The ART of Merits Review: Structural and Operational Flexibility
Whitlam Institute, Melbourne
If you say 'AAT' and 'ART' quickly, they sound almost the same. However, it would be a mistake to regard the Administrative Review Tribunal ('ART' or 'Tribunal') as a rebadged Administrative Appeals Tribunal ('AAT'). In fact, there are some fundamental differences. They are too many to mention. In the next 20 minutes, I will focus on four features of the ART which provide a greater measure of structural and operational flexibility than the AAT.
Those features are as follows:
- Jurisdictional Areas, Lists and assignment of members.
- Conferral of significant powers on registrars.
- The Guidance and Appeals Panel ('GAP').
- Flexibility in managing individual cases.
Before looking at the first of these issues, I need to establish some context.
There are currently before Federal Parliament the Administrative Review Tribunal Bill 2023 ('ART Bill') and a number one and number two Consequential and Transitional Provisions Bill.
I will be providing you with a high-level summary of key features of the Bills in their current form. It is a matter for Parliament to decide whether to amend the Bills and, indeed, whether to pass them. Likewise, the policies underpinning the various provisions of the Bills are matters for the Government. For obvious reasons, I am not going to comment either on the Government policies or the Parliamentary process.
For ease of reference, I will assume that the three Bills will be enacted in their current form and refer to them as Acts.
Jurisdictional Areas, Lists and assignment of members
One of the most significant structural reforms will be the abolition of the current divisional structure of the AAT in favour of grouping cases in jurisdictional areas and lists in the ART.
The AAT currently has nine Divisions, namely: (1) General; (2) Migration and Refugee; (3) National Disability Insurance Scheme; (4) Security; (5) Social Services and Child Support; (6) Taxation and Commercial; (7) Small Business Taxation; (8) Freedom of Information; and (9) Veterans' Appeals.
Some of the divisions hear matters which have always been heard and determined in the AAT. Others were added following the introduction of new Commonwealth government schemes, such as the NDIS. Others were added to the AAT's jurisdiction following the amalgamation of the AAT with the Migration Review Tribunal ('MRT'), Refugee Review Tribunal ('RRT') and Social Security Appeals Tribunal ('SSAT') in 2015.
The Migration and Refugee Division has largely the same jurisdiction as the old MRT and RRT. The Social Services and Child Support Division largely has the same jurisdiction as the old SSAT.
By contrast, section 196(1) of the ART Act establishes eight jurisdictional areas, namely: (1) General; (2) Intelligence and Security; (3) Migration; (4) National Disability Insurance Scheme; (5) Protection; (6) Social Security; (7) Taxation and Business; and (8) Veterans' and Workers' Compensation. Jurisdictional areas are areas of similar types of cases in which the ART will exercise jurisdiction.
The Attorney-General can appoint a deputy president as jurisdictional area leader for one or more jurisdictional areas.
A key change in the ART Act is the conferral upon the President the power under section 196(2) to establish one or more lists as subareas within a jurisdictional area. Such lists do not exist in the AAT. The concept of a list is well known to some State and Territory civil and administrative tribunals. They are groupings of cases within the jurisdiction of a tribunal.
Section 198(1) of the ART Act empowers the President to assign a deputy president or a senior member to lead one or more lists. Section 196(4) provides that the President may determine the jurisdictional area or list in which the Tribunal's powers are to be exercised. Section 199(3) provides that the President may assign members (other than the President or deputy presidents) to one or more jurisdictional areas. The President and deputy presidents are assigned to all jurisdictional areas of the ART.
The President's power to create lists and to decide the lists in which cases before the ART are to be heard and which members can hear cases in each list is a fundamental shift from the present position. Currently, legislation requires that certain matters be heard within a particular Division and in accordance with particular procedures, and that the Attorney-General has the power to decide to which Division senior members and general members are assigned. For some Divisions, the Attorney-General must consult the Minister administering legislation falling within those Divisions before assigning members to those Divisions.
These arrangements result in some inflexibility and delay and have contributed to the AAT's inability to operate as a fully unified national body. Some of the feedback that the Attorney-General's Department received during the consultation process for the ART was to the effect that in some respects the AAT operates in silos due to the structures that were introduced as part of the 2015 amalgamation. The arrangements do not always facilitate the flexible and quick movement of members between divisions in response to increased need or caseloads.
The ART Act provides an opportunity to move away from the historical silos and establish a national Tribunal in which processes are as uniform as possible, cases are allocated to jurisdictional areas on a functional basis and members are allocated cases flexibly to meet the changing operational needs of the Tribunal.
