Key Features of the New Administrative Review Tribunal
Paper delivered by Justice Kyrou, President of the Administrative Appeals Tribunal, at a COAT (SA) seminar, Adelaide, 16 April 2024
On 21 March 2024, the House of Representatives passed the Administrative Review Tribunal Bill 2024 and two consequential and transitional provisions Bills. The Bills are currently before the Senate. When enacted, the Bills will establish the Administrative Review Tribunal (‘ART’) and make significant reforms to the current system of merits review. As I will demonstrate, the ART will be very different from the Administrative Appeals Tribunal (‘AAT’). It will not simply be a rebadged AAT.
A number of policies have inspired the reforms. They include:
- A policy to remove some of the structural features of the AAT which have prevented the AAT from operating as a uniform body since the 2015 amalgamation of the AAT with three other tribunals.
- A policy to implement the recommendations of the Robodebt Royal Commission report.[1]
- A policy to impose minimum qualifications and conduct and performance standards for members.
In the next 30 minutes, I will discuss the provisions of the Bills which reflect these policies. I will also refer to some other key features of the ART. For convenience, I will assume that the Bills will be enacted in their current form and refer to them as Acts.
Structural features of the ART
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’), the Refugee Review Tribunal (‘RRT’) and the Social Security Appeals Tribunal (‘SSAT’) in 2015.
The Migration and Refugee Division of the AAT 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. The jurisdictional area leaders, the President and the Principal Registrar of the ART constitute a Tribunal Advisory Committee.
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.
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. 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. 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.
One option that I am considering is that members who have the skills, qualifications and experience in all areas of the Tribunal’s work be assigned 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 general practice direction applying across the jurisdictional areas with additional jurisdictional area specific practice directions kept to a minimum. Because the internal second review panel called the Guidance and Appeals Panel (‘GAP’) which is established by the ART Act is unique, there will 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 the ART’s resources and legislative framework permit.
Implementation of the Robodebt Royal Commission recommendations
The Robodebt Royal Commission concluded that the following factors contributed to the continuation of the Robodebt scheme for as long as it did:
- The fact that decisions of the Social Services and Child Support Division of the AAT – which are known as Tier 1 decisions – are generally not published.
- The attitude of the relevant Department that it could continue to implement the Robodebt scheme and effectively ignore a large number of Tier 1 AAT decisions that held that the scheme was unlawful.
- The de-funding of the Administrative Review Council (‘ARC’) since the 2015–16 budget.
As is well known, the Robodebt scheme involved the relevant Department pursuing welfare recipients for debts for alleged overpayments which were calculated by an automated system based upon average income rather than actual income. Average income was calculated by reference to PAYG information obtained from the Australian Taxation Office.
Between 2016 and 2022, the AAT made 431 Tier 1 decisions which held that alleged debts calculated by reference to the averaging technique could not be recovered because that technique was not a proper basis for raising debts.[2] Some decisions expressly held that debts raised on the basis of average income were unlawful.[3] One of the AAT decisions was made by Professor Carney in March 2017.[4]
Between 2016 and 2022, there were also around 114 Tier 1 decisions in which the AAT accepted that income averaging was appropriate in the circumstances of those cases.[5]
The Tier 1 AAT decisions were not published. Because not all of them were critical of the Robodebt scheme, the relevant Department took the view that it was not obliged to draw them to the attention of other applicants or to AAT members hearing similar cases in the future.
The Royal Commission made the following recommendations which are presently relevant:
- Recommendation 20.4 was that the tribunal that replaces the AAT should devise a system for the publication, on a readily accessible platform, of Tier 1 decisions which involve significant conclusions of law or have implications for social security policy. The aim of this recommendation is to ensure that important decisions, like those that were made by the AAT during the Robodebt scheme, are not effectively buried to avoid public scrutiny.
- Recommendation 20.5 was that the ARC be re-instated.
- Recommendation 23.4 was that the ARC provide training and develop resources to inform the Australian public service about the Commonwealth administrative law system.
The ART Act implements these recommendations. They form part of five mechanisms in the ART Act aimed at thwarting Robodebt type maladministration in the future. The mechanisms are as follows:
- The requirement that the ART publish certain decisions.
- The power of the ART to compel an agency to attend and participate in a hearing.
- The requirement that the ART’s leaders identify and report systemic issues in administrative decision-making.
- The re-establishment of the ARC.
- The establishment of the GAP.
