interpreters but advised that ‘sufficient funding will be required to ensure that any subsequent demand can be met.’[69]
  71. When asked whether more funding was expected for legal serves, AGD said that separate work on the National Legal Assistance Partnership is underway.[70]

Dismissing applications

2.72Clause 101 would allow the ART to dismiss applications as frivolous or vexatious without holding a hearing. LCA welcomed this clause.[71]

2.73By contrast, WLSA were concerned ‘this may have unintended consequences for people who are not able to access legal assistance and have self-lodged, or for victim-survivors of domestic or family violence who are not aware of the contents of the application.’[72] WLSA said the ART:

… should be required to consider whether there is any merit in an application by holding a hearing rather than dismissing an application. There should be exceptions to this, for example the Tribunal should be able to dispense with a hearing where a positive decision can be made, or in circumstances where applicants are unable to participate in a hearing because of barriers such as trauma, mental health conditions, or accessibility.[73]

2.74AGD noted there was a similar provision in the AAT Act and that this is used sparingly. AGD said:

The barrier to actually making an application is very low. In social security matters, for example, you can simply request a review over the phone and that is sufficient, and the tribunal can act primarily on the file that is given from the agency. So there's not much actually required directly of applicants to have a review handled. They may wish to provide extra information or have a conversation with the member. But you would have to do quite a lot to reach that bar of frivolous or vexatious, because the vast majority of people before this body are unrepresented and they're working mostly off the material already provided to the agency and the agency's file and decision, as well as anything else that the applicant might wish to provide. In that context, to be frivolous or vexatious is a very high bar.[74]

Part 5: Guidance and Appeals Panel

2.75Part 5 of the ART Bill would establish the GAP and provides for its operation and the referral of matters. The GAP is intended to provide a mechanism for escalating significant issues and addressing material errors in ART decisions. This aims to promote consistent decision-making by the ART and rapid responses to emerging issues.[75] The GAP would constitute the ART at a more senior level to:

• review some decisions made by decision-makers, or
• re-review some decisions that have been reviewed by the ART.
  76. Generally, the GAP would be constituted in the following circumstances:
• where an application for review of an original decision raises an issue of significance to administrative decision-making, and
• where an ART decision may contain an error of fact or law which materially affects the decision.[76]
  77. The GAP would consider matters de novo; that is, it would step into the shoes of the original decision-maker and consider the decision afresh. Unless otherwise specified, the GAP would retain all powers and procedures of the ART as set out in the ARTBill.[77]
  78. Applicants would not have an automatic right of review by the GAP. Rather, the President would have the discretion to refer a matter to the panel. This is intended to focus the GAP on errors of fact or law and matters of significance to administrative decision-making.[78]
  79. There was support for the proposed GAP as part of the broader suite of measures to enhance the effectiveness of administrative review, improve transparency, and build trust and confidence in the ART.[79]

Changes to two-tier merits review structure for social security and family assistance decisions

2.80Most applicants to the AAT have access to a single tier of review. However, two tiers of review are available in relation to many social security and family assistance decisions.[80] For social security and family assistance matters, the first review is usually less formal, and the decision-maker is not required to participate in hearings and may instead make written submissions.[81] The second review is typically more formal and adversarial and involves both the applicant and the decision-maker as parties.[82]

2.81The Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023 (Consequential Bill) would repeal provisions of the AAT Act and other relevant legislation to remove the two-tier review process. Under the new regime, applicants would have access to a single review in the ART, with capacity to request review of the ART’s decision in the GAP. More complex or significant matters may also be referred directly to the GAP.[83]

2.82AGD explained that the proposed model combines the ‘best features’ of first and second tier review and makes enhancements to ensure effective outcomes through a single review process. Key measures include making dispute resolution and case conferring available at first review and providing a mechanism for complex matters and ART decisions affected by error to be escalated to the new GAP.[84]

2.83AGD also stated that it will work with stakeholders, government agencies and the new ART to ensure that the shift to the new review model is effective for social security and child support applicants. This will include a focus on the capability of members and registrars to support applicants to effectively participate, timely referral to legal assistance and support services, and accessibility supports.[85]

Impacts of the new administrative review structure on vulnerable applicants

2.84Concerns were raised that the introduction of a GAP, as drafted, would not compensate for the loss of two-tier review for social security and family assistance matters.[86] The Committee heard that a two-tier review structure for social security and family assistance decisions is an important protection for vulnerable applicants who are often unrepresented in AAT proceedings and may be incapable of presenting relevant material or making arguments on their own behalf. Stakeholders expressed concern that the loss of universal two-tier review may increase and entrench disadvantage for those applicants.[87]

2.85Economic Justice Australia (EJA) said the abolition of the two-tier review system for social security and family assistance matters is likely to significantly undermine other measures that aim to enhance access to and the quality of administrative review. According to EJA, abolishing the two-tier structure would make administrative review less accessible, deter potential applicants from lodging applications, increase attrition (that is, withdrawal of applications), and reduce overall fairness and equity.[88] EJAsaid that, under the system as contemplated by the bills:

… vulnerable people will have one shot at correcting decisions. If they are unsuccessful because they are not afforded an opportunity to provide information [or] supporting evidence regarding the facts of their case and their circumstances … haven’t received comprehensive advice … or have misunderstood the issues in question, the decision will stand. This is a significant step backward from the current AAT system.[89]

2.86EJA warned that the additional costs of moving to a single-tier system would be borne by applicants, the community sector, Legal Aid and related services, and the government.[90] Furthermore, EJA said the abolition of two-tier review is likely to limit opportunities for settlement, at least where matters are not referred to the proposed GAP, as applicants may no longer be afforded the opportunity to persuade the relevant government agency to settle.[91]

2.87In addition to raising concern about the abolition of two-tier review for social security and family assistance matters, NLA called for the introduction of a first tier of review for NDIS matters, to help address concerns associated with current NDIS appeals, including overly formal and adversarial processes and lengthy wait times. NLA emphasised that establishing a first tier of review must include a right for applicants to also seek a second review following the ART’s decision.[92]

‘A different two-tier model’

2.88In response to the concerns raised in submissions to this inquiry, AGD did not agree with the characterisation of the reform as the loss off the two-tier model of review and instead referred to it as ‘… a different two-tier model. The guidance and appeals panel will [provide] a different second tier to the existing approach.’[93] AGD explained:

We're really conscious of the experience of people in this system and we understand the elements at play at each level. What we heard very strongly was that at that first-tier in social security and child support matters, people appreciate the informality of the approach—that they're heard and get a decision that they understand. At the second tier we heard that the main benefit is the capacity to negotiate with the agency, which is not available currently at the first tier of review. But we also heard a lot from users that at that point they've had a decision by the agency, they've had an internal review by the agency and an external review by the tribunal, and they then have the potential capacity to negotiate. What the approach is actually intended to achieve is to bring forward the elements of the second tier of review which are valued currently. Those are primarily that capacity to work with the agency and the degree of triaging into the first tier of review so you don't have to go through three layers before you can even access those elements. It's a quite deliberate choice.

