The ART of merits review – key differences from the AAT

Paper delivered at a dinner organised by the Australian Italian Lawyers Association and the Hellenic Australian Lawyers Association, Melbourne, 22 March 2024

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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. In the next 40 minutes, I will highlight the key features of the ART and, where appropriate, contrast them with those of the AAT. I will do so under the following headings:

• The ART’s objective and structure.
• Practice and procedure and the expanded roles of registrars.
• Guidance and Appeals Panel.
• Agency opt out provisions.
• Legal representation.
• Public hearings and hearings on the papers.
• Key changes in jurisdictional areas.
• General transitional arrangements.

Yesterday, the House of Representatives passed the Administrative Review Tribunal Bill 2023 (‘ART Bill’) and a number one and a number two Consequential and Transitional Provisions Bill.

I will be providing you with a high level summary of key features of the Bills in the form in which they were passed by the House of Representatives.

For ease of reference, I will assume that the three Bills will be enacted in their current form and refer to them as Acts.

The ART’s objective and structure

Under s 9 of the ART Act, the ART’s objective is similar to the AAT’s objective in s 2A of the AAT Act. However, s 9 adds two new features, namely that the Tribunal:

• must be accessible and responsive to the diverse needs of parties to proceedings; and
• must improve the transparency and quality of government decision-making.

Thus, s 9 expressly refers to the important normative role of the Tribunal of improving decision-making systematically and not just in the specific case before it. As I will discuss shortly, this role is reflected in other provisions of the ART Act.

The ART Act retains the hierarchy of members of the AAT, namely a President, deputy presidents (both judicial and non-judicial), senior members and general members.

There are changes to the Divisional structure of the AAT. The AAT 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.

Section 196(1) of the ART Act establishes eight areas of similar types of cases in which the ART will exercise jurisdiction. The areas are called jurisdictional areas. They are: (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. Section 197(1) provides that the Attorney-General may appoint the President or a non-judicial deputy president to be a leader of a jurisdictional area.

A key change in the ART Act is the conferral upon the President the power under s 196(2) to establish one or more lists as subareas within a jurisdictional area. Section 198(1) empowers the President to assign a deputy president or 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.

At present, the power to determine some of these organisational matters is vested in the Attorney-General rather than the President. Also, some of the caseloads of the AAT are allocated to particular divisions based largely upon historical factors.

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. The power of the President to create lists is a significant change because it gives the President the flexibility to rearrange the ART’s caseloads into groupings with similar subject matters, procedures and member skills. The President can also alter these arrangements in response to changes in caseloads and legislation.

In the AAT, assignments for senior members and general members are made by the Attorney-General. The Attorney-General is required to consult with the President, and in some cases with other Ministers. Because of these consultation requirements, the current system is time consuming and does not always facilitate the flexible and quick movement of members between divisions to respond to increased need or caseloads. Under the ART Act, the President’s powers to assign members to one of the jurisdictional areas and to alter such assignments from time to time will enable the President to respond dynamically and flexibly to changes in volumes of caseloads and also provide greater diversity of work for members.

President’s functions

Unlike the AAT Act, the ART Act contains a detailed list of functions of the President in a single section, namely s 193. Apart from the obvious functions such as managing the business of the Tribunal, s 193 includes a number of new functions. They include the following:

• To provide intellectual leadership to the Tribunal, including by promoting best practice in decision-making.
• To hear proceedings involving complex, significant or sensitive matters.
• To ensure that the Tribunal operates efficiently and effectively.
• To promote the training, education, and professional development of members.
• To manage the performance and conduct of members.
• To inform Ministers, agencies and the re-established Administrative Review Council of any systemic issues relating to the making of decisions that have been identified in the Tribunal’s caseload.

The last function also reflects the normative role of the Tribunal to improve systemic decision-making. The identification of systemic problems will increase accountability and transparency and provide an incentive for timely remedial action. Robodebt-type maladministration would obviously fall within this function. The ART will be better able to thwart such maladministration compared to the AAT.

Membership

Sections 205 to 208 of the ART Act govern the appointment and reappointment of members. A key change is that members, including the President, will only be eligible for appointment if they undergo a merit-based selection process. There is an exception for judicial deputy presidents. For the reappointment of non-judicial deputy presidents, senior members and general members, the Attorney-General must seek and take into account the advice of the President in relation to the member’s performance.

There is a new minimum qualification for non-judicial deputy presidents. A person must have been enrolled as a legal practitioner for at least 10 years prior to their appointment as a non-judicial deputy president.

Under ss 201 and 202 of the ART Act, the President will have new powers to adopt a code of conduct and a performance standard for non-judicial members. Under s 203, if the President forms the opinion that a non-judicial member may have breached the code of conduct or performance standard, the President will be able to conduct an investigation and temporarily restrict a member’s duties while the investigation takes place.

