In just 5 weeks, on 14 October 2024, the Administrative Appeals Tribunal (AAT) will be replaced by the Administrative Review Tribunal (ART).
The establishment of the ART is significant and is not simply a ‘rebadging’ of the AAT. There are substantial legal and structural changes to the ART marked as ‘the most important reform of the federal system of administrative review for decades’[1].
Here at KWM, we are kicking off our countdown to the ART series. Each week until 14 October we will be examining a feature of the ART – and importantly, when practice directions for the ART are released, we will provide a practical summary for practitioners and industry.
We will be revisiting where this all began, the new features of the ART and what the changes mean for those looking to seek review of or defend decisions in Commonwealth Tribunal proceedings.
Why the change?
Since 1976, the AAT has been conducting independent merits review of administrative decisions made under Commonwealth legislation. This is a very broad mandate and includes various areas of law - from freedom of information and migration visas through to social services and child support.
The AAT’s role is critical to ensuring government is held accountable and that incorrect and non-preferable decisions are rectified. Review in the AAT is an important juncture in a dispute and usually the last opportunity for merits review of a decision – currently, after the AAT has conducted a review, the decision can only then be further reviewed on a question of law.
In recent times, the AAT’s reputation has been damaged due to some allegations of cronyism, delays and outdated technology. A turning point was the Royal Commission into the Robodebt Scheme, which made recommendations in a report[2] tabled on 7 July 2023 about the AAT - including publication of first instance decisions and re-instating “the Administrative Review Council or a body with similar membership and functions”[3].
Fast forward to 3 June 2024 and the Administrative Review Tribunal Bill 2024 has passed both houses of Parliament and received assent[4], establishing the ART as a replacement for the AAT, and re-establishing the Administrative Review Council.
What is changing?
While the ART has the same overarching function as the AAT to provide “an independent mechanism of review”[5], there are some major differences in what is available to the Tribunal and how it will operate.
A key change is the introduction of a new process for the appointment of non-judicial members. 35 new members have been appointed directly to the ART and so far 181 members will form the new ART. Details of these appointments can be found here.
Other key changes include restructured jurisdictions. There will be eight areas of law, compared to the nine divisions that made up the AAT structure. The Freedom of Information division will no longer be stand alone. All taxation and business divisions have been combined into one and the ART will have a new ‘protection’ area – it’s not yet clear what this will involve.
The ART Rules have been published[6] for consultation and comments closed on 5 August 2024. We are eagerly awaiting the final Rules and any practice directions from the ART, which are likely to be illuminative of practical changes to the conduct of reviews. These key changes require their own individual insights and will be the topic of future KWM alerts, so stay tuned:
- The Guidance and Appeals Panel
- Tribunal Guidance Decisions
- The Administrative Review Council
- New practice directions, divisions and decision publication requirements
If you have any questions, please get in touch with our specialist administrative law team.
The Hon Mark Dreyfus KC MP, Administrative Review Tribunal Bill 2023, Second reading speech, < https://www.ato.gov.au/law/view/document?DocID=SRS/20240040/00001&PiT=99991231235958>
Report into the Royal Commission into the Robodebt Scheme – <https://robodebt.royalcommission.gov.au/publications/report>.
Report into the Royal Commission into the Robodebt Scheme – List of recommendations – Chapter 20 <https://robodebt.royalcommission.gov.au/publications/report>
Administrative Review Tribunal Bill 2024 < https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r7117>.
Administrative Review Tribunal Act 2024 <https://www.legislation.gov.au/C2024A00040/asmade/text>.
Administrative Review Tribunal Rules 2024 – Public Consultation <https://consultations.ag.gov.au/legal-system/art-rules/>.