It's also, I think, very much the case that the two-tiered model was a key part of the structural challenges in escalating Robodebt-related legal issues. Again, we have that in mind, that this is a more nuanced model which is intended to be more responsive to a range of needs and to give people access to the right form of resolution for their matter at the earliest possible stage but without increasing formality in that review. So there's still an expectation that unless there's a good reason to bring the agency in at that review, they're generally one-party matters where the agency doesn't participate. But if there's a good reason to negotiate with the agency—and most matters at second tier are resolved through negotiation with the agency—then that opportunity is brought forward. It's a more nuanced approach but with a particular focus on escalating issues of significance, and then with a backstop in terms of material errors of law and material errors of fact.[94]

Referral of matters to the Guidance and Appeals Panel

2.89Broadly, a matter may be referred to the GAP where:

• the President decides to refer an application to the ART for review of a decision directly to the GAP[95], or
• any party to a review proceeding in the ART applies to refer the decision of the ART to the GAP.[96]
  90. Decisions to refer an application directly to the GAP are made on the President’s own initiative. Before referring an application to the GAP, the President must be satisfied that the application raises an issue of significance to administrative decision-making, and that it is in the interests of justice for the GAP to consider the matter and must have regard to the circumstances of the parties to the proceeding.[97]
  91. Parties seeking to have a decision of the ART referred to the GAP must make an application in 28 days giving a statement of reasons for the decision. The application must explain why the decision raises an issue of significance to administrative decision-making or contains a material error of fact or law. It must also provide information specified in the practice directions. A failure to comply with these requirements does not invalidate an application. However, the President may refuse the application if the requirements are not met. There is no obligation to make further inquiries where an application does not contain sufficient information.[98]
  92. The Committee asked for clarification whether government departments or agencies could make settlements with applicants to avoid matters being referred to the GAP. AGD said that the President’s own-motion power would allow for matters to be referred to the GAP in these circumstances, and remarked ‘… you don't want to deprive people of the ability to settle if that's in their favour …’[99] AGD also noted the requirement that ‘… any settlement by consent be approved by the actual panel before it is made so that these things are at least ventilated to the tribunal prior to them being settled.’[100]

Referral process and criteria

2.93Concerns were raised that the provisions for the referral of decisions to the GAP are unclear, confer significant discretion on the President of the ART, and may not be adapted to the circumstances of certain parties. For example, Monash Law Clinics (MLC) noted that applicants may be prevented from seeking further review where they were unable to provide relevant material to the ART in the first instance. MLC said the ART Bill should be amended to enable the President to refer a matter to the GAP in additional ‘compelling or exceptional circumstances’.[101]

2.94NLA similarly asserted that GAP review should be made available where new information becomes available after an ART decision. This would be to ensure that applicants are able to address gaps in evidence that only become clear after a decision is made.[102] NLA also recommended changes to help ensure that applications from disadvantaged and unrepresented litigants are not refused on technical grounds[103] and that fees should not be charged for GAP applications because this could put GAP review out of reach of, or create additional hardship for, financially disadvantaged people.[104]

2.95Professor Crock said the reasons given in the Explanatory Memorandum for excluding intelligence and security decisions from GAP review are ‘not convincing’, noting such decisions are equally susceptible to error or defect as decisions related to other matters. Professor Crock warned this provision could be exploited, stating ‘it could be possible to cynically label a decision as 'intelligence and security' to render it less susceptible to review without good reason.[105] Professor Crock said that, at the very least, the President should have discretion to refer intelligence and security-related decisions to the GAP, as is the situation with migration matters.[106]

2.96EJA indicated that under provisions of the ART Bill as currently drafted, a GAP would be unlikely to consider cases with substantial impacts on individuals—such as refusal of Disability Support Pension on medical grounds or debt waiver decisions—unless they raise issues of significance to administrative decision-making. Moreover, even where the matter does raise an issue of significance, the President retains the discretion to refuse to refer the matter to the GAP.[107]

2.97Associate Professor Janina Boughey and Dr Ellen Rock said the requirement for a matter to raise ‘an issue of significance to administrative decision-making’ could be clarified by adding a non-exhaustive list of examples of such matters.[108]

2.98The Asylum Seeker Resource Centre (ASRC) asserted that the power in proposed section 122 to refer applications directly on to the GAP should be qualified by a requirement for the President to consider whether the referral will cause disadvantage to the applicant, including financial and psychological harm.[109] ARSC also argued for a maximum timeframe (for example, four months) to be imposed on GAP proceedings to reduce wait times and ensure that applicants have timely access to judicial review.[110]

Tribunal guidance decisions

2.99Proposed Division 9, Part 4 of the ART sets out matters relating to GAP decisions, referred to as guidance decisions.

2.100Concerns were raised that, while the ART Bill requires the ART to have regard to guidance decisions, it does not mandate the ART follow the decisions when they concern a question of law. Professor Burns et al argued that this is unlikely to resolve the inconsistencies currently experienced in NDIS matters.[111]

2.101ASRC said that judicial members of the ART should, like ordinary members, be required to have regard to guidance decisions, stating that ‘a judicial member’s qualifications as a Judge should not exempt them from following Tribunal guidance decisions because this would undermine the usefulness of guidance decisions.’[112]

2.102Associate Professor Janina Boughey and Dr Ellen Rock stated that while guidance decisions may result in greater consistency in decision-making and more certainty for applicants, they may also result in injustice in individual cases if they are treated as binding precedent and if the facts of individual cases are not fully considered. They proposed that primary or secondary legislation require that guidance decisions:

• draw decision-makers’ attention to the fundamental requirement to properly consider the individual circumstances or merits of a case when making use of the guidance decision
• be phrased in non-prescriptive terms that allow decision-makers sufficient flexibility to permit individual circumstances to be recognised and to depart from the guidance decision in appropriate cases
• be made in a transparent manner
• be made following consultation, with the opportunity for all interested parties to put their perspective
• be regularly reviewed.[113]

Part 6: intelligence and security proceedings

2.103Part 6 sets out the special rules that would apply for the Intelligence and Security jurisdictional area in the ART. An intelligence and security decision is defined in clause 4 as:

• a criminal intelligence assessment
• an exempt security record decision
• a foreign acquisitions and takeovers decision
• a preventative detention decision
• a security assessment
• a security clearance decision, or
• a security clearance suitability assessment.
  104. Related provisions in Part 4, Division 7 would enable the Attorney-General to order that specific information or documents are not to be disclosed and the Attorney-General would be empowered to prevent a person from answering a question for public interest reasons. These reasons include where disclosure would prejudice security, defence or international relations.
  105. LCA noted that a non-disclosure certificate could have a significant impact on an individual’s right to natural justice[114] and suggested that:

… further consideration be given to enabling a court to mitigate procedural unfairness occasioned by provisions such as clauses 158 and 159 of the ART Bill by disclosing some or all of the material subject to a nondisclosure certificate after balancing the countervailing interests in disclosure.[115]

2.106LCA recommended that Part 6 and related provisions should be referred to the Independent National Security Legislation Monitor (INSLM) for review ‘to ensure that an appropriate balance is struck between national security, fairness and transparency objectives.’[116] LCA added:

