Countdown to the Administrative Review Tribunal - 1 week to go

It is now just 1 week until the Administrative Review Tribunal (ART) replaces the Administrative Appeals Tribunal (AAT). Here at KWM, we have been counting down the weeks until the introduction of the ART by discussing the new features, and what the changes mean for those looking to seek review of or defend decisions in Commonwealth Tribunal proceedings.

In this insight, we consider the distinguishing structural and procedural features of the ART.

If you missed our previous insights, catch up via the links below.[1]

ART is structured by jurisdictional area with jurisdictional area leaders

A distinguishing structural feature of the ART is the establishment of jurisdictional areas. The AAT is structured as nine divisions[2], whereas the ART will have eight jurisdictional areas.[3] Within each ART jurisdictional area, the President can establish sub-area lists.[4]

We understand sub-area lists will group similar proceedings together to “promote consistent approaches to case management and decision-making”.[5] Specialist lists were not a formal feature of the AAT – although, in practice, certain members would tend to specialise within their division. Incorporating lists into the ART’s structure is similar to how certain other State and Territory review jurisdictions manage caseloads.[6]

The AAT’s divisions have largely been replicated or consolidated into the ART’s jurisdictional areas. Notable differences are summarised below:

Another new structural feature of the ART is the formal assignment of jurisdictional area leaders. On 16 September, the Honourable Mark Dreyfus KC MP announced an intention to assign 5 inaugural jurisdictional area leaders for the ART:[7]

• President Kyrou as Jurisdictional Area Leader for Intelligence and Security
• Deputy President Simone Burford as Jurisdictional Area Leader for Protection
• Deputy President Kruna Dordevic as Jurisdictional Area Leader for the National Disability Insurance Scheme and Social Security
• Deputy President Gina Lazanas as Jurisdictional Area Leader for Taxation and Business, Veterans and Workers’ Compensation, and General
• Deputy President Kathryn Millar as Jurisdictional Area Leader for Migration

Jurisdictional area leaders have various statutory obligations, including providing “intellectual leadership”[8] to and managing the performance and conduct of members,[9] responding to issues and trends in the caseload within their jurisdictional area,[10] and assisting the President to ensure the ART operates efficiently and effectively across all jurisdictional areas.[11]

It is clear that the structure of the ART is geared towards informality,[12] streamlining processes and creating efficiencies where possible. Unlike the AAT where there are different practice directions and approaches within each division, it seems clear that the ART will try to streamline practices across the different jurisdictional areas.

Accessibility

The AAT had an obligation to pursue the objective of providing a mechanism of review that was accessible,[13] however the Act did not provide any further guidance as to what accessibility meant. In contrast, the ART has a statutory obligation that (as far as practicable) it must conduct proceedings in a way that is accessible to the parties, taking into account their needs. The ART Act also provides a new definition for ‘accessible’, which confirms that accessibility means effective participation in proceedings.

We expect that the elevation of accessibility from an objective to an obligation, and the provision of a definition of ‘accessible’ is likely to have an effect on the practical operation of the ART. Some aspects of the new draft practice directions (discussed below) demonstrate what this may mean in practice. For example, both the draft directions and the ART Act are technology-neutral.[14]

Structural changes for social services reviews

For most reviews conducted by the ART, we do not expect that the procedural experience for practitioners and parties will be drastically different to the AAT. There is a clear exception for review of social services decisions.

In the AAT, review of social services decisions[15] is completed through a first and then sometimes a second review process (commonly referred to as ‘AAT 1’ and ‘AAT 2’). The first review is intended to be quick and informal in the Social Services and Child Support Division, reaching hearing within 6 weeks after the date of application.[16] In practice, the agency’s role in AAT1 proceedings was usually limited to the provision of written submissions. Second reviews are conducted by the General Division and generally involve the usual parties and all the usual steps for Tribunal review (exchange of Statements of Facts, Issues and Contentions, evidence, interlocutory conferences etc.)

In the ART, a different approach will be taken. An “eligible social services decision”[17] is reviewable by the ART pursuant to the usual process – it is not a fast tracked review like AAT1. Subject to some exceptions,[18] it is then open to a person whose interests are affected to apply for second review of the decision. We note the draft practice directions specify the procedure for making a second review.[19] Access to the Guidance and Appeals Panel (GAP) is also limited for these decisions, as only the President may refer an application for review of an eligible social services decision or for second review to the GAP.[20]

Another structural change is that a party can appeal a first review decision in the ART directly to the Federal Court.[21] In the AAT, only child support first review or review of an AAT reviewable employer decision in the Social Services and Child Support Division could be appealed to the Federal Court.[22]

We anticipate that the process for ART review of social services decisions will become clearer once the ART commences on 14 October and when the practice directions are finalised. Given the ART’s goals of informality, we fully expect the ART to provide parties (and practitioners) with guidance and leniency as they adjust to the new structure.  

ART Rules, Regulations and Practice Directions

In September, the Governor-General and Attorney General made the ART Regulations[23] and ART Rules[24] respectively. Both are made under the ART Act and will commence on 14 October.

Rules are a new feature of the ART – there were no Rules for the AAT.

Five draft practice directions have been published,[25] though they have not yet been formally made by the President pursuant to s 36(1) of the ART Act who must first consult the Tribunal Advisory Committee.[26] Further, we note that an additional practice direction will be made specifically for the GAP.[27] We expect the practice directions to be finalised shortly after the ART commences on 14 October.

If you have any questions or would like training or advice on the ART, please get in touch with our specialist administrative law team.