I will deal with the first three mechanisms very briefly and discuss the last two in more detail.
Publication of decisions
Section 113(2) of the ART Act responds directly to recommendation 20.4 of the Robodebt Royal Commission. It provides that the ART must publish a decision and the reasons for decision if the President considers that the decision involves a significant conclusion of law or has significant implications for Commonwealth policy or administration. For any other decisions of the ART, as is the position at present, the ART will have a discretion whether to publish them.
Section 113(2) of the ART Act will assist in preventing the recurrence of the circumstances that arose in relation to the Robodebt scheme, where the AAT was regularly making decisions rejecting income averaging as a valid basis to calculate a debt, but those decisions were not published and were effectively ignored.
Compelling an agency to attend
I will now discuss the ART’s power to compel an agency to attend and participate in a hearing.
As is currently the case in Tier 1 of the AAT, hearings conducted by the ART where Centrelink is a party will be in private and proceed without Centrelink participating.[6] However, whereas currently the Social Services and Child Support Division of the AAT only has the power to compel the Department to make submissions, the ART will have the power to compel the Department and other non-participating agencies to attend and participate in a hearing.[7] When an agency is present, the Tribunal will be able to directly and more forcefully draw attention to matters of concern to the Tribunal relating to the conduct of the agency.
Non-participating parties still have obligations to assist the Tribunal and can be directed to give documents or make submissions.[8] The ART will be able to compel an agency to assist the ART to make the correct or preferable decision by providing submissions on matters relevant to the ART’s decision.
If a matter is referred to the GAP, all parties must participate in the proceeding before the GAP.[9]
Identification and reporting of systemic issues
I will now discuss the requirement that the ART’s leaders sidentify and report systemic issues.
Section 193(i) of the ART Act provides that one of the President’s functions is ‘to inform relevant Ministers, relevant Commonwealth entities and the [ARC] of any systemic issues related to the making of reviewable decisions that have been identified in the caseload of the Tribunal’.
The functions of the jurisdictional area leaders include ‘to identify systemic issues related to the making of reviewable decisions arising in the caseload of the jurisdictional area and to inform the President of those issues’.[10] The TAC’s functions include ‘to oversee … systemic issues arising in … the jurisdictional areas’ and to advise the President of them.[11]
The obligation of jurisdictional area leaders and the TAC to report systemic issues to the President has three objectives.[12] First, to enable the President to inform Ministers and agencies of systemic issues relating to the making of decisions so that they can address them. Secondly, to enable the President to decide whether to refer systemic issues to the GAP. Thirdly, to enable the President to refer systemic issues to the ARC for detailed investigation. Each of these steps avoids a systemic issue being buried or ignored.
Administrative Review Council
I now turn to the re-establishment of the ARC.
The ARC was established by Part V of the AAT Act to, among other things, keep the Commonwealth administrative law system under review, monitor developments in administrative law and recommend improvements that might be made to the system.[13] Although the ARC was defunded and effectively discontinued in the 2015–16 budget, the provisions in the AAT Act have never been repealed.
Part 9 of the ART Act re-establishes the ARC.[14] Section 249 provides that the ARC’s functions include ‘to monitor the integrity and operation of the Commonwealth administrative law system’ and ‘to inquire into systemic issues related to the making of administrative decisions and the exercise of administrative discretions.’ Other functions are to develop and publish guidance in relation to the making of administrative decisions and the exercise of administrative discretions, and to support education and training of Commonwealth officers in relation to those matters.
The members of the ARC will include the President of the ART, the Commonwealth Ombudsman, the Australian Information Commissioner and up to 10 others.[15]
The Robodebt Royal Commission concluded that the Robodebt scheme was within the remit of the ARC’s functions, and that the ARC could have monitored Tier 1 AAT decisions, inquired into the conduct of the relevant Department and reported its findings to the Attorney-General.[16]
It is likely that if the ARC had been operational when the AAT began to make decisions that the Robodebt scheme was invalid, the ARC would have made strong public recommendations that the scheme be discontinued.
Guidance and Appeals Panel
I will now discuss the Guidance and Appeals Panel, or GAP.
One of the most significant changes in the ART Act is the establishment of the GAP 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 decisions of the ART – other than certain exempt decisions – 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.
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.
Looking at the history of the Robodebt scheme, I would like to think that, if the ART Act had been in force, the Tribunal would have taken steps to address the scheme no later than March 2017, when Professor Carney made his decision. It is likely that, at that time, the issue of invalidity of the scheme would have been drawn to the attention of the President by a jurisdictional area leader either directly or through the TAC.