A major change from the AAT Act is the expanded powers to terminate the appointment of non-judicial members. Under s 221 of the ART Act, the Governor-General will be able terminate the appointment, on the recommendation of the Attorney-General, in certain circumstances. Those circumstances include:

• where the member’s conduct or behaviour amounts to serious misconduct (which is defined to include unlawful discrimination and serious or repeated bullying or harassment of a person);
• where the member has engaged in conduct that constitutes a serious breach of the code of conduct or the performance standard; and
• where the member is unable to perform their duties because of physical or mental incapacity.

Under the AAT Act, there is no power to establish a code of conduct or a performance standard which can then be enforced and, if necessary, be relied upon to terminate the appointment of a Tribunal member.

Currently, the termination provisions for a member of the AAT largely mirror those that relate to judges. This means that the main method of removing a member is by an address being presented to the Governor-General by both houses of parliament for proved misbehaviour or physical or mental incapacity.

Practice and procedure and the expanded roles of registrars

Under s 295 of the ART Act, the Attorney-General has power to make rules. It is anticipated that the rules will set out some matters that are currently dealt with in regulations.

Section 36 of the ART Act confers power upon the President to make practice directions about a broad range of matters relating to the operations and procedure of the Tribunal. They include: the arrangement of the business of the Tribunal; the sorting, prioritisation, allocation and treatment of applications; and the conduct of Tribunal proceedings.

It is proposed that, as part of the transition from the AAT to the ART, all AAT practice directions will be replaced by a new set of ART practice directions. We will aim to ensure that the procedures of the Tribunal are as uniform as possible across all of its jurisdictional areas.

Under s 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 to the Tribunal and to 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;
  • the Tribunal cannot review a decision;
  • 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 (s 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 thus free up members to focus on hearing and determining contested cases.

Guidance and appeals panel

One of the most significant changes in the ART Act is the establishment of a guidance and appeals panel (‘GAP’) within the ART by pt 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 relates to an application for review which has not yet been heard by the ART. Under s 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.

The second circumstance relates to a substantive decision made by the ART in relation to an application for review. Under s 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.

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. Thus, a party that is not happy with a decision of the ART may apply for a second review by the GAP or may appeal to the Federal Court on a question of law. If a party is granted a second review by the GAP and is not happy with the decision of the GAP, the party can appeal to the Federal Court on a question of law.

The general rule, set out in s 127 of the ART Act, is that the making of an application to refer an ART decision to the GAP does not affect the operation of the ART decision. However, the ART will be able to stay the original decision, pending the President’s determination whether to refer the decision to the GAP.

If a party unsuccessfully applies to the President to refer an ART decision to the GAP and subsequently decides to appeal the original ART decision to the Federal Court on a question of law, the time limit within which to lodge the appeal is modified. That is because the time limit will not include the period between the time the person applied to the President to have the ART decision referred to the GAP and the time the President refused the application.

Under s 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 s 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, the presiding member must be more senior than the most senior member who was involved in making the original ART decision except where the latter member was a non-judicial deputy president. In such a case, the presiding member may be another non-judicial deputy president, a judicial deputy president or the President.

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 s 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. The rules to be made by the Attorney-General may also exclude other types of decisions from the jurisdiction of the GAP.

Another new feature of the ART, which is introduced by s 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 s 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.

Agency opt out provisions

Sections 60 to 64 of the ART Act provide that decision-makers may give notice to the Tribunal that they have elected not to participate in specific kinds of proceedings or Tribunal case events, such as an ADR event, a directions hearing or a final hearing. The right to elect not to participate does not apply to the Intelligence and Security jurisdictional area[3] and proceedings in the GAP,[4] where the decision-maker must participate. A decision-maker who has given an election notice is described as a non-participating party.

A decision-maker who has given an election notice in respect of specific kinds of proceedings will remain a party to each proceeding of that kind and may make written submissions in any such proceeding. They must comply with the ART Act and orders of the Tribunal and use their best endeavours to assist the Tribunal to make the correct or preferable decision and achieve its statutory objective.[5]

Under s 62 of the ART Act, a decision-maker who has given an election notice in respect of certain kinds of proceedings or Tribunal case events can apply to the Tribunal for permission to participate in a particular proceeding or Tribunal case event of that kind.

The ART will have the power under s 63(2) of the ART Act to order that a non-participating party appear before the Tribunal at a Tribunal case event, give written submissions or participate in the proceeding.

The First Consequential and Transitional Act modifies the application of the above provisions of the ART Act in relation to decisions made under pt 5 of the Migration Act and decisions of Centrelink and the Child Support Registrar. As I will mention shortly, the existing pts 5 and 7 of the Migration Act will be combined into a new pt 5.

