It is now just 2 weeks until the Administrative Review Tribunal (ART) replaces the Administrative Appeals Tribunal (AAT). Here at KWM, we are 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 re-establishment of the Administrative Review Council (Council).
If you missed our previous AAT to ART insights, catch up on them here, here and here.
What is the Council?
The Council is not a decision-making body – it is a statutory council separate from the ART[1] tasked with oversight of the Commonwealth administrative law system, including supporting education and training for Commonwealth officials.
The Council can undertake inquiries and prepare reports on certain issues, providing a ‘check and balance’ function within the system. The Council’s functions are broad and include:[2]
- monitoring the integrity of the Commonwealth administrative review system
- inquiring into and advising in relation to the adequacy of decision-making procedures and the exercise of administrative discretions
- inquiring into and reporting on systemic challenges in administrative law
- developing and publishing guidance in relation to the making of administrative decisions and exercise of administrative discretions
- supporting education and training for Commonwealth officials in relation to administrative decision-making and the administrative law system.
What is the history of the Council?
A version of the Council was established and operated under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). In its first decades of operation, the Council issued dozens of reports and best practice guides on administrative law issues, ranging from which decisions should be subject to merits review, to practical guidelines for preparing statements of reasons.[3]
The Council’s activity and impact decreased into the 2000s and 2010s, and it was discontinued in 2015 as part of the ‘smaller government’ reforms announced by the then Minister for Finance.[4]
The functions of the Council were then transferred to the Attorney-General’s Department, although the relevant sections under Part V of the AAT Act establishing the Council were never repealed.
More recently, both the Senate and the Royal Commission into the Robodebt Scheme have called for the reintroduction of the Council.[5]
What does the new Council look like?
While there are some similarities with the previous Council under the AAT Act, there are key differences under the ART Act including:
A different constitution
- Under Part 9 of the ART Act, the Council comprises the ART President, the Commonwealth Ombudsman, the Australian Information Commissioner and at least 3, but not more than 10, other members.[6]
- This differs from the Council that was established under the AAT Act, which also included the President of the Australian Human Rights Commission and the President of the Australian Law Reform Commission.[7]
- The ‘other members’ of the Council do not need to be members of the ART. The Governor-General can appoint anyone to the Council who has knowledge or experience in a specified area, or who is a senior official of a Commonwealth entity.[8]
- Additionally, the Council must include at least two members who were not Commonwealth officials immediately before appointment, one with direct experience and knowledge of the needs of people or groups significantly affected by government decisions.[9] These appointments have not yet been announced.
An education and training function for officials of Commonwealth entities
- The Council’s functions include supporting education and training in ‘making administrative decisions and exercising administrative discretions’ and ‘the Commonwealth administrative law system’.[10] The ART Act does not prescribe how this function will be performed – we expect it will largely fall to the discretion of the Council.
Reporting on systemic issues
- One of the President’s functions is to inform Ministers, Commonwealth entities and the Council of any systemic issues identified in the ART’s caseload.[11] The Council is then required to include, in its annual report, a description of any of these referrals, and any action taken or proposed to be taken by the relevant Minister or Commonwealth entity to address the issue.[12]
- This reporting is intended to provide greater transparency and information about emerging issues and trends in administrative decision making. We will closely monitor this space.
If you have any questions, please get in touch with our specialist administrative law team.
Administrative Review Tribunal Act 2024 (Cth) (ART Act), ss 246, 248.
ART Act, s 249.
https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Adminreviewsystem/Interim_Report/section?id=committees%2freportsen%2f024867%2f78832, Recommendation 1.
ART Act, s 247.
AAT Act, s 49(1).
ART Act, ss 252, 254.
ART Act, s 254(2)(b).
ART Act, s 249(f).
ART Act, s 193(i).
ART Act, s 264(2)(a); s 294B.