What in Practical Terms is Likely to Change in How Federal Merits Review is Conducted?

Law Council’s ART Transition seminar series, Melbourne

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Over the next 20 minutes, I will outline what, in practical terms, is likely to change in how merits review is conducted at the Federal level following the abolition of the Administrative Appeals Tribunal (AAT) and the establishment of the new Administrative Review Tribunal (ART).

I will highlight some of the key differences under the following headings:

• Increased quality of Tribunal decisions.
• Increased speed in which the Tribunal hands down its decisions.
• Increased efficiency in the Tribunal’s operations.
• Better reflection of the community the Tribunal serves.

As is well known, the Administrative Review Tribunal Act 2024 (‘ART Act’) and two consequential and transitional provisions Acts have received the royal assent and await proclamation. It is likely that the ART will commence around October this year.

Increased quality of Tribunal decisions

Calibre of Tribunal members

The members of the ART will comprise the President, judicial deputy presidents, non-judicial deputy presidents, senior members and general members.^[1] The Attorney-General may appoint the President or a non-judicial deputy president to lead one or more of the ART’s eight jurisdictional areas.^[2] The President, the jurisdictional area leaders and the Principal Registrar will make up a Tribunal Advisory Committee (TAC).^[3]

The President may create lists as subareas within a jurisdictional area and appoint a deputy president or a senior member to lead one or more lists.^[4]

The core function of Tribunal members is to make decisions on the cases they hear. Logically, if the calibre of members who are appointed to the Tribunal improves, the overall quality of Tribunal decisions should improve.

In this regard, a key change that will be made by sections 205 to 208 of the ART Act is that members, including the President, will only be eligible for appointment if they undergo a publicly advertised merit-based selection process.^[5] There is an exception for judicial deputy presidents.

A process will only be merit-based if:

(a) an assessment is made of the comparative suitability of the candidates for the duties of the office, using a competitive selection process;

(b) the assessment is based on the relationship between the candidates’ skills, expertise, experience and knowledge and the skills, expertise, experience and knowledge required for the duties of the office; and

(c) the assessment takes into account the need for a diversity of skills, expertise, lived experience and knowledge within the Tribunal.^[6]

A person must have been enrolled as a legal practitioner for at least 10 years in order to be eligible for appointment as a non-judicial deputy president.^[7] 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.^[8]

The ART Act explicitly provides that the most senior members of the Tribunal must lead by example. Unlike the AAT Act, the ART Act contains a detailed list of functions of both the President and deputy presidents. In respect of both, those functions include to provide intellectual leadership to the Tribunal, including by promoting best practice in decision-making by the Tribunal, and hearing proceedings involving complex, significant or sensitive matters. ^[9]

Training, education and professional development

The ART Act places significant emphasis on the training, education and professional development of members. The functions of the President, jurisdictional area leaders and the TAC include responsibilities for these matters.^[10] Section 242(2)(j)(iii) provides that the President’s annual report must include an overview of any actions taken in relation to the training, education and professional development of members.

Together with the provisions dealing with a mandatory merit-based selection process, the provisions dealing with education, training and professional development of members seek to ensure that members maintain their skills and expertise so that they are able to make high quality decisions. Training, education and professional development will also assist members to comply with the performance standard that I will discuss shortly.

Normative role of Tribunal guidance decisions

Another way in which the quality of Tribunal decisions will improve will be through the normative effect of the Tribunal guidance decisions which are made by the Guidance and Appeals Panel (‘GAP’) that is established by part 5 of the ART Act.

The President is responsible for deciding which cases are heard by the GAP. There are two circumstances in which the President will be able to refer cases to the GAP. The first 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.

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.

A review of an ART decision by the GAP involves a second merits review. In undertaking such a review, the GAP will not confine itself to any alleged errors in the original ART decision. The GAP can consider all the evidence – including new evidence – and may make findings of fact which differ from the findings of the ART in its first instance decision.

Under sections 40 and 41 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, 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 and the GAP is constituted by two or three members. 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. There are exceptions for certain decisions.^[11]

Section 109 of the ART Act introduces the concept of a Tribunal guidance decision. 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.

It is anticipated that the GAP will hear cases where there is uncertainty about the application of the law, or where the Tribunal is noticing patterns of errors in decisions made by respondents which could be resolved by a decision of the GAP. In those circumstances, those cases would be referred to the GAP on the basis that they raise an issue of significance to administrative decision making. The types of decisions that were made by the AAT during the period of the Robodebt scheme would fall within the latter category.

Tribunal guidance decisions will enable members to obtain assistance from comparable decisions and promote consistency in decision-making by the Tribunal. Greater consistency across Tribunal decisions should improve the overall quality of Tribunal decisions and reduce the number of successful appeals.