For decisions under pt 5 of the Migration Act, item 136 of sch 2 to the Consequential and Transitional Act inserts a new s 348A into the Migration Act. That section provides as follows:

• the Minister for Immigration is taken to be a non-participating party to a proceeding under pt 5;
• the Minister cannot seek permission to participate in a proceeding under pt 5 or make written submissions in such a proceeding; and
• an order under s 63(2) of the ART Act requiring the Minister to participate in a proceeding can only be made by the President or a deputy president.

For decisions of Centrelink and the Child Support Registrar, the First Consequential and Transitional Act amends the legislation conferring jurisdiction on the ART[6] to provide that Centrelink and the Registrar are taken to have given an election notice.

The power of the Tribunal to order the Minister for Immigration, Centrelink and the Registrar to participate in particular proceedings represents a significant change from the procedure under the AAT Act. Under the AAT Act, the AAT has no power to order these decision-makers to participate in a proceeding.

An order requiring these decision-makers to participate in Tribunal events in migration, social services and child support proceedings has the potential to assist the ART to narrow the issues in dispute and, in some cases, resolve the proceeding without a formal hearing.

Legal representation

Section 66 of the ART Act allows a party to choose another person to represent them. There are no leave requirements or any limitations on the role that the representative may perform in a Tribunal case event in any jurisdictional area.

The ART will have the power to order that a party not be represented by a particular person, in defined circumstances. Those circumstances include where:

• the representative has a conflict of interest in representing the party;
• the representative is not acting in the best interests of the party;
• the representation by the representative presents a safety risk to any person;
• the representation by the representative presents an unacceptable privacy risk to any person; or
• the representative is otherwise impeding the Tribunal.

If the ART orders that a party not be represented by a particular person, the party will be able to choose another person to represent them.

This is a major change from the current position because it extends the right to representation to parties in all jurisdictional areas and allows the Tribunal to remove representatives from a proceeding. Currently, s 32 of the AAT Act grants parties the right to be represented in proceedings, other than applicants in the Social Services and Child Support Division. In that Division, the agencies have a right to be represented – although usually they do not participate in the hearing – and the applicant may be represented by another person with the AAT’s permission. In deciding whether to grant such permission, the AAT must have regard to the wishes of the parties and the need to protect their privacy.

In the AAT’s Migration and Refugee Division, under s 366A of the Migration Act, the applicant is entitled to have another person assist them when appearing before the AAT in a matter arising under part 5 of the Migration Act. However, the assistant is not entitled to present arguments to the AAT or address the AAT unless the AAT is satisfied that the assistant should be allowed to do so due to exceptional circumstances. Section 427 of the Migration Act also restricts representation by another person in matters arising under part 7 of the Migration Act.

The First Consequential and Transitional Act will repeal ss 366A and 427 of the Migration Act.[7]

Currently, the AAT has no power to remove a party’s representative in circumstances where they have a conflict of interest or are not acting in the best interests of the party.

Public hearings and hearings on the papers

As is currently the case, under ss 69 and 70 of the ART Act, proceedings in the ART must be in public unless the ART Act, conferring legislation or a practice direction requires that hearings be in private or the Tribunal orders that a hearing be in private.

Section 106 of ART Act sets out the circumstances in which the Tribunal will be able to make a decision on the papers without an oral hearing. The power to make a decision on the papers will apply to all jurisdictional areas. If the ART considers the issues can be adequately determined in the absence of the parties, it will be able to decide a matter on the papers if:

• all of the parties consent;
• the respondent is a non-participating party and either the decision is wholly in the applicant’s favour or the applicant requests that the Tribunal do so;
• a participating party fails to appear at a Tribunal case event after receiving appropriate notice of the event; or
• a party fails to comply with the ART Act or an order of the Tribunal within a reasonable time.

Key changes in jurisdictional areas

Centrelink

I will now turn to discuss some specific changes to certain jurisdictional areas.

The current system whereby a party who is unhappy with social security or child support decision made by the AAT (known as a tier 1 decision) may apply to have the matter reviewed again by the AAT (known as a tier 2 review) will continue. A party cannot apply to the President to refer to the GAP a tier 1 or tier 2 decision of the Tribunal. However, it appears that it is intended that, where a party applies for tier 2 review of a tier 1 decision, the President of the President’s own motion may refer the application for tier 2 review to the GAP if it raises an issue of significance to administrative decision making.[8]

The current procedure that takes place in the AAT in a tier 1 review, where the applicant is the only party before the Tribunal and the review is inquisitorial rather than adversarial, will largely be maintained. However, there are some changes, such as parties having a right to be represented before the Tribunal, as I mentioned earlier, and applications may be referred to any kind of dispute resolution process, including conferencing. Non-participating parties such as Centrelink and the Child Support Registrar are not required to appear at dispute resolution processes, but could be required to do so in a particular case.