This review should be complemented by the development of principles or guidance for relevant Commonwealth agencies regarding how broader administrative review objectives may best be achieved in the national security context.[117]

2.107LCA also recommended this review 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.’[118]

2.108AGD noted that the referral of matters to the INSLM, and the development of specific principles or guidance for agencies about broader administrative review objectives in a national security context is a matter for government.[119] However, the functions of the ARC will include assessing procedures and arrangements within the ART, including those within the Intelligence and Security jurisdictional area, to ensure they remain adequate and appropriate. The ARC could monitor and inquire into the processes outlined in Part 6 of the ART Bill and related matters, and could develop specific guidance about conducting reviews involving sensitive information.[120]

2.109AGD added that the leader of the intelligence and security jurisdictional area would be responsible for the efficient and effective operation of that area and for identifying and escalating systemic issues.[121]

Part 7: appeals and references of questions of law to the Federal Court

2.110Part 7 provides for appeals on questions of law and referrals of questions of law to be made to the Federal Court of Australia.

2.111LCA noted that certain migration decisions are precluded from being appealed on questions of law to the Federal Court of Australia in the AAT Act and schedule 2 of the Consequential Bill maintains current settings.[122] The Committee asked the Departments of Home Affairs and AGD to provide the rationale for this decision.

2.112The Department of Home Affairs noted its large litigation caseload and was concerned that people could use an appeal provision as a tool for delay within the courts.[123]

2.113AGD said that, more broadly, the referral of questions of law to the Federal Court of Australia is rarely used provision:

I think it's been 15 or 20 years since it's been used. There are some practical difficulties with referral of a question of law to the Federal Court which are associated with the fact that all relevant facts need to be agreed between the parties before such a referral could occur.[124]

2.114AGD said the GAP would provide a ‘… much more flexible model to get questions of law considered rapidly and escalated to the court following a guidance decision.’

Part 8: members and staff of tribunal

2.115Part 8 sets out the structure, membership and staffing of the ART, membership and staff functions, and the appointment and termination processes.

2.116AGD advised that work has commenced on recruitment so that, subject to the passing of the bills, the ART can begin operations later this year:

Work is already underway to recruit the foundation members for the tribunal. Selection processes for general members, senior members and deputy presidents are well advanced and have been conducted in accordance with the 2022 guidelines for appointments to the [AAT], including publicly advertised positions and suitability assessments conducted by independent panel.[125]

2.117There was support for there to be employment targets[126] or other provisions[127] to ensure that people with lived experience of disability are represented as members and staff of the ART.There was also support for amendments to Part 8 to require members only be assigned to the NDIS jurisdictional area where they have training, knowledge or experience relating to disability.[128] There was similarly support for the ARC to include as a member a person with disability, expertise in disability rights or lived experience of disability.[129]

2.118AGD noted that the senior leadership, including the President, Deputy Presidents and Chief Executive Officer and Principal Registrar, would be responsible for ensuring the ART continually pursues its objective to be accessible. According to AGD, the ART Bill ‘is not prescriptive as to how the Tribunal organises its business, as this is best left to those required to discharge the Tribunal’s objectives, with the best knowledge of its operations, and allowed to evolve in response to changing needs.’[130]

2.119AGD said the ART Bill was designed to enable people to be appointment with lived experience and said that merit-based assessment would take into account the need for the ART to draw on a diversity of skills, expertise, lived experience and knowledge. AGD said that regulations could be made to prescribe additional selection criteria, such as encouraging lived experience in certain roles.[131]

2.120AGD noted that the President may only assign a member to a jurisdictional area if they are satisfied that the member has appropriate skills, qualifications and experience to hear matters in that area. Furthermore, jurisdictional leaders must provide training, education and professional development to their members and this could include training in trauma-informed practice and cultural and disability competency units.[132]

2.121LCA recommended the clause 217, relating to the preclusion period restricting former members of the tribunal appearing as representative of a party to a proceeding or as an expert witness, be amended to better balance the risk of apprehended bias with the power of the ART to determine for itself who may, or may not, appear before it.[133]

Jurisdictional areas and lists

2.122Part 8, subdivision B sets out the structure of the ART, which would comprise eight jurisdictional areas with the ability for the President to create and abolish lists within them. These jurisdictional areas are:

• General
• Intelligence and Security
• Migration
• NDIS
• Protection
• Social Security
• Taxation and Business
• Veterans’ and Workers’ Compensation.
  123. The Explanatory Memorandum said these ‘jurisdictional areas improve on the divisional structure of the AAT by supporting more harmonised practices and procedures, and by providing greater flexibility in the assignment of member resources.[134]
  124. Mr William E Josephs OAM was concerned that combining veterans’ and workers’ compensation in a single jurisdictional area may adversely impact veterans. He argued for the findings of the Royal Commission into Defence and Veteran Suicide to be considered before any change is made in this area. Mr Josephs also called for the ART to allow for case appraisals, which the Veterans Review Board allows.[135]
  125. When asked why veterans’ and workers’ compensation were combined into a single jurisdictional area, AGD responded:

When we were setting these jurisdictional areas we were trying to think about a few different things, including the bulk of applications that are related in those areas and also the types of skills and expertise which are often drawn in. We were certainly advised that there's quite a significant overlap between members who have strengths in workers compensation-related work and members who have strengths in veterans-related work. It's already the case that there's quite a lot of cross-assignment in that regard.[136]

2.126AGD added that it was expected there would be separate veterans’ and workers compensation lists within the jurisdictional area.[137]

2.127Professor Groves was concerned there will be an ‘unfettered right’ for government to appeal veteran cases.[138] When asked about this, AGD said:

It's the case presently that any party to a proceeding can appeal from that proceeding, where those appeal rights exist. So a Veterans' Review Board matter can be appealed into the tribunal by either party, or any party. The reason for that is, obviously, that it's qualified by the model litigant obligations, which provide that government agencies need to think carefully about what litigation they're engaging with in proceedings, including the prospect of success and whether it's in the public interest to do so.

… [G]overnment appeals in any jurisdiction are … quite rare. But this is something which is permitted because it's preferable for a government agency, if they believe a decision to be wrong, to appeal that decision and get a ruling on it rather than continue to make decisions that are out of step with the tribunal decision … So there is a need for it; it's a relatively confined need and it is used sparingly. But the bill doesn't change the way that all operates.[139]

Merit-based appointments

2.128Clauses 205–208 of the ART Bill relate to merit-based appointments. AGD advised these clauses are based on sections of the Australian Human Rights Commission Act 1986 and corresponding provisions in anti-discrimination laws.[140] AGD said the ART Bill builds on these provisions by requiring all appointments, except for Judicial Deputy Presidents, to be based on a publicly advertised, merit-based appointment process. According to AGD, the bill supports this by:

• providing a definition of ‘merit-based’
• requiring the Minister to consult the President in relation to the operational needs and financial position of the Tribunal, as well as the relative number of members at each level
• allowing the Minister to establish assessment panels, and
• ensuring any additional requirements prescribed by the regulations (disallowable) (including those relating to assessment panels) must be followed.[141]
  129. According to the Explanatory Memorandum, the ART Bill would ‘enshrine a transparent and merit-based selection process for members to ensure independent and high quality decision-making within the Tribunal.’[142] There was strong support for this aim. However, some stakeholders raised concerns that, in its current form, the ART Bill will not ensure that merit-based appointments of tribunal members will be made transparently, which was the main reason for replacing the AAT.[143]

Assessment panels

2.130Clause 209 provides that the Minister may establish assessment panels to assess candidates for appointment as a member. Concerns were raised that, as drafted, the clause neither requires the Minister to establish an assessment panel, nor requires the Minister to appoint the candidates the assessment panel recommends.

