Diversity and accessibility in the ART
Speech delivered by Justice Kyrou, President of the Administrative Review Tribunal, at the Asian Australian Lawyers Association National Cultural Diversity Summit
Australia is a multicultural society made up of diverse ethnicities, languages, religions and cultures. Thus, the theme of this year’s summit - that we are one, but we are many - is very apt. The success of a multicultural society depends on mutual understanding and respect. Equality before the law and respect for other people’s rights are important elements of the rule of law. For these elements to be realised, access to justice for individuals with diverse backgrounds and needs must be facilitated by our institutions.
Government decisions can profoundly affect the personal and business affairs of members of the community. The function of the new Administrative Review Tribunal is to review Federal administrative decisions on their merits. Such review is fundamental to ensuring fairness, transparency and accountability in the exercise of Commonwealth government power.
Today, I will discuss how the provisions of the Administrative Review Tribunal Act 2024 and the programs and initiatives of the Tribunal embrace inclusivity, and recognise and accommodate the diversity of the people that engage with it, and thereby promote access to justice.
Statutory framework promoting diversity
The ART Act contains a number of provisions which are designed to make the Tribunal more inclusive and better reflect the community it serves.
Section 9 of the ART Act provides that the Tribunal ‘must pursue the objective of providing an independent mechanism of review’ which, among other things, ‘is accessible and responsive to the diverse needs of parties to proceedings’. This goes further than the objective of the Tribunal’s predecessor - the AAT - whose objective in section 2A(a) of the Administrative Appeals Tribunal Act 1975 referred to accessibility alone.
The objective in section 9 of the ART Act is reflected in section 51(1) , which provides 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.
Section 4 of the ART Act defines ‘accessible’ as follows:
accessible, in relation to the Tribunal, means enables persons to apply to the Tribunal and to participate effectively in proceedings in the Tribunal.
Note: Examples of areas where arrangements may be made in relation to accessibility include the following:
(a) premises, facilities and technology;
(b) ease of locating and understanding information about the Tribunal and documents relating to proceedings;
(c) adjustments that can reasonably be made to accommodate a person’s needs, such as interpreter services for hearings.
The provisions of the ART Act to which I have referred make clear that, in order to promote access to administrative justice, the Tribunal must be flexible and responsive to the parties’ diverse needs rather than applying a broad ‘one-size-fits-all’ approach.
Flexibility and responsiveness to the diversity of parties are vital for ensuring that Tribunal users have a fair opportunity to be heard. Diversity in the composition of the Tribunal’s membership is also important in making the Tribunal more accessible and ensuring that members make the correct or preferable decision in each of their cases.
This is recognised in the merit-based appointment process for members that is mandated by the ART Act. Section 4 explains what that process entails in the following terms:
an assessment process for an appointment to an office is merit‑based only if:
(a) an assessment is made of the comparative suitability of the candidates for the duties of the office, using a competitive selection process; and
(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.
It is the evident intention of this provision that the membership of the Tribunal should include individuals with diverse backgrounds. Diversity may be due to various factors, including members having culturally and linguistically diverse backgrounds, First Nations backgrounds or disabilities.
A work environment which promotes inclusiveness and celebrates diversity enables each member to contribute their unique experiences and perspectives to the workplace in a manner that is complementary and enriching. By being exposed to diverse colleagues, and learning from their perspectives, members will be better able to understand the perspectives of persons that come before the Tribunal and to make better decisions.
The provisions that I have outlined provide an important statutory framework which promotes not only the goal of the Tribunal looking more like the community it serves, but also the goal of the Tribunal best serving the community, however the community looks.
Tribunal’s programs and initiatives promoting diversity
I will now address how the Tribunal has promoted diversity and inclusion in its programs and initiatives.
The Tribunal as an organisation takes positive steps to ensure users from culturally and linguistically diverse backgrounds can communicate with the Tribunal effectively.
To help people understand the nature and process of the Tribunal’s review function, the Tribunal offers guides, fact sheets and videos on its website in plain English and in other community languages relating to some common types of decisions. The Tribunal engages and meets the cost for an interpreter if a party or witness requires one for a case event. The Tribunal also uses the Translating and Interpreting Service as needed for telephone calls and other interactions with users.
In addition, the Tribunal has been provided with targeted funding over the next two years to improve access to merits review for regional, rural and remote communities. This includes $2.6 million in funding over two years to pilot a First Nations Liaison Officer program (commencing in mid-November 2024) to improve access to Tribunal services for First Nations communities and to conduct regional community outreach.
Between May and July 2024, the Tribunal completed an accessibility audit of all its internal facilities and website to identify areas for further improvement. Today, all Tribunal premises where case events are conducted can accommodate hearing loop systems, closed captioning and interpreters. The Tribunal’s website also includes a number of features to improve how users access our information, including the verified translation of information into 8 languages and assistive technology translation into 28 languages.
The ART Act places significant emphasis on the training, education and professional development of members.[1] The provisions which deal with this, together with the provisions that require that members be appointed through a merit-based selection process, seek to ensure that members maintain their skills and expertise so that they are able to make high quality decisions. Requisite skills and expertise extend to having an understanding of how to engage with culturally and linguistically diverse parties and witnesses.
Members need to be culturally aware in order to avoid the performance of any of their functions being inappropriately influenced — whether consciously or unconsciously — by assumptions that are based on cultural stereotypes.
It is now accepted that a witness’s cultural background can influence the content of their evidence as well as the manner in which it is given. Awareness of cultural dimensions to a witness’s evidence can provide a Tribunal member with a perspective or context which assists their understanding of a witness’s evidence and the assessment of their honesty and reliability. Conversely, ignorance of such dimensions creates a risk that a member may form an inaccurate impression of the witness’s honesty and reliability, resulting in a miscarriage of justice.
Accordingly, it is important for Tribunal members to be aware of the possibility that people from culturally and linguistically diverse backgrounds may give evidence or engage with the Tribunal in ways that differ from those from Anglo-Celtic backgrounds.
As a member of both the Diversity Council of Australia and Pride in Diversity, the Tribunal ensures that all our members and staff have an opportunity to participate in their e-learning courses, webinars, and networking events. Throughout the 2023-24 financial year, the Tribunal also organised various diversity events for our members and staff to foster a respectful and inclusive workplace environment.[2]
This commitment to ensuring respect for, and understanding of, cultural differences should not be seen as tokenistic. Members of the Tribunal take an oath to ‘well and truly serve in the office [of member], and do right to all manner of people according to law without fear or favour, affection or ill-will.’[3]
In addition, part 15 of the code of conduct for non-judicial members of the Tribunal requires them to treat every individual who works at the Tribunal or engages with the Tribunal no less favourably due to the individual’s personal attributes, including that person’s national or ethnic origin, religion, race, colour or descent. This obligation reflects sections 9 and 10 of the Racial Discrimination Act 1975.
Conclusion
The Tribunal is committed to ensuring that every party to a proceeding before it has a reasonable opportunity to participate effectively throughout the review process – from their first interaction with the Tribunal to the finalisation of their case. In my opinion, the foundations laid by the ART Act, together with the Tribunal’s programs and initiatives that I have outlined, will enable the Tribunal to better respond to the diverse needs of individuals seeking merits review of a Federal government decision.
Thank you.
[1] ART Act, ss 193(h), 197(5)(e), 236(4)(b), 242(2)(j)(iii).
[2] Administrative Appeals Tribunal, Annual Report 2023–24 (Report, September 2024), 88.
[3] ART Act, s 213(2) (emphasis added).
