The Administrative Review Tribunal Bill 2023: Three key features for Commonwealth decision-makers

On 7 December 2023, the Australian Government introduced two bills to parliament to abolish the Administrative Appeals Tribunal (AAT) and establish the Administrative Review Tribunal (ART):

1.    The Administrative Review Tribunal Bill 2023 (ART Bill), which proposes changes to the federal administrative review system in response to the recommendations of the Senate inquiry into the performance and integrity of Australia’s administrative review system; and

2.   The Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023, which amends several Commonwealth Acts and enables the transition to the ART.

Three important features of the ART Bill for Commonwealth decision-makers include:

1.    the constitution of the ART as the Guidance and Appeals Panel;

2.    new mechanisms for participating in administrative review; and

3.    the re-establishment of the Administrative Review Council.

The ART as the Guidance and Appeals Panel

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The Guidance and Appeals Panel (the Panel) is proposed as a new feature of the federal administrative review system. It is described as a ‘way of constituting the Tribunal at a more senior level’ for the purpose of:

• reviewing certain decisions of Commonwealth decision-makers; or
• re-reviewing certain decisions of the ART.^[i]

A key benefit of the Panel is the ability to address material errors of fact or law in ART decisions without parties needing to resort to the courts.

The ART may be constituted as the Panel in the following circumstances:

1.    Where the President is satisfied that an application for review raises an issue of ‘significance to administrative decision-making’, and it is appropriate in the interests of justice that the ART be constituted by the Panel;^[ii] or

2.    If, following an ART decision, a party applies to the President to refer the decision to the Panel because the decision:

a.    raises an issue of significance to administrative decision-making;^[iii] or  

b.    may contain an error of fact or law materially affecting the decision.^[iv]

A matter that raises an issue of ‘significance to administrative decision-making’ may include matters which:

• raise issues concerning the legality of an agency’s practice, procedure or policy;
• involve consideration of a new provision of an Act, or a provision which has not been previously the subject of administrative or judicial review;
• impact or alter an agency’s policy settings or practice across similar matters;
• involve inconsistencies or contrary outcomes to recent decisions on substantively similar matters;
• involve the correctness or preferability of a pattern of decision-making that affects a significant volume people; or
• raise issues of such complexity or controversy that they require review at a more senior level.^[v]

New mechanisms for participating in administrative review

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The ART features new mechanisms which will allow for Commonwealth decision-makers to establish their level of participation in administrative review for certain kinds of matters.

The introduction of election notices and participation notices will grant Commonwealth decision-makers the ability to:

1.    elect not to participate in a certain kind of proceeding on an ongoing basis; and

2.    choose to participate in a particular proceeding which is of a kind they have previously elected not to participate in. 

A decision-maker can elect not to participate in a certain kind of proceeding by giving an election notice to the ART. The Minister may make rules preventing the issuance of election notices for specific kinds of proceedings.^[vi]

A decision-maker who elects not to participate in a kind of proceeding will be considered a non-participating party, however they are able to ask for permission from the ART to participate in a particular proceeding of that kind via a participation notice.^[vii] 

The ART Bill notes: 

An election notice relates to a kind of proceeding. A participation notice relates to a particular proceeding of that kind. The election notice continues to apply to other proceedings of that kind.^[viii]

A non-participating party remains a party to the proceeding and still needs to comply with the ART’s legislation and orders in relation to the proceeding. The ART is also empowered to order a non-participating party to participate in a proceeding.^[ix] However, certain requirements, such as removal for failure to appear or non-compliance, do not apply to a non-participating party.^[x]

Election notices and participation notices present an opportunity to Commonwealth decision-makers (particularity those engaged in high-volume administrative decisions) to optimise and streamline their participation in the administrative review process.

Electing to become a non-participating party for certain kinds of matters can free a decision-maker from a significant amount of case management, while the use of participation notices will still allow a decision maker to participate in a proceeding where it is deemed necessary.

Administrative Review Council

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As recommended by the Robodebt Royal Commission Report and the Senate Legal and Constitutional Affairs Committee, the ART Bill re-establishes the Administrative Review Council (the Council), a body which had been defunded and effectively abolished in the 2015-16 Budget.

The specified members of the re-established Council are to include the ART President, the Commonwealth Ombudsman, the Australian Information Commissioner, and at least three, but not more than 10, other members appointed by the Governor-General.^[xi]

New features of the Council

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The Council returns featuring some changes from its previous incarnation, including:

• new membership requirements (as detailed above) to ensure that that the Council’s ex officio membership is limited to officeholders with a focus on administrative decision-making;^[xii]
• a discretion to inquire into, report on, and make recommendations to the Minister on a matter relating to any of the Council’s functions on its own initiative;^[xiii] and

• the removal of the requirement to produce reports on matters referred to it by the Minister (reflecting the Council’s status as an independent body that is not subject to ministerial direction).^[xiv]

Functions and powers of the Council

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The Council’s functions encompass its existing functions in subsection 51(1) of the Administrative Appeals Tribunal Act 1975, but with greater flexibility. The Council will function to:

• monitor the integrity and operation of the Commonwealth administrative review system;
• inquire into the adequacy of procedures related to the making of administrative decisions and the exercise of administrative discretion;
• inquire into systemic issues related to making of administrative decisions and the exercise of administrative discretions;
• inquire into the availability, accessibility, and effectiveness of review of administrative decisions and administrative discretions;
• develop and publish guidance in relation to the making of administrative decisions and exercise of administrative discretions; and
• support education and training for Commonwealth officials in relation to the Commonwealth administrative law system, administrative decision making, and the exercise of administrative discretions.^[xv]

The return of the Council represents a significant benefit for Commonwealth decision-makers and the broader administrative review system. The Council’s role in identifying and reporting on systemic issues, in addition to their function of educating and supporting Commonwealth officials on administrative decision making, serves to strengthen the consistency, competency and confidence of decision-makers across the Commonwealth.

[i] Administrative Review Tribunal Bill 2023 (Cth) cl 121.

[ii] Ibid sub-cl122(1)(b).

[iii] Ibid sub-cl124(2)(b)(i).

[iv] Ibid sub-cl124(2)(b)(ii).

[v] Explanatory Memorandum, Administrative Review Tribunal Bill 2023 (Cth) 108.

[vi] Administrative Review Tribunal Bill 2023 (Cth) sub-cl 60(2); Explanatory Memorandum, Administrative Review Tribunal Bill 2023 (Cth) 66.

[vii] Administrative Review Tribunal Bill 2023 (Cth) sub-cl 62(1).

[viii] Administrative Review Tribunal Bill 2023 (Cth) sub-cl 62(1).

[ix] Ibid sub-cl63(2)

[x] Ibid sub-cl 61(1).

[xi] A member must have knowledge or experience in a specified area or be a senior official of a Commonwealth entity: Administrative Review Tribunal Bill 2023 (Cth) sub-cl 254(1).

[xii] Explanatory Memorandum, Administrative Review Tribunal Bill 2023 (Cth) 206.

[xiii] Administrative Review Tribunal Bill 2023 (Cth) sub-cl 249(2).

[xiv] Explanatory Memorandum, Administrative Review Tribunal Bill 2023 (Cth) 209.

[xv] Administrative Review Tribunal Bill 2023 (Cth) cl 249; Explanatory Memorandum, Administrative Review Tribunal Bill 2023 (Cth) 208.