2.131For example, the Accountability Round Table said the ART Bill ‘falls short of what is needed’ to ensure members are selected on merit, since there is no mention of who exactly is making these assessments.[144] The Accountability Round Table recommended:

• The use of independent selection panels should be required, not merely enabled.
• The Minister should be required to appoint only candidates assessed as suitable by the panels. If there are exceptional circumstances where this is not practicable the Minister should be able to make an appointment outside the panel process, but such an appointment must:

• meet all the other requirements of being merit-based, and
• only take effect after the Minister has tabled a statement of reasons for the appointment decision in the relevant House.[145]
  132. The Centre for Public Integrity said that, currently, ‘Australia’s best-practice legislated appointment standards are those relating to the appointment of non-executive Directors to the Boards of the Australian Broadcasting Corporation [ABC] and Special Broadcasting Service [SBS]’ and argued for the same level of standards to be applied to the ART.[146]
  133. MLC argued that ‘a better means of ensuring high-quality, publicly-respected appointments is by creating an appointments commission with remit covering both courts and tribunals.’[147]
  134. AGD responded to these concerns, stating that, ‘[u]nder the bill, the minister may only recommend a person for appointment to the Governor-General if they've been assessed as suitable through a process that is merit based.’[148] AGD added that further requirements relating to the selection of members through selection panels would be set out in regulations, which must be complied with and would be disallowable instruments and subject to Parliamentary scrutiny.[149]
  135. As earlier noted, AGD said that criteria for appointments could be made through regulation to encourage lived experience in certain roles. AGD suggested that setting out these criteria in regulation, rather than legislation, would allow some flexibility in the future.[150]
  136. AGD said part of the rationale for the ‘regulation model’ was that recruitment for the ART is a large and complex process, involving over a thousand applications for hundreds of positions, and that it was important to ensure that the process was workable and practical.[151] This was contrasted with the recruitment process for the ABC Board, where only a couple of appointments would usually be made each year.[152]

Political appointments would undermine the ART’s objectives

2.137Concerns were raised the ART Bill does not prevent political appointments, which would undermine the ART’s objectives. For example, The Australia Institute recommended the bill be amended to:

• introduce a cooling-off period before those with party roles can be appointed to the ART
• require that appointees:

• do not work as lobbyists;
• have not worked for a government department whose decisions are reviewed by the ART within the last four years; and
• are not serving members of the defence force, or currently employed or contracted by the government;

• require all appointees to the tribunal to resign political party memberships, and to resign from the ART before standing for party pre-selection;
• require publication of details of the qualifications and prior work experience for all members of the ART.[153]
  138. Similarly, the Accountability Round Table called for former members of the Commonwealth Parliament to be barred from being appointed to the ART for two years from the end of their term.[154]
  139. AGD said that the approach taken in the design of the ART is that ‘political affiliation is irrelevant’ and explained:

Anyone who goes through an appointment process has to declare a range of matters associated with their personal interests before they're appointed. That's a key mechanism. There are a range of critical conflict-of-interest provisions as well, in terms of the requirements on members once appointed.[155]

2.140AGD also said the ART would have more rigorous and robust performance and conduct appraisal and management processes than the AAT and noted that ‘a lot of the scope and incentives for political considerations to creep into the reappointment process’ had been removed.[156]

Merit not explicitly required for judicial Deputy Presidents

2.141Professor Groves noted that while there is a merit requirement for the appointment of the ART President, there is no similar requirement for the appointment provisions for judicial Deputy Presidents.[157]

2.142According to the Explanatory Memorandum, the requirements that the assessment process be merit-based, the position be publicly advertised and allowing rules to prescribe additional requirements were ‘not appropriate to apply to a position where all potential candidates are existing sitting Judges’.[158]

2.143AGD added ‘… we’re talking about a very limited pool of people who’ve already been assessed for appointment as a Judge … [i]t's just not something where a full external process is likely to be an effective way to identify candidates.’[159]

Requirement to have legal experience

2.144Clause 208(3) provides that senior members of the ART must either:

• have been enrolled as a legal practitioner for at least 7 years, or
• the Minister is satisfied that the person has at least 7 years’ specialised training or experience in a subject matter relevant to the jurisdiction of the ART.
  145. Clause 208(4) similarly provides that general members of the ART must either:
• have been enrolled as a legal practitioner for at least 5 years, or
• the Minister is satisfied that the person has at least 5 years’ specialised training or experience in a subject matter relevant to the jurisdiction of the ART.
  146. The requirement for members of the AAT to have legal experience was a key finding of the Callinan Review.[160]
  147. LCA were concerned that legal qualifications are not required for appointment as a senior member or general member in clause 208. LCA argued that ‘legal qualifications, and the years of enrolment involving experience in statutory interpretation, will be essential to enable the satisfactory performance of the functions of a senior member’.[161] LCA accepted that general members need not have legal qualifications but recommended there be a 75 per cent quota of legally qualified members at any one time in the ART.[162]
  148. The Australia Institute recommended the ART Bill be amended to:
• require ART decisions to always include at least one legally qualified member
• broaden the types of legal experience that make one eligible for appointment based on one’s legal experience but require a longer period of experience.[163]
  149. When asked why senior members could be appointed without legal qualifications, AGD responded:

… there is a strong value in having people with a wide range of expertise, including non-legal members, on the tribunal, and that extends to the senior member cohort. There are people who are, for example, experts in particular areas of legislation or who have other qualifications that the tribunal might need. It might be a medical qualification or an accounting qualification, all of which are very relevant to the exercising of the tribunal's powers. The feedback we did get is that the deputy president level is where, really, a legal qualification shouldn't be an optional thing.[164]

2.150AGD also noted a strong emphasis on professional development in the design of the ART and that multimember panels can be convened, which could draw on both the legal and non-legal experience of members:

If there's an issue that, for example, raises an incredibly complex legal issue but also requires a certain degree of medical expertise or certain experiential expertise that is critical to the decision then, at the president's discretion, a multimember panel can be established to consider that issue.[165]

Performance and conduct of members

2.151Clauses 201, 202 and 203 require the President to establish, and members to follow, a code of conduct and performance standard, and provides for investigations of possible breaches of these standards and for the termination of members.