The President will now have the flexibility to rearrange the ART's caseloads into groupings with similar subject matters, procedures and member skills, in contrast to the current system where historical and other reasons determine in which Division matters are heard. The President can also alter these arrangements in response to changes in volumes of caseloads and legislation or to provide greater diversity of work for members.
As part of the planning for the transition to the ART, I am giving careful consideration to the lists to be created and the cases to be allocated to each list. For example, at present, some decisions made under the Migration Act 1958 are heard in the Migration and Refugee Division, whereas others are heard in the General Division. I am examining whether some matters presently heard in the General Division should be heard in a list in the Migration Jurisdictional Area.
By way of further example, for historical reasons child support cases are heard together with social security cases in the Social Services and Child Support Division. That is so even though the former rely upon adversarial processes whereas the latter rely upon inquisitorial processes. Many child support matters involve complex financial statements, tax returns and trust deeds. However, few members assigned to the Taxation and Commercial Division are cross assigned to the Social Services and Child Support Division to hear complex child support cases.
At present, if the workload of the Tribunal in a particular Division increases beyond the capacity of the members assigned to that Division, the President must request the Attorney-General to cross assign other members to that Division. Because of the consultation requirements, a cross-assignment may take some time.
To avoid these difficulties, where members have the skills, qualifications and experience in all areas of the Tribunal's work, one option is to assign them to all jurisdictional areas. A direction could then be given that those members must work primarily, but not exclusively, in such list or lists as are nominated by a designated list leader from time to time.
I am confident that the President's ability to allocate cases to lists and to assign members to jurisdictional areas will go a long way to removing the current silos and promoting a uniform national tribunal.
The broad power conferred on the President by section 36 of the ART Act to make practice directions will also facilitate this process.
At present, the AAT has a general practice direction and separate practice directions for the Freedom of Information Division, the Migration and Refugee Division, the National Disability Insurance Scheme Division, the Small Business Taxation Division and the Taxation & Commercial Division. There is also a practice direction for child support matters in the Social Services and Child Support Division.
My aim is to have a generally applicable practice direction applying across the jurisdictional areas with additional jurisdictional area specific practice directions kept to a minimum. Because the GAP is unique, there will have to be a separate practice direction to deal with it. The practice directions will be drafted in a way that recognises the need for the ART's processes to be as uniform, flexible and accessible as its resources and legislative framework permit.
Another feature of the ART that will assist in achieving operational flexibility are the agency opt out provisions in sections 60 to 64 of the ART Act. With certain exceptions, decision-makers will be able to opt out of participating in specific kinds of ART proceedings. However, they can seek permission from the ART to participate in a particular proceeding of that kind and the ART will have power to compel them to do so.
Conferral of significant powers on registrars
In terms of operational flexibility, the ART Act gives the President greater power to enable APS employees to exercise certain powers.
Under section 285 of the ART Act, the President can authorise registrars, who are APS employees, to exercise certain powers. Those powers are broader than those that conference registrars of the AAT, who are also APS employees, can be authorised to exercise. The expanded powers include the following:
- Extending the time for making an application for review.
- Determining whether a person's interests are affected by the decision to be reviewed, and whether it is appropriate for them to become a party.
- Shortening or extending the time for the decision-maker to give the Tribunal and any other party documents relevant to the review.
- Conducting directions hearings.
- Making a decision by consent.
- Dismissing an application for review where:
- the parties consent; or
- the Tribunal cannot review a decision; or
- the applicant fails to pay an application fee within the prescribed period; or
- the applicant fails to proceed with an application or comply with the ART Act or an order of the Tribunal.
The President can limit the circumstances in which a power may be exercised by a registrar (section 287).
Currently in the AAT, conference registrars do exercise some of these powers. However, most of these powers are exercised by members. It is anticipated that, in the ART, registrars will be authorised to perform some of the routine or non-contentious procedural functions currently performed by members and thereby free up members to focus on hearing and determining contested cases.
The Guidance and Appeals Panel
One of the most significant changes in the ART Act is the establishment of the GAP within the ART by part 5 of the ART Act.
The GAP will be able to hear proceedings at first instance or conduct a second review after an initial decision is made by the ART. The President is responsible for deciding which cases are heard by the GAP and the power to do so is expressed in discretionary terms. The power resembles the power of a Court of Appeal to grant leave to appeal.
There are two circumstances in which the President will be able to refer a proceeding to the GAP.
The first circumstance relates to an application for review which has not yet been heard by the ART. Under section 122 of the ART Act, the President may refer the application for review for hearing and determination by the GAP at first instance. Before doing so, the President must be satisfied that the application for review raises an issue of significance to administrative decision-making and it is in the interests of justice to refer the application to the GAP. In deciding whether to refer an application for review to the GAP for first instance review, the President must have regard to the circumstances of the parties to the proceeding.