Review of migration and refugee decisions

The First Consequential and Transitional Act makes significant changes to the way in which decisions under the Migration Act will be reviewed. Parts 5 and 7 of the Migration Act are combined into a single part 5 which covers the review of reviewable migration decisions and reviewable protection decisions. The provisions in the ART Act will apply to the review of such decisions, subject to some modifications made in the Migration Act.

The ART will have new powers in the Migration and Protection jurisdictional areas which the AAT currently does not have in the Migration and Refugee Division. They include the power to:

• hold directions hearings;[9]
• refer applications to conferencing;[10]
• give directions about the procedure for review;[11]
• require the Minister for Immigration to give documents or submissions to the Tribunal;[12]
• allow the applicant to withdraw their application for review by notifying the Tribunal in writing;[13] and
• exercise all of the other dismissal powers available in the ART.[14]

The President will also be able to refer to the Federal Court a question of law that arises in an application for review of a migration or protection decision.[15] Under the AAT Act, the power of the President to refer a question of law to the Federal Court does not apply to decisions made under parts 5 or 7 of the Migration Act.[16]

Other aspects of the processes that currently apply to the review of decisions in the Migration and Refugee Division will continue to apply, including that the Minister for Immigration will not participate in the Tribunal hearing. However, the Minister will be a party and can be directed by the Tribunal to give documents or make submissions and has other obligations.[17] Hearings in the ART in the Protection jurisdictional area will continue to be conducted in private and published decisions must be deidentified for reviewable protection decisions.[18]

The Immigration Assessment Authority will be abolished. Its cases will be dealt with in the ART.

General transitional arrangements

Under item 20 of sch 16 of the First Consequential and Transitional Act, if immediately before the ART start date a person was entitled to make an application to the AAT, the person may make the application to the ART, as if the old law continued to apply in relation to the time for making the application but otherwise in accordance with the new law. The ART must deal with the application in a manner that it considers is efficient and fair.

Item 17 of sch 16 of the First Consequential and Transitional Act provides that, if immediately before the ART start date a person was entitled to request a decision-maker for reasons in writing for a decision, the person may request reasons in accordance with the old law. Item 22 provides that, if immediately before the ART start date a person was entitled to request the AAT for a statement of reasons, the request may be made to the ART and that the old law applies to such a request.

Item 24 of sch 16 the First Consequential and Transitional Act provides that, if a proceeding in the AAT is not finalised before the ART start date, the proceeding will be continued and finalised by the ART in a manner that it considers is efficient and fair and must be continued under the new law. Anything done in, or in relation to, a proceeding before the ART start date continues to have effect for the purposes of, or in relation to, the proceeding. Anything that is otherwise done in, or in relation to the proceeding by the AAT before the ART Act commences is taken to have been done by the ART.

Conclusion

In the limited time available to me, I have only touched the surface of the extensive changes that the new legislation will make to Australia’s system of merits review. We will see more changes when the Attorney-General makes rules under the ART Act. So watch this space.

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.

[3] ART Act, s 147.

[4] ART Act, s 61(1)(d), 61(1A)(d).

[5] See ART Act, s 56 and the definition of ‘non-participating party’ in s 61 of the ART Act.

[6] See the following items in the First Consequential and Transitional Act: item 24 of sch 3, which inserts s 111C into the A New Tax System (Family Assistance) Act 1999; item 74 of sch 3, which inserts s 94 into the Child Support (Registration and Collection) Act 1988; item 120 of sch 3, which inserts s 224B into the Paid Parental Leave Act 2010; item 149 of sch 3, which inserts s 142B into the Social Security (Administration) Act 1999; and item 198 of sch 3, which inserts s 311B into the Student Assistance Act 1973.

[7] First Consequential and Transitional Act, item 168 of sch 2; item 228 of sch 2.

[8] ART Act, ss 131E(1), 131W.

[9] ART Act, s 80.

[10] ART Act, s 87.

[11] ART Act, s 79.

[12] ART Act, ss 26(1), 63(2).

[13] ART Act, s 95 cf s 24Z of the AAT Act which excludes pt IV of the ART Act in relation to proceedings in the Migration and Refugee Division. Part IV of the AAT Act includes s 42A(1A), which enables an applicant to notify the AAT that they withdraw their application for review. This provision does not apply in relation to an application for review of a decision made under the Migration Act.

[14] ART Act, ss 96–101.

[15] ART Act, s 185.

[16] AAT Act, s 43C.

[17] ART Act, ss 26(1), 56(3), 63(2).

[18] First Consequential and Transitional Act, item 170 of sch 2 which inserts s 367B into the Migration Act.