2.152Professor Groves said the power given to the President to decide on code of conduct breaches by members should not be able to be delegated to members and staff.[166]

2.153Clause 242 requires the President’s annual report to the Minister to include various matters including any actions taken in relation to non-judicial members failing to uphold the code of conduct or meet the performance standard. LCA recommended clause 242 be amended to require ‘that the President’s report must not identify members who remain under investigation, or have been determined to have acted within the code of conduct or performance standard’ to promote procedural fairness.[167]

Tribunal advisory committee

2.154Clause 236 provides for a tribunal advisory committee to be established that consists of the President, the Principal Registrar, the jurisdictional area leaders, and other members or staff members nominated by the President. The tribunal advisory committee must be consulted by the President before making a practice direction, and before establishing or abolishing a list.

2.155LCA supports these provisions and recommended the President be also required to consult with the tribunal advisory committee before making rules.[168]

2.156AGD said the Minister must be satisfied that appropriate consultation has taken place before rules are made and it would be open to the President to consult with the tribunal advisory committee as part of this process.[169]

Identification of systemic issues

2.157The ART Bill establishes mechanisms to ensure that systemic issues arising in reviewable decisions are identified and reported publicly:

• The President will be required to identify and report on systemic issues arising in the caseload of the ART (clauses 193 and 242).
• Jurisdictional area leaders will be required to inform the President of systemic issues identified in relation to their jurisdictional areas (clause 197).
• The tribunal advisory committee will be required to oversee trends and patterns across, and systemic issues arising in, the jurisdictional areas (clause 236).
• The ARC will be required to inquire into and report on systemic issues related to the making of administrative decisions and the exercise of administrative discretions (clause 249).
  158. AGD said these stronger reporting obligations will help ensure transparency in government and ART decision-making and will be supported by a new case management system with more sophisticated reporting and analytics capability.[170]
  159. LCA recommends that, ‘following notification of systemic issues by the President or the ARC, the relevant Commonwealth agency and/or Minister should be required to provide a published response addressing any such systemic issue(s) within a specified timeframe.’[171]
  160. When asked why there is not a requirement in the ART Bill for the relevant minister to publicly respond to systemic issues raised by the ARC, AGD said it expects that the ARC will ‘engage with government on those issues as they see fit, rather than, within the bill, prescribing how that should be done.’[172] AGD said, ‘what we wouldn't want to do … is have a published response from government and then everyone goes their separate ways and considers it dealt with. What we'd rather do is create the conditions for a more dynamic situation where things can be addressed in practice.’[173] AGD added:

It's also not necessarily a conversation that's appropriate for a federal judge to have with government, in terms of the president of the tribunal, which is why we've placed that conversation with the council rather than at the tribunal level.[174]

Part 9 - Administrative Review Council

2.161Part 9 establishes the ARC.

2.162The Inspector-General of Taxation and Taxation Ombudsman (IGTO) welcomed the Council being reestablished by the ART Bill, describing it as ‘an important step to ensuring that administrative decision-making by Commonwealth agencies remains of high quality, achieves the purposes of relevant legislation and minimises disputes.’[175]

2.163IGTO noted that the membership of the ARC under the ART Bill is narrower than that prescribed by the AAT Act and ‘does not necessarily include a specialist taxation perspective to inform the ARC's work.’[176] IGTO suggested that either the standing membership of the ARC be expanded to address this, or that there be a requirement for the ARC ‘to consult with the relevant oversight and integrity bodies in relation to the matters it is examining. A requirement to consult may be included in the Bill, or alternatively adopted as part of the ARC's administrative processes when it is re-established.’[177] IGTO noted that ‘taxation matters only account for approximately 2per cent of the AAT's (and, likely the ART's) workload.’[178]

2.164LCA emphasised the need for:

• more specificity on the staffing requirements for the ARC
• Commonwealth officials to be SES Band 3 (Deputy Secretary) level or above to be eligible for appointment on the ARC
• the Secretaries of key agencies responsible for large volumes of decision-making to be represented on the ARC.[180]
  165. WLSA recommended ‘the Minister should be required to take into account the need for a diversity of backgrounds’ within the ARC to ensure the diversity of the Australian community is represented.[181]
  166. AGD advised the ART Bill was intended to provide certainty about key requirements for the composition, membership and staffing of the ARC, and enable an appropriate degree of flexibility in how the ARC organises itself and performs its functions.[182] AGDsaid the bill would:

… enable the composition of the Council to respond to changes in workload over time, and to incorporate expertise as required. For example, a particular inquiry may be assisted by appointment of a member with deep expertise in a specialist field of regulation, such as particular aspects of social policy, or artificial intelligence.[183]

2.167AGD said the ART Bill provides for the ARC to be assisted in performing their functions by AGD staff and explained that the AGD Secretary would be required to consult with the Chair of the ARC before making staff available. Staff performing services for the ARC would be subject to the direction of the ARC.[184]

2.168The Australian Government has committed $5.3 million over four years from2023–24, and $1.8 million per year ongoing, to re-establish the ARC and support its operation.[185]

Part 10 - Notice and information about administrative decision

2.169Part 10 provides that decision-makers must take reasonable steps to give notice of reviewable decisions to anyone whose interests are affected. This requirement also applies 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. A person whose interests are affected by a reviewable decision may request the decision-maker to give a statement of reasons for the decision. Applications can be made to the ART if a statement of reasons is not given or is inadequate.[186]

2.170Clauses 268, 270 and 271 provide for a person affected by a reviewable decision to request a statement of reasons from a decision-maker, or to apply to the ART to order that a statement of reasons be provided or to order that the decision-maker produce a further statement of reasons where the original reasons were inadequate. PIAC recommended these clauses be amended to close loopholes and avoid uncertainty in their application.[187] For example, the ART Bill does not specify how the provisions in these clauses apply where a person has also applied for review of the substantive decision by the ART. PIAC said similar ambiguity in the AAT Act has led to confusion and is undesirable.[188]

Part 11 - Miscellaneous

2.171Part 11 deals with several miscellaneous matters including provisions for granting legal and financial assistance and charging application fees.

Applications for legal and financial assistance

2.172Clause 294 provides that the Attorney-General may 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. LCA noted this ‘funding scheme can be considered one of last resort, with applicants generally required to be ineligible for assistance from a Legal Aid Commission or Community Legal Centre.’[189]

2.173LCA were concerned there are exceptions to clause 294 in the Consequential Bill, which exclude:

• social security and child support applicants, unless their matter is before the GAP for review
• migration and protection applicants.[190]
  174. LCA recommended clause 294 apply to all matters to ensure the ART ‘is accessible and can ensure an applicant’s right to representation, especially for vulnerable applicants in social security and migration matters.’[191]
  175. AGD noted that the legal and financial assistance available under this provision is a small, discretionary program managed by AGD, and said both migration and social security applicants are already existing priorities in legal assistance, subject to merit and means, through the National Legal Assistance Partnership.[192]

Application fees

2.176Division 6 provides for the Minister to make rules about a range of matters, including the cost of application fees.[193]

2.177Concerns were raised that the cost of application fees may undermine the objectives of the bills. For example, LCA emphasised:

• Given that a central principle of the administrative law system is to protectindividuals against unfair or arbitrary use of public power, there is a need toensure application fees are not excessive and incorporate meaningfulhardship waiver options for applicants.
• Unjustified increases to fees could dissuade a potential applicant from seekingreview of a decision or from obtaining advice about a possible review whenthe costs of obtaining legal advice are added to the application fee.
• Non-payment of fees should not be used to determine the jurisdiction of theTribunal to dispose of a matter. Where a fee has not been paid, whether dueto the fault of a representative or applicant, the new administrative reviewbody should provide a period for the applicants to rectify the fault, rather thanautomatically determining an application to be invalid.[194]
  178. LCA recommended:
• The ART Bill should facilitate the harmonisation of the review application fee across jurisdictional areas. In the interim, the application fee for migration and protection visa decisions, set by the Migration Regulations, should be reviewed as a matter of priority.
• Where an application to the Tribunal is successful, any application fees paid should be refunded.[195]
  179. Currently, there is no AAT application fee for workers compensation, NDIS, veterans’ affairs, child support and Centrelink matters. Some tax decision matters attract a $100 fee, while small business taxation decision matters cost $543. FOI, commercial, national security, and general decision matters cost $1,011, while protection visa decision matters cost $1,940, and migrant visa decision matters cost $3,153.[196]
  180. AGD advised:

The Government is considering what fee arrangements, including concessions, waivers and refunds, should be in place for the Tribunal. As is the case with fees for applications to the AAT, the government expects that a number of cohorts will continue to be exempt from being required to pay an application fee or will be eligible to pay a reduced fee.[197]

Committee comment

2.181It is clear the AAT lost the confidence of the Australian public and there is broad support for establishing the new administrative review regime with the ART Bill’s stated objectives. Through an extensive consultation process, the Attorney-General, supported by the Administrative Review Taskforce, has designed a self-correcting system with numerous backstops to ensure that government and ART decisions are made correctly and transparently, that defective decision-making by government can be held to account and where systemic issues are escalated and responded to effectively.

2.182Given the many elements of the ART Bill that support transparency and the ART’s ability to self-correct, the inclusion of a statutory review clause is arguably unnecessary. The ARC will be independent from government and will monitor and support the integrity of the administrative review system. Within the ART itself, the tribunal advisory committee and the GAP will review the operation of the ART, respond to emerging issues and help ensure correct and consistent decisions are made ‘on the merits’. The new code of conduct and performance standard requirements, stronger reporting obligations and a requirement for professional development for members and staff further support the bill’s objectives.

2.183While there were concerns raised that there will not be an automatic second-tier review for social security and family assistance matters, as the AAT currently provides, the Committee is satisfied that the best elements of first and second tier review have been incorporated into the ART and that systemic issues will be escalated. The new model of review will be accessible to allow people to resolve their matters as quickly as possible without unnecessary formality. The GAP will then provide a critical safeguard to deal with material errors of law and fact. That said, and as the Government clearly recognises, it is important that the new Tribunal enjoys the confidence of users of the social security system – and the confidence of those who advocate for those users, including organisations like National Legal Aid. The Committee therefore encourages the Government to continue to engage with – and, to the extent possible, address – the concerns that have been raised by some submitters in relation to the proposed changes to the existing two-tier merits review structure for social security and family assistance decisions.

2.184The Committee understands that certain rules and procedures around the merit-based selection of candidates will be set out in regulation and supports this approach. There are several reasons for this:

• The ART Bill requires that the Attorney-General may only recommend a person for appointment to the Governor-General if they have been assessed as suitable through a merit-based process. A very limited scope for ministerial discretion, which the bill provides, is necessary. It will allow some flexibility, for example, to appoint members with valuable lived experience, who may otherwise be ineligible.
• The regulations, which will further prescribe the merit-based selection process, must be adhered to. Setting out the relevant rules and procedures, for example about assessment panels, in regulation provides greater flexibility to fine-tune the selection process to respond to emerging needs and issues within the ART in the future. The regulations, and any future changes to these, will be subject to Parliamentary scrutiny as disallowable instruments.
• The Committee was not persuaded by comparisons between selecting board members for the ABC and SBS, and what will be Australia’s largest administrative review body. They are very different entities, with different requirements and obligations on members, and the scale of recruitment required for the ART will be significantly larger and more complex than selecting a handful of board members each year. The ART Bill strikes an appropriate balance has been struck between ensuring merit-based appointments and having an assessment process that is workable.
• To ensure the ART meets its objectives, it will require members with significant and relevant lived experience. The ART Bill allows for multi-member panels to conduct merits review, thereby drawing on members with legal experience and those with lived experience of the relevant jurisdictional area. The requirements for senior members and general members of the ART to have been enrolled as a legal practitioner for at least 7 and 5 years, respectively, or have at least 7and5years, respectively, specialised training or experience in a subject matter relevant to the jurisdiction of the ART will ensure that quality candidates are selected with a diversity of skills.
• Once members are selected, they will be required to meet code of conduct and performance standards and to undertake professional development. There are provisions for investigations of possible breaches of these standards and for the termination of members.
  185. That said, the Committee acknowledges that a number of submitters have suggested that the ART Bill should require the use of a selection panel in the appointments process. While this is not strictly necessary (given the Government has indicated that such matters can and will be provided for by legally-binding regulations), the Committee encourages the Government to give further consideration to adopting that suggestion.
  186. There were several suggestions for further rules, procedures and guidance to be set out in regulation, such as those relating to guidance decisions, and the Committee encourages the Attorney-General to consider these when preparing regulation.
  187. A range of other concerns were raised that would benefit from further scrutiny and consideration:
• concerns that GAP decisions on questions of law do not have to be followed by tribunal members
• whether an appropriate balance has been struck between national security, fairness and transparency objectives
• several minor drafting issues identified by LCA and others.
  188. The provision of legal aid, particularly to vulnerable applicants, will be important to the ART’s success in meeting its policy objectives. The ART represents a re-imagining of the administrative review system and there will be a need to support applicants, particularly in the initial period. The Committee is aware that the legal services that support applicants to the AAT are spread thin, and there may be a limited capacity for services to support any further demand generated by the transition from the AAT to the ART. The Committee strongly supports additional funding to be provided for legal aid through the National Legal Assistance Partnership.
  189. The Committee considers that the ART Bill should pass the House without amendment, though encourages the Senate Legal and Constitutional Affairs Legislation Committee to give further consideration to the matters raised by submitters and in this report as part of its inquiry.

2.190The Committee recommends the House of Representatives pass the Administrative Review Tribunal Bill 2023.

Footnotes

[1]Administrative Review Tribunal Bill 2023 (ART Bill), Explanatory Memorandum, pages 2 and 6.

[2]ART Bill, clause 3.

[3]ART Bill, Explanatory Memorandum, page 2.

[4]Law Council of Australia (LCA), Submission 28, pages 13-14. LCA recommended a related amendment to clause 54 in Part 4.

[5]LCA, Submission 28, page 15.

[6]LCA, Submission 28, page 15.