The second circumstance relates to a substantive decision made by the ART in relation to an application for review. Under section 128 of the ART Act, the President may refer the ART's decision for a second review by the GAP. Before doing so, the President must be satisfied of one of two requirements.
The first requirement is that the ART's decision raises an issue of significance to administrative decision-making. The second requirement is that the ART's decision may contain an error of fact or law that materially affected the decision. Once again, in deciding whether to refer a decision of the ART to the GAP for a second review, the President must have regard to the circumstances of the parties to the proceeding.
A review of an ART decision by the GAP is wider than an appeal to the Federal Court because the former involves a second merits review whereas the latter is confined to errors of law. In this regard, while the GAP has the word 'appeals' in its name, the word is a misnomer because the GAP conducts a second merits review, and will not confine itself to any alleged errors in the original ART decision. The GAP can consider all the evidence – including new evidence – and make findings of fact which differ from the findings of the ART in its first instance decision.
Significantly, the establishment of the GAP does not remove the parties' right to appeal to the Federal Court on a question of law. The rights created in relation to the GAP are in addition to, and not in lieu of, the right to appeal to the Federal Court.
Under section 40 of the ART Act, when a matter is referred to the GAP on the basis that it raises an issue of significance to administrative decision-making, the GAP must be constituted by two or three members one of whom is the President or a deputy president. Under section 42, when an ART decision is referred to the GAP on the sole basis that it may contain a material error of fact or law, the GAP will be able to be constituted by one, two or three members. However, in such a case the presiding member must be more senior than the most senior member who was involved in making the original ART decision.
It should be noted that not all ART decisions can be referred to the GAP. Certain decisions, including decisions made under the Freedom of Information Act 1982,[1] some decisions reviewing decisions made by the Veterans' Review Board[2]and decisions made in the Intelligence and Security jurisdictional area will not be able to be referred to the GAP. Further, under section 123(4) of the ART Act, decisions of the GAP and decisions made by the ART constituted by a judge will not be able to be referred to the GAP.
Another new feature of the ART, which is introduced by section 109 of the ART Act, is the designation of some decisions of the GAP as Tribunal guidance decisions. If the President refers a matter to the GAP either at first instance or on second review on the basis that it raises an issue of significance to administrative decision-making, the ART's decision will be deemed to be a Tribunal guidance decision unless the President declares that it is not such a decision.
Under section 110 of the ART Act, when making a decision, a Tribunal member (other than the President or a judicial deputy president) must have regard to any Tribunal guidance decision that the member considers raises similar facts or issues to the issues raised by the proceeding before the member. Section 110 may be seen as introducing a modified version of the doctrine of precedent.
The GAP allows the President flexibility to respond to issues of administrative significance arising in the caseload of the Tribunal. When the President is faced with an issue of administrative significance, the President can refer the matter to the GAP for determination. The resultant decisions of the GAP will then become well known and influential in future decision-making.
Flexibility in managing individual cases
There are many provisions in the ART Act which emphasise that the ART must manage individual cases flexibly and have regard to the circumstances of the parties. This reflects the reality that many applicants are vulnerable and have special needs in accessing an effective merits review by the ART.
The need for flexibility and accessibility is enshrined in the ART's objective in section 9 of the ART Act. That section requires the ART to provide an independent mechanism of review that is accessible and responsive to the diverse needs of parties to proceedings.
This requirement is reinforced by section 51(1) of the ART Act, which provides that, as far as possible, the Tribunal must conduct each proceeding in a way that is accessible for the parties to the proceeding, taking into account the needs of the parties. The requirement is also reinforced by sections 122(2) and 128(4), which require the President to have regard to the circumstances of the parties to the proceeding in deciding whether to refer a matter to the GAP.
Conclusion
There are other aspects of ART Act which promote structural and operational flexibility. Such flexibility promotes efficiency in the processing and finalisation of cases. However, the provisions to which I have just referred ensure that such efficiency is achieved without losing sight of the need to cater for the special and diverse needs of parties seeking redress from the Tribunal.
Thank you very much.
[1] See item 60 of sch 4 to the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023 ('First Consequential and Transitional Act'), which amends s 57A of the Freedom of Information Act.
[2] See item 14 of sch 15 to the First Consequential and Transitional Act, which inserts s 355A into the Military Rehabilitation and Compensation Act 2004; and item 36 of sch 15, which adds subs (10) to s 167 of the Veterans' Entitlements Act 1986.