Increased speed in handing down-decisions

Powers registrars can be authorised to exercise

The ART Act makes a number of changes which are aimed at increasing the speed and efficiency in which the Tribunal hands down its decisions. The changes include broadening the range of powers to be conferred upon registrars (who are APS employees) to manage administrative matters, and providing for a performance standard for non-judicial members.

Under section 285 of the ART Act, the range of powers that the President can authorise registrars to exercise include the following:

• Extending the time for making an application for 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 has failed 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.

Authorising registrars to perform some of the routine or non-contentious procedural functions currently performed by members will free up members to focus upon hearing and determining contested cases. This will assist members to increase the speed in which they hand down their decisions.

Performance standard

The introduction of a performance standard will also facilitate the timely publication of decisions, as well as the quality of the decisions.

Under section 202 of the ART Act, the President is required to adopt a performance standard for non-judicial members. Section 202(2) stipulates that the performance standard ‘must make provision for the taking of action … in relation to non-judicial members meeting the performance standard’.

The action to which section 202(2) refers is likely to have two aspects. The first aspect is action such as education, training and mentoring to assist members to meet the standard. The second aspect is action to be taken to deal with breaches of the standard.

We are currently preparing a draft performance standard following receipt of advice from external consultants. The draft may include matters such as benchmark periods within which non-judicial members are expected to provide written reasons for their decisions and a maximum number of overdue decisions such a member may have at any one time. It may also include an obligation that such members must undertake training and education programs which are designated as mandatory and must not unreasonably refuse an offer of assistance that is made to them to help them to meet the standard.

I have in mind that, under the performance standard, list leaders will be responsible for monitoring the performance of non-judicial members and assisting them to meet the standard.

It should be noted that serious breaches of the standard by a non-judicial member may result in the Governor-General, on the recommendation of the Attorney-General, terminating the member’s appointment.

Under the AAT Act, there is no power to establish 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.

The ART’s performance standard will enable the President, jurisdictional area leaders and list leaders to have greater oversight of the performance of non-judicial members and facilitate the handing down of decisions in a timely manner. The Tribunal’s leaders will be able to identify non-judicial members who may be having difficulties meeting their benchmarks and provide appropriate support to them to assist them to meet the performance standard and publish decisions in a timely manner.

Increased efficiency in the Tribunal’s operations

The ART Act removes some of the structural features of the AAT which have created inefficiencies.

In 2015, the Social Security Appeals Tribunal, the Migration Review Tribunal and the Refugee Review Tribunal were amalgamated with the AAT. Whilst the amalgamation formally merged the three tribunals into a single tribunal, features of the separate tribunals were preserved in the divisional structure that was established. In some respects, the divisions have operated separately, with different case management systems, cultures, procedures and in some cases registry staff.

The AAT still has three separate case management systems, separate listing models and three separate in-house legal teams. Having these distinct features has meant that not all of the expected benefits of amalgamation have materialised.

One of the advantages of a fresh start is that we will be able to design internal processes and procedures which are not tethered to historical practices. We are focusing on creating a Tribunal which has a uniform culture and consistent practices. We are building a single case management system for all jurisdictional areas, which means that we will not have the inefficiency of relying upon multiple case management systems.

We are also simplifying the existing practice directions and reducing their number by placing primary reliance on a general practice direction that will apply across the Tribunal.

The ART Act introduces five major reforms relating to the structure of the Tribunal. They are as follows:

(a) The AAT’s nine divisions will be replaced by 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.^[12]

(b) The President will have the power to establish one or more lists as subareas within a jurisdictional area.^[13]

(c) The President will have the power to assign a deputy president or a senior member to lead one or more lists.^[14]

(d) The President will have the power to determine the jurisdictional area or list in which the Tribunal’s powers are to be exercised.^[15]

(e) The President will have the power to assign members (other than the President or deputy presidents) to one or more jurisdictional areas if satisfied that the member has appropriate skills, qualifications and experience.^[16]

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. Because of various 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. This will ensure greater uniformity and efficiency in the operations of the ART.

Better reflection of the community the Tribunal serves

The ART Act introduces a number of changes which are designed to make the Tribunal more inclusive and to better reflect the community it serves.

One of the changes is in section 9 of the ART Act, which adds a new element to the ART’s objective. It provides that the Tribunal must be accessible and responsive to the diverse needs of parties to proceedings.

A second change is the requirement in section 51(1) of the ART Act that the Tribunal must, as far as practicable, conduct each proceeding in a way that is accessible for the parties to the proceeding, taking into account the needs of the parties.

A third change is the requirement that assessment panels, which are involved in the appointment process for members, must consider the need for a diversity of skills, expertise, lived experience and knowledge within the Tribunal.^[17] This requirement is likely to result in a larger number of members than at present being appointed with more diverse backgrounds. Diversity may be due to members having culturally and linguistically diverse backgrounds, First Nations backgrounds or disabilities.

These reforms are important steps towards the goal of the Tribunal looking more like the community it serves.

Thank you very much.