[7]Centre for Public Integrity, Submission 17, page 7.

[8]Ms Sara Samios, First Assistant Secretary, Administrative Review Taskforce, Attorney-General’s Department (AGD), Committee Hansard, 9February 2024, page 9.

[9]Ms Samios, AGD, Committee Hansard, 9 February 2024, page 16; Ms Joanna Virtue, Assistant Secretary, Administrative Review Taskforce, AGD, Committee Hansard, 9 February 2024, page 16.

[10]Ms Samios, AGD, Committee Hansard, 9 February 2024, page 16; Ms Virtue, AGD, Committee Hansard, 9February 2024, page 19.

[11]Ms Virtue, AGD, Committee Hansard, 9 February 2024, page 19.

[12]For example: subsection 67(8) of the Safety, Rehabilitation and Compensation Act 1988; section 357 of the Military Rehabilitation and Compensation Act 2004.

[13]ART Bill, Explanatory Memorandum, page 104.

[14]LCA, Submission 28, page 17.

[15]AGD, Submission 6.1, page 2.

[16]LCA, Submission 28, pages 17-18.

[17]LCA, Submission 28, page 17.

[18]LCA, Submission 28, page 19.

[19]Public Interest Advocacy Centre (PIAC), Submission 24, page 12.

[20]AGD, Submission 6.1, page 2.

[21]LCA, Submission 28, page 20.

[22]LCA, Submission 28, page 20; Refugee Advice and Casework Services, Submission 30, page 5; ProfessorMary Crock, Submission 9, page 6. See also Immigration Advice and Rights Centre, Submission23, page 2; Kaldor Centre Data Lab, Submission 11, page 7; Asylum Seeker Resource Centre (ASRC), Submission 14, page 7.

[23]Women’s Legal Services Australia (WLSA), Submission 31, page 9.

[24]AGD, Submission 6.1, page 4.

[25]See Chapter 3.

[26]National Legal Aid (NLA), Submission 26, page 9.

[27]AGD, Submission 6.1, page 3.

[28]PIAC, Submission 24, page 8.

[29]PIAC, Submission 24, page 9.

[30]AGD, Submission 6.1, pages 3-4.

[31]LCA, Submission 28, page 20.

[32]LCA, Submission 28, pages 21 and 25.

[33]Ms Virtue, AGD, Committee Hansard, 9 February 2024, page 20.

[34]LCA, Submission 28, pages 21 and 23.

[35]ART Bill, Explanatory Memorandum, page 15.

[36]PIAC, Submission 24, page 5.

[37]Professor Kylie Burns, Professor Susan Harris Rimmer and Dr Eloise Hummell, Submission 12, page 3.

[38]AGD, Submission 6.1, page 4.

[39]AGD, Submission 6.1, page 4.

[40]Mr Mark Carey, Submission 2, page 6.

[41]JFA Purple Orange, Submission 10, pages 15-16; Professor Burns et al, Submission 12, page 3.

[42]Disability Advocacy Network Australia (DANA), Submission 20, page 2; PIAC, Submission 24, page 3 endorses these views.

[43]JFA Purple Orange, Submission 10, pages 11-12.

[44]Professor Burns et al, Submission 12, pages 4-5.

[45]AGD, Submission 6.1, page 5.

[46]AGD, Submission 6, page 10

[47]PIAC, Submission 24, page 11.

[48]PIAC, Submission 24, page 11.

[49]PIAC, Submission 24, pages 7-8.

[50]PIAC, Submission 24, page 8.

[51]Ms Samios, AGD, Committee Hansard, 9 February 2024, page 17.

[52]Ms Samios, AGD, Committee Hansard, 9 February 2024, page 17.

[53]Ms Samios, AGD, Committee Hansard, 9 February 2024, page 17.

[54]Professor Matthew Groves, Submission 1, page 4.

[55]Mr Jonathan Ta and Ms Josie Mortimer, Submission 5, pages 1-5.

[56]Ms Samios, AGD, Committee Hansard, 9 February 2024, page 18.

[57]Ms Virtue, AGD, Committee Hansard, 9 February 2024, page 18.

[58]Existing provisions in the Migration Act relating to whether applicants may be represented are being repealed by the Consequential Bill. See AGD, Submission 6.1, page 11.

[59]LCA, Submission 28, page 22.

[60]LCA, Submission 28, page 23.

[61]AGD, Submission 6.1, pages 6-7.

[62]AGD, Submission 6.1, page 7.

[63]JFA Purple Orange, Submission 10, pages 21- 22.

[64]Ms Virtue, AGD, Committee Hansard, 9 February 2024, page 11.

[65]Ms Virtue, AGD, Committee Hansard, 9 February 2024, page 11.

[66]See, for example, People with Disability Australia, Submission 22, pages 3-4; WLSA, Submission 31, pages6-7.

[67]DANA, Submission 20, pages 3-4.

[68]PIAC, Submission 24, page 13.

[69]LCA, Submission 28, page 23.

[70]Ms Samios, AGD, Committee Hansard, 9 February 2024, page 10.

[71]LCA, Submission 28, page 24.

[72]WLSA, Submission 31, page 14.

[73]WLSA, Submission 31, page 14.

[74]Ms Samios, AGD, Committee Hansard, 9 February 2024, page 11.

[75]ART Bill, Explanatory Memorandum, page 107.

[76]ART Bill, s 121.

[77]ART Bill, Explanatory Memorandum, page 107.

[78]ART Bill, Explanatory Memorandum, page 107.

[79]See, for example, Migration Institute of Australia, Submission 27, pages 2-3; DANA, Submission 20, page 1; Professor Crock, Submission 9, page 3.

[80]AGD, Submission 6, page 8. Other examples of relevant legislation includethe A New Tax System (Family Assistance) (Administration) Act 1999, Child Support (Registration and Collection) Act 1988, Paid Parental Leave Act 2010, Social Security (Administration) Act 1999, and Student Assessment Act 1973.

[81]AGD, Submission 6, page 8. See also MLC, Submission 8, page 3; Associate Professor Janina Boughey and Dr Ellen Rock, Submission 13, page 5.

[82]AGD, Submission 6, page 8.

[83]Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023, Explanatory Memorandum, page 115.

[84]AGD, Submission 6, page 10.

[85]AGD, Submission 6, page 10.

[86]See, for example, Economic Justice Australia (EJA), Submission 7, page 10; Monash Law Clinics (MLC), Submission 8, page 3; LCA, Submission 28, page 26.

[87]NLA, Submission 26, pages 5-6.

[88]EJA, Submission 7, pages 1-2.

[89]EJA, Submission 7, page 6.

[90]EJA, Submission 7, page 2.

[91]EJA, Submission 7, pages 6-7.

[92]NLA, Submission 26, pages 6-7.

[93]Ms Samios, AGD, Committee Hansard, 9 February 2024, page 14.

[94]Ms Samios, AGD, Committee Hansard, 9 February 2024, pages 14-15.

[95]ART Bill, section 122.

[96]ART Bill, section 123.

[97]ART Bill, section 122. See also ART Bill, Explanatory Memorandum, page 108.

