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Countdown to the Administrative Review Tribunal - 4 weeks to go

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It is now 4 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. If you missed our first insight, catch up on it here[1].

In this insight, we will cover one of the unique new features, the introduction of the Guidance and Appeals Panel (GAP).

What is the GAP?

The GAP is a new concept present in the ART structure - it was not a feature of the AAT.

According to Parliament, the GAP is intended to provide a mechanism for escalating significant matters and addressing errors in Tribunal decisions.[2] The GAP will exercise the ART’s decision making function and will have the power to conduct merits reviews of decisions and make a new decision afresh.[3]

Access to the GAP is largely limited to matters that concern an ‘issue of significance to administrative decision-making’. Referral to the GAP is at the discretion of the President. The inaugural President of the ART is the Honourable Justice Emilios Kyrou AO, who is the current President of the AAT.

A matter can be referred to the GAP under two different pathways:

  1. The President refers an application for review straight to the GAP;[4] or
  2. A party to a decision made by the ART makes an application to the President requesting that the matter is referred to the GAP for a second merits review.[5]

We’ve considered each in further detail below.

What are ‘issues of significance to administrative decision-making’?

There is no definition of matters that raise ‘issues of significance to administrative decision-making’.

Parliament envisioned these ‘may include matters that are novel, complex, could potentially affects large numbers of individuals, or involve significant systemic issues that require guidance’[6]. Some examples offered in the Explanatory Memorandum include issues concerning the legality of an Agency’s policies, new legislation or issues of such complexity or controversy that they require review by the Tribunal constituted at a more senior level.[7]

First pathway: straight to the GAP

If a matter raises an issue of significance to administrative decision-making, and the President determines it is in the interests of justice, then the President may refer the application straight to the GAP for review.[8]

The President can do this wholly on their own initiative. The ART Act does not provide a method for parties to request that their matters are considered for this pathway.

There is no obligation on the President to refer any matters to the GAP, and there is no requirement in the ART Act for the President to provide reasons for why matters are or are not referred.

KWM is watching this space closely. We will share our observations as we learn more about how the President will exercise this discretion.

Second pathway: referral to the GAP after ART review

The second pathway for engaging the GAP is seeking referral to the GAP after ART review. This is a very unique addition to the ART. When it is utilised, this pathway provides for a second opportunity for merits review.

Parties who have received a decision of the ART can make an application to the President requesting that the decision be referred to the GAP. This won’t be available if the decision in question was already made by the GAP or a judicial member of the ART[9].

The Act also foreshadows that the ART Rules (which are yet to be finalised) can further limit the types of matters or circumstances in which applications can be made. Applications will need to be made within 28 days of receiving the ART’s decision[10].

In order to refer a Tribunal’s decision to the GAP, the President must be satisfied that the decision either:

  • raises an issue of significance to administrative decision-making;[11] or
  • contains an error of fact or law that has materially affecting the Tribunal decision.[12]

While the President might be satisfied that the decision may ‘contain an error of fact or law’, the GAP will not be conducting a review on the basis of identifying an error. The GAP remains a merits review jurisdiction and will be conducting a second merits review.

Though the references to ‘error of law’ and ‘appeal’ might suggest otherwise, it is not a judicial or appellate review of the Tribunal’s decision. The GAP will consider the matter afresh, but will continue to have access to the full record of the previous Tribunal proceeding.        

The introduction of the GAP does not impact the rights of parties to seek review by the Federal Court on questions of law.[13] However, a party has 28 days to commence proceedings with the Federal Court irrespective of whether an application requesting that the matter be referred to GAP is on foot. Making, and awaiting a response from, an application for referral to the GAP may take up substantial time in this small appeals window.

Access to a second merits review may be expensive for parties and contribute to delays in resolving disputes. We are interested to see whether this pathway contributes to efficient decision making or whether the duplication will impede the ART’s goal of resolving matters quickly, with little formality and expense.  

If you have any questions, please get in touch with our specialist administrative law team.

Explanatory Memorandum to the Administrative Review Tribunal Bill 2023 (Explanatory Memorandum), paragraph 749.

Explanatory Memorandum, paragraph 751.

Administrative Review Tribunal Act 2024 (ART Act), s 122.

ART Act, ss 123 and 128.

Explanatory Memorandum, paragraph 757.

Explanatory Memorandum, paragraph 757.

ART Act, s 122.

ART Act, s 123(4).

ART Act, s 125.

ART Act, s 128(2)(a).

ART Act, s 128(2)(b).

Reference

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