The President could then have instructed registry staff to identify the next case which involved the issue of invalidity and referred that case to the GAP for determination on the basis that it raised issues of significance to administrative decision-making. The relevant Department would have been obliged to attend the hearing before the GAP. The decision of the GAP would have been deemed to be a Tribunal guidance decision which non-judicial members of the ART would have had to take into account in cases they considered raised similar facts or issues. The President would have been obliged to publish the decision of the GAP. Simultaneously with a referral to the GAP, the President could have alerted relevant Ministers of the issue of invalidity and referred the matter to the ARC for investigation and report.
With so many options at the President’s disposal, it is highly unlikely that the issue of invalidity could have escaped public scrutiny for as long as it did under the current legislation.
Minimum qualifications and conduct and performance standards
The final matter I will discuss is the minimum qualifications and conduct and performance standards for non-judicial members of the ART.
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 against the performance standard.
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. Unlike the present position, a non-lawyer cannot be appointed as a deputy president. Senior members and general members who are lawyers must have been enrolled for at least seven or five years, respectively. Non-lawyers can be appointed as senior members or general members only if they have specialised training or experience of at least seven or five years, respectively, in a subject matter relevant to the jurisdiction of the Tribunal.
Under sections 201 and 202 of the ART Act, the President will be required to publish a code of conduct and a performance standard for non-judicial members. Sections 201(2) and 202(2) stipulate that the ART’s code of conduct and performance standard must provide for the taking of action by the President or a jurisdictional area leader in relation to non-judicial members upholding the code or meeting the standard, respectively.
The action to which sections 201(2) and 202(2) refer includes action to assist non-judicial members to comply with the ART’s code of conduct and performance standard as well as action against non-judicial members resulting from breaches of the code and the standard.
The ART’s code of conduct and performance standard are very important documents because they will collectively set out the normative standard of behaviour and performance that will be expected of non-judicial members of the ART. The code and the standard are also important because, if a non-judicial member contravenes either of them, that member could face very serious consequences including removal as a member.
Under section 203 of the ART Act, if the President forms the opinion that a non-judicial member may have breached the ART’s code of conduct or performance standard, the President may take the following steps:
(a) investigate the member’s conduct or direct or authorise a person or body to do so;
(b) report on an investigation of the member’s conduct or authorise a person or body to do so;
(c) refer the member’s conduct to a person or body (such as a regulatory or law enforcement body) or authorise a person or body to do so;
(d) take any measures in relation to the member that the President believes are reasonably necessary to maintain public trust and confidence in the Tribunal;
(e) temporarily restrict the member’s duties if the President reasonably believes that doing so is in the public, or the Tribunal’s, interest; or
(f) take no action.
Section 200(1) of the ART Act empowers the President to give a written direction to a non-judicial member relating to the performance of the member’s duties.
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 ART’s code of conduct or 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. Some State tribunals have codes of conduct and performance standards but some of them are drafted in aspirational terms and none of them expressly provide that a breach may result in termination of appointment.
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.
Because of the potentially serious consequences of a breach of the ART’s code of conduct or performance standard, these documents must be drafted very carefully. They must be fair and expressed clearly so that there is no ambiguity as to whether a non-judicial member has breached any of their obligations.
The Tribunal has undertaken some work in preparing a code of conduct and a performance standard. We have engaged the Australian Government Solicitor to complete that work and provide to the Tribunal drafts of those documents which reflect best practice and are in a form that is suitable for consultation with members.
Thank you very much.
[1] Royal Commission into the Robodebt Scheme (Final Report, July 2023), (‘Royal Commission report’)
[2] Royal Commission report, 556.
[3] Royal Commission report, 239.
[4] Royal Commission report, 239.
[5] Royal Commission report, 556.
[6] Centrelink is taken to have given an election notice that it will be a non-participating party in proceedings. See the following items in the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024: 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] ART Act, s 63(2).
[8] ART Act, ss 26, 56(3), 63(2).
[9] See ART Act, s 61(1)(d).
[10] ART Act, s 197(5).
[11] ART Act, s 236(4)(e)–(f).
[12] Explanatory Memorandum to the ART Act, 162 [1113]–[1114].
[13] AAT Act, s 51(1)(aa).
[14] ART Act, s 246.
[15] ART Act, s 247(1).
[16] Royal Commission Report, 565.