[98]ART Bill, section 124. See also ART Bill, Explanatory Memorandum, page 110.

[99]Ms Virtue, AGD, Committee Hansard, 9 February 2024, page 5.

[100]Ms Samios, AGD, Committee Hansard, 9 February 2024, page 5.

[101]MLC, Submission 8, page 3.

[102]NLA, Submission 26, page 7.

[103]NLA, Submission 26, page 7.

[104]NLA, Submission 26, page 7.

[105]Professor Crock, Submission 9, page 3.

[106]Professor Crock, Submission 9, page 3.

[107]EJA, Submission 7, page 10.

[108]Associate Professor Janina Boughey and Dr Ellen Rock, Submission 13, pages 3–4.

[109]ASRC, Submission 14, page 16.

[110]ASRC, Submission 14, page 15.

[111]Professor Burns et al, Submission 12, page 6.

[112]ASRC, Submission 14, page 14.

[113]Associate Professor Boughey and Dr Rock, Submission 13, page 5.

[114]LCA, Submission 28, page 31.

[115]LCA, Submission 28, page 32.

[116]LCA, Submission 28, page 34.

[117]LCA, Submission 28, page 34.

[118]LCA, Submission 28, page 34.

[119]AGD, Submission 6.1, page 7.

[120]AGD, Submission 6.1, pages 7-8.

[121]AGD, Submission 6.1, pages 7-8.

[122]LCA, Submission 28, page 34.

[123]Mr Anton Bockwinkel, Assistant Secretary, Migration and Citizenship Law Branch, Department of Home Affairs, Committee Hansard, 9 February 2024, page 15.

[124]Ms Samios, AGD, Committee Hansard, 9 February 2024, page 15.

[125]Ms Samios, AGD, Committee Hansard, 9February 2024, page 2.

[126]JFA Purple Orange, Submission 10, pages 13-14.

[127]Professor Burns et al, Submission 12, page 3.

[128]PIAC, Submission 24, page 12; Professor Burns et al, Submission 12, page 3.

[129]Professor Burns et al, Submission 12, page 3.

[130]AGD, Submission 6.1, page 8.

[131]Ms Samios, AGD, Committee Hansard, 9 February 2024, page 9; Ms Virtue, AGD, Committee Hansard, 9February 2024, page 9.

[132]AGD, Submission 6.1, page 6.

[133]LCA, Submission 28, pages 40-41.

[134]ART Bill, Explanatory Memorandum, page 158.

[135]Mr William E Josephs OAM, Submission 3, pages 1-2.

[136]Ms Samios, AGD, Committee Hansard, 9 February 2024, page 9.

[137]Ms Samios, AGD, Committee Hansard, 9 February 2024, page 9.

[138]Professor Groves, Submission 1, page 3.

[139]Ms Virtue, AGD, Committee Hansard, 9 February 2024, page 10.

[140]AGD, Submission 6, page 4.

[141]AGD, Submission 6, page 4.

[142]ART Bill, Explanatory Memorandum, page 4.

[143]Accountability Round Table, Submission 15, pages 1-2; The Australia Institute, Submission 19, page 1; Centre for Public Integrity, Submission 17, page 7; LCA, Submission 28, page 44; ASRC, Submission 14, page 16.

[144]Accountability Round Table, Submission 15, page 1.

[145]Accountability Round Table, Submission 15, page 2. See also Centre for Public Integrity, Submission 17, page 7; The Australia Institute, Submission 19, page 1; LCA, Submission 28, page 44.

[146]Centre for Public Integrity, Submission 17, page 3.

[147]MLC, Submission 8, page 2.

[148]Ms Samios, AGD, Committee Hansard, 9 February 2024, page 6.

[149]Ms Samios, AGD, Committee Hansard, 9 February 2024, page 6.

[150]Ms Virtue, AGD, Committee Hansard, 9 February 2024, page 9.

[151]Ms Samios, AGD, Committee Hansard, 9 February 2024, page 6.

[152]Ms Virtue, AGD, Committee Hansard, 9 February 2024, page 6.

[153]The Australia Institute, Submission 19, pages 1-2.

[154]Accountability Round Table, Submission 15, page 2.

[155]Ms Samios, AGD, Committee Hansard, 9 February 2024, page 7.

[156]Ms Virtue, AGD, Committee Hansard, 9 February 2024, page 7.

[157]Professor Groves, Submission 1, page 4.

[158]ART Bill, Explanatory Memorandum, page 171.

[159]Ms Samios, AGD, Committee Hansard, 9 February 2024, page 8.

[160]The Hon Ian Callinan AC QC, Review: section 4 of the Tribunals Amalgamation Act 2015 (Cth), July 2019, Attorney-General’s Department, page 9.

[161]LCA, Submission 28, page 38.

[162]LCA, Submission 28, page 39.

[163]The Australia Institute, Submission 19, page 1.

[164]Ms Samios, AGD, Committee Hansard, 9 February 2024, page 8.

[165]Ms Samios, AGD, Committee Hansard, 9 February 2024, page 8.

[166]Professor Groves, Submission 1, page 5.

[167]LCA, Submission 28, page 35.

[168]LCA, Submission 28, page 37.

[169]AGD, Submission 6.1, page 8.

[170]Ms Samios, AGD, Committee Hansard, 9 February 2024, page 16.

[171]LCA, Submission 28, page 37.

[172]Ms Virtue, AGD, Committee Hansard, 9 February 2024, page 19.

[173]Ms Virtue, AGD, Committee Hansard, 9 February 2024, pages 19-20.

[174]Ms Samios, AGD, Committee Hansard, 9 February 2024, page 20.

[175]Inspector-General of Taxation and Taxation Ombudsman (IGTO), Submission 4, page 2.

[176]IGTO, Submission 4, page 3.

[177]IGTO, Submission 4, page 4.

[178]IGTO, Submission 4, page 4.

[179]IGTO, Submission 4, pages 1-2.

[180]LCA, Submission 28, page 47-48.

[181]WLSA, Submission 31, page 12.

[182]AGD, Submission 6.1, page 8.

[183]AGD, Submission 6.1, page 9.

[184]AGD, Submission 6.1, page 9.

[185]AGD, Submission 6.1, page 9.

[186]ART Bill, clause 265.

[187]PIAC, Submission 24, page 10.

[188]PIAC, Submission 24, page 10.

[189]LCA, Submission 28, page 49.

[190]LCA, Submission 28, page 49.

[191]LCA, Submission 28, page 50.

[192]Ms Samios, AGD, Committee Hansard, 9 February 2024, page 14.

[193]ART Bill, Explanatory Memorandum, page 254.

[194]LCA, Submission 28, page 51.

[195]LCA, Submission 28, page 52.

[196]These fees are as at 2023 and some are indexed to inflation. Fees can be reduced to $100 for concession holders, those under 18, recipients of legal assistance, those in detention, or in financial hardship. Fee reduction is not available for migration and protected visa matters. See AGD, Administrative Reform Issues Paper, April 2023, pages 55-56.

[197]AGD, Submission 6.1, page 9.