The transition from AAT to ART marks a significant development in Australia’s federal administrative law framework. The Administrative Appeals Tribunal (“AAT”) was the primary merits review body at the Commonwealth level and allows for the review of decisions made by government departments and agencies or specialist merits review bodies under 400+ Commonwealth and Norfolk Island statutes. Its principal object of the A.A.T. that is consistent with merits review – is to be a single general appeals tribunal that would facilitate the standardisation of review decisions across a whole range of Commonwealth Government decision-makers. From 14 October 2024, the Administrative Review Tribunal (ART) will replace the Administrative Appeals Tribunal (AAT). On 3 June 2024, both houses of Parliament passed the Administrative Review Tribunal Act 2024 (ART Act).
Merits Review
In essence, administrative law and respective tribunals is practiced and applied in accordance with promoting the rule of law. That is, that ‘no person is above the law.’ The decision reconsiders a decision by looking at a case ‘de novo’ or ‘a fresh’ to ‘stand in the shoes’ of the original decision maker and considers all of the relevant facts. The tribunal applies merits review principles rather than judicial review. It conducts a full review by finding facts and exercising any discretion given to the original decision-maker. The ART must make the correct or preferable decision. Party representatives must use their best endeavours under section 56(2) to assist the tribunal. The “correct or preferable” decision means: there is only one decision is lawful and therefore “correct”; or there are multiple or various decisions that are lawful, and the tribunal must choose the “preferable” one.
Objectives of the Transition from AAT to ART
The formation of the ART aimed to address existing challenges with administration including backlogs, delays in appeal processing to which allows for a streamlined process. The objective of this transition is to be an independent, accessible, efficient and fair within the federal administrative review process. Section 9 of the ART Act aims to improve transparency and raise the quality of decision-making. These changes are intended to build public trust and promote confidence in the federal review process.
Powers of the ART Following the Transition from AAT to ART
Under section s105, in relation to the reviewable decision, the Tribunal must make a decision:
- affirming the reviewable decision; or
- varying the reviewable decision; or
- setting aside the reviewable decision and:
- making a decision in substitution for the reviewable decision; or
- remitting the matter to the decision – maker for reconsideration in accordance with any orders or recommendations of the Tribunal.
Key Similarities: AAT and ART
- Operates under Merit’s Review principles
- Requirements for decision maker to provide reasons for decision
- Decision cannot be altered
- Parties must be notified of an application
- Being a Judge of the Federal Court is a qualification for being appointed President
Key Distinctions: AAT and ART
- AAT: The Non-Judicial Deputy President, Senior Member and Member needs at least 5 years’ experience as a legal practitioner opposed to more than 7 years in the ART
- Under the ART Act, the power of registrars allow for a broader exercise of power
- The AAT did not reference ‘independence’ and lacked statutory objectives until much later (2015)
- Unlike the AAT, the ART Act expressly requires the ART to perform a normative role in its decision-making.
Structure of the ART
The following types of decision may be reviewed by the ART under 8 jurisdictional areas led by either the President or a Deputy President:
- General
- Intelligence and Security
- Migration
- National Disability Insurance Scheme (NDIS)
- Protection
- Social Security
- Taxation
- Veteran’s and Worker’s Compensation
Within each jurisdictional area, there may be lists at the discretion of the President that allows for the Deputy President or Senior Member that will focus their expertise on particular types of application. Aimed
Under section 10 of the ART Act, the ART includes four (4) levels of membership
- The President;
- Deputy President (Judicial and Non-Judicial
- Senior Member
- General Member
Guidance and Appeals Panel (GAP) under the Transition from AAT to ART
The GAP is one of the most substantial changes to the AAT that allows a hearing of proceedings to be held at first instance. The President may refer a new or existing proceedings to the GAP under the following circumstances
- An application to be reviewed which is yet to be heard by the ART can be referred for review under section 122 of the ART Act. As Pre-requisite, the application must raise an issue of significance in relation to decision making and if it is in the interests of the administration of justice.
- Under section 128 of the ART Act, the President may refer the ART’s decision for a second review by the GAP. Before doing so, the President must be satisfied that:
- The ART’s decision raises an issue of significance to administrative decision-making.
- the ART’s decision may contain an error of fact or law that materially affected the decision.
The GAP does not focus solely on errors in the original ART decision. It may also make its own findings of fact and introduce new evidence. Section 109 of the ART Act refers to these as ‘Tribunal Guidance Decisions’. Under section 110, the ART must consider decisions made by the GAP.
Administrative Review Council (ARC)
As an already established Council by the AAT in 1976, the ARC’s function was to act as an independent policy advisory board that could make inquiries and advise upon the administrative system at a Federal level. The Council also provides advise towards the improvement of the existing decision-making practice and facilitates the ongoing training of decision-makers. After the government defunded the ARC, Part 9 of the ART Act reestablishes it. The Council now consists of the President, the Commonwealth Ombudsman, the Australian Information Commissioner, and at least three but no more than ten other members under section 247. Under section 249 the ARC’s function it to monitor the integrity and operation of the review process. It does so by inquiring into the adequacy of procedures, develop and publish guidance and confronting systemic issues.
Conclusion
The transition from the AAT to the ART is a significant change within Australia’s administrative justice system. The introduction of structural reform that includes operational changes, establishment of panels to ensure consistency and a re-establishment of the ARC further demonstrates the need for change. The effects of the transition will ensure efficiency but will serve to the needs of an increasingly diverse community. Ultimately the transition can be seen as a representation of Australia’s evolving legal landscape.
Jake McKinley notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Jake McKinley are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
