Overview of the new Administrative Review Tribunal
The new Administrative Review Tribunal (ART) replaced the Administrative Appeals Tribunal (AAT) on 14 October 2024. In the first of a series of articles about the practice and procedure of the new ART, we provide an overview of the ART, the relevant legislation, the structure of the ART, and its objectives.
- The establishment of the ART and the consequent abolition of the AAT is one of the most significant reforms for administrative law practitioners in decades.
- It is clear that the introduction of the ART is more than just a ‘rebrand’ of the AAT; it is the introduction of a mechanism of review that is more uniform, transparent and fit-for-purpose.
The Administrative Review Tribunal Act 2024 (ART Act) commenced on 14 October 2024, establishing the ART and re-establishing the Administrative Review Council.
Also on 14 October 2024, the following consequential Acts came into effect:
- the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Consequential Act 1), which abolished the AAT and the Immigration Assessment Authority and made amendments to 138 Commonwealth Acts relating to reviews of taxation, social security, disability, migration, veterans' entitlements and intelligence decisions; and
- the Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Act 2024 (Consequential Act 2), which made further amendments to 110 Commonwealth Acts.
The Tribunal is made up of eight jurisdictional areas established by section 196(1) of the ART Act:
- general (led by Deputy President (DP) Gina Lazanas);
- intelligence and security (led by ART President, the Hon Justice Emilios Kyrou AO);
- migration (led by DP Kathryn Millar);
- national disability insurance scheme (led by DP Kruna Dordevic);
- protection (led by DP Simone Burford);
- social security (led by DP Kruna Dordevic);
- taxation and business (led by DP Gina Lazanas); and
- veterans' and workers' compensation (led by DP Gina Lazanas).
Under section 196(2) of the ART Act, the President may establish one or more ‘lists’ within each jurisdictional area to focus on particular types of applications and facilitate the flexible movement of members between areas to respond to increased caseloads.
The Administrative Review Tribunal Rules 2024 (ART Rules) were established under section 295 of the ART Act and also came into effect on 14 October 2024. The ART Rules importantly address:
- the timeframes for making applications to the ART (rules 5 and 6);
- application fees (rules 22 and 24);
- limitations on the decisions that can be appealed to the guidance and appeals panel (GAP) (rule 15);
- matters that decision-makers must have regard to when giving notice of a decision (rule 16); and
- authorisations for members, registrars and staff to exercise powers and functions (rules 17, 18 and 19).
The ART is required by section 9 of the ART Act to pursue the objective of providing a mechanism of review that: is fair and just; resolves applications in a timely manner, with as little formality and expense as possible; is accessible and responsive to each party's diverse needs; improves the transparency and quality of government decision-making; and promotes public trust and confidence in the Tribunal.
The following provisions of the ART Act promote this objective:
ART Act | Summary |
|---|---|
| Providing a mechanism of review that is fair and just | |
| 49 | provides the ART with a discretion in relation to procedure. |
| 52 | provides that the ART is not bound by the rules of evidence. |
| 53 | empowers the ART to determine the scope of the review by limiting the questions of fact, evidence and issues it considers. |
| 55 | requires the ART to ensure that each participating party is given a reasonable opportunity to present their case, access information to which the ART proposes to have regard to, make submissions and adduce evidence. |
| Resolving applications in a timely, informal and inexpensive manner | |
| 50 | requires the ART to act with as little formality and technicality as possible. |
| 79 | permits the ART to give directions in relation to the procedure to be followed in proceedings. |
| 85, 96, 99, 100, 101, 103 | enables the ART to finalise proceedings at an early stage in certain circumstances. |
| 279 and 280 | allows certain functions of the ART to be delegated to registrars and staff members. |
| Accessibility and responsivity | |
| 4 | defines ‘accessible’ as enabling persons to apply to the ART and participate effectively in proceedings in the ART. |
| 51 | requires the ART to conduct proceedings in a way that is accessible, taking into account the needs of the parties. |
| 67(1) and (2) | permits the ART to appoint a ‘litigation supporter’ if a party does not have decision-making ability and the appointment is necessary having regard to particular matters. |
| 68(2) and (3) | requires the ART to appoint an interpreter in certain circumstances. |
| 68(5) | provides the ART with a residual discretion to appoint an interpreter. |
| Transparency and promoting public trust and confidence | |
| 122 | establishes the GAP to constitute the ART at a more senior level where there is an issue of significance or where an ART decision may contain an error of fact or law. |
| 193(i), 197(5)(f), 294B | requires jurisdictional area leaders to identify systemic issues and inform the President of those issues, requires the President to inform ministers and the Administrative Review Council of systemic issues, and requires ministers and Commonwealth entities to inform the Administrative Review Council of actions taken in relation to those issues. |
| 113 | requires decisions to be published where they involve significant conclusions of law, have significant implications for the Commonwealth, and are made by the GAP. |
| Division 3 | enshrines a transparent and merit-based selection process for ART members. |
| 203 and 221 | empowers the President to investigate the conduct of members and temporarily restrict a member’s duties and permits the termination of an appointment by the Governor-General in certain circumstances. |
In our next article in this series, we will set out the provisions of the ART Act relating to applying for review, including the meaning of ‘decision’, who can apply for review, how to apply, the relevant time limits, and the consequences if the requirements for an